Home

Breaking News



The Binding Nature of Collective Agreements

By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

 

In the recent case of Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (JA103/2014) [2016] ZALAC 11(24 March 2016), the Labour Appeal Court faced a contention by AMCU that it and its members were not bound by a collective agreement concluded by employers and trade unions in terms of section 23 of the Labour Relations Act (“the LRA”).

 

The issues dealt with by the Court were complex and required an examination of the facts and the law applicable to the dispute.

 

The attack by AMCU was primarily aimed at the principle of majoritarianism which permeates the existing industrial relations system established by the LRA.

 

The Courts have already found that the LRA has a clear preference for centralized collective bargaining where the majority parties in an industry or workplace (both employers and Unions) bargain and conclude collective agreements on behalf of all other parties in that specific industry or workplace.

 

The LRA provides mechanisms to assist with this process. Section 32 of the LRA permits the Minister of Labour to extend a collective agreement concluded in a bargaining council to non-parties in the industry in certain circumstances, while section 23 permits the parties themselves to extend the agreements to non-parties (outside of a bargaining council) in the workplace if certain requirements are met.

 

AMCU contended, inter alia, that the individual mines of the various employers who belonged to the Chamber of Mines were independent workplaces.

 

The reason for adopting this viewpoint was that AMCU enjoyed majority representation at certain of the mines and the implication of this, as AMCU argued, was that since each mine constituted a separate workplace, any collective agreements concluded between employers and the other Unions at the Chamber of Mines could not be extended to cover AMCU and its members at the mines at which it enjoyed majority representation.

 

AMCU also argued (opportunistically, it would seem) that the Chamber of Mines was the equivalent of a bargaining council established under the LRA and accordingly only the Minister had the requisite power to extend the provisions of a collective agreement to non-parties in terms of section 32 of the LRA.

 

The implication of this, AMCU argued, was that the Minister had not extended the agreement concluded between employers and other trade unions and that it and its members were not bound by its provisions.

 

In opposition, the Chamber of Mines and the various employers argued that all of their mines collectively constituted a single workplace and to that end AMCU only enjoyed a minority presence in that workplace.

 

As a consequence they were able to extend any collective agreement concluded with the majority unions in the workplace.

 

It also countered AMCU’s argument that only the Minister could extend a collective agreement to non-parties by asserting that a fundamental difference existed between the extension of a collective agreement in terms of section 23 and extension by the Minister in terms of section 32 of the LRA, as pointed out above.

 

The Labour Appeal Court was of the view that the question of determining what constitutes a ‘workplace’ as defined in the LRA was a matter of fact and not interpretation. AMCU was required to establish that each individual mine was a separate and independent workplace, yet it failed to adduce any evidence in support of its contention.

 

In particular, AMCU failed to show that each of the mines was an independent operation in terms of their size, function or organisation.

 

The Court also found that AMCU had clearly failed to distinguish between the provisions of sections 23 and 32 of the LRA. Section 32 dealt with the extension of collective agreements concluded at a bargaining council, while section 23 permitted the extension of collective agreements concluded outside a bargaining council at either a workplace or sectoral level.

 

On the contrary, the Chamber of Mines was able to adduce evidence which clearly indicated that it was not a bargaining council in terms of the LRA and accordingly the collective agreement concluded between the employers and the other unions could not be extended by the Minister in terms of section 32.

 

Section 23 permitted employers and unions to extend a collective agreement to non-parties if those non-parties are identified in the agreement, if the agreement expressly binds those non-parties and if the union (or unions) who are party to the agreement represent the majority of employees employed by the employer in a particular workplace.

 

AMCU also raised a constitutional challenge against section 23, alleging that the provision, read with section 65 of the LRA and the definition of ‘workplace’, infringed on its rights to collective bargaining and strike.

 

The basis of its constitutional challenge was that section 23 prohibited a minority union from striking when it was bound by a collective agreement that was extended to it.

 

The Court found that the principle of majoritarianism was not unconstitutional and that it was consonant with the Constitution, international law and the purpose of the LRA.

 

The Court further found that the extension of collective agreements on the basis of majoritarianism is both rational and reasonable as it ensures labour peace at the workplace.

 

The Court accordingly held that section 23 did not infringe any other constitutional rights.

 

For more information please contact Neil Coetzer at or (011)  783 8711 /(011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za

Courses and Workshops

 

                                         

 

 

How to prepare for your unfair dismissal dispute/case at the CCMA/Bargaining Council

24 & 25 May 2018 (Fully Booked)

Emperors Palace: Convention Centre

12 & 13 July 2018

Emperors Palace: Convention Centre

Health and Safety Representative Course

31 May 2018

Southern Sun: OR Tambo International Airport

21 June 2018

Protea Hotel By Marriott Tyger Valley: Cape Town

B-BBEE / Transformation

31 May 2018 (Fully Booked)

Emperors Palace: Convention Centre

28 June 2018

Emperors Palace: Convention Centre

Employment Equity Committee Training

01 June 2018

Emperors Palace: Convention Centre

21 June 2018

Protea Hotel Fire & Ice: Menlyn

Skills Development Legislation and Review

06 June 2018

Emperors Palace: Convention Centre

19 July 2018

Protea Hotel By Marriott Tyger Valley: Cape Town

25 July 2018

Southern Sun: Elangeni: Durban

Hazard Identification & Risk Assessment Course

14 June 2018

Southern Sun: OR Tambo International Airport

22 June 2018

Protea Hotel By Marriott Tyger Valley: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

22 June 2018

Protea Hotel Fire & Ice: Menlyn

27 June 2018

Southern Sun: Elangeni: Durban

Occupational injuries and diseases in the workplace

12 July 2018

Hotel Fire & Ice: Menlyn

20 July 2018

Protea Hotel By Marriott Tyger Valley: Cape Town

 

 Our Clients