On the eve of what is now commonly referred to as the annual strike season, the Labour Appeal Court, in the matter of Chamber of Mines of South Africa and Others versus Amcu and Others was once again called on to consider a series of complex issues which invariably arise within the context of the right to strike.
The dispute, which initially came before the Labour Court, took the form of an urgent application brought by the Chamber of Mines seeking to declare a strike called by the Association of Mineworkers and Construction Union (Amcu) in the gold mining industry unprotected.
The chamber argued that Amcu members were prohibited from striking as they were bound by a collective agreement concluded in 2013 between the chamber, on behalf of Harmony Gold, AngloGold Ashanti and Sibanye Gold on the one hand, and the National Union of Mineworkers (NUM), Solidarity and Uasa on the other. At the time the agreement was concluded, these three unions collectively represented the majority of the employees at each workplace and consequently the agreement had been extended to employees who were not members of NUM, Solidarity or Uasa.
Amcu argued that it was not bound by the collective agreement in question as it was the majority union at a number of the employers’ individual mines. In order to determine whether Amcu represented the majority of the employees at an employer’s workplace, the Labour Appeal Court had to consider the meaning of the “workplace”.
The Labour Relations Act (LRA) defines the workplace as “the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation constitute the workplace for that operation.”
In the Chamber of Mines decision, Judge H Cele took the view that the definition of workplace should be interpreted to read that the general rule is that all places where the employees of an employer work constitute a single workplace. The second part of the definition should be read as a proviso to this general rule. Only if the two or more operations are independent of one another by reason of size, function and organisation would these operations constitute distinct workplaces.
The factors which, according to Judge Cele, suggest an integrated business and therefore a single workplace include: that all operational decisions are subject to the approval of a central board; that operating procedures are standardised across an employer’s branches and are ultimately determined by a central board; and that financial management and the production planning of an employer’s business are centralised.
Looking at these factors, the judge concluded that each of the employers in question operated a single workplace and that Amcu would have to demonstrate that it represented the majority of employees across each employer’s single workplace – not only at specific mines – in order to be regarded as the majority union. Having established that each employer party to the collective operated a single workplace, the Labour Appeal Court rejected Amcu’s claim that it was a majority trade union.
Having rejected Amcu’s claim that it represented the majority of employees in certain instances, the Labour Appeal Court determined that Amcu members were bound by the collective agreement concluded by the chamber and could not strike.
To conclude otherwise, and have Amcu represent the minority employees and succeed in negotiating a new wage agreement, despite the existence of a binding collective agreement, would be contrary to the intention of the legislature.
Citing with authority Transnet SOC Ltd versus National Transport Movement and Others, Judge Cele held that the LRA did not preclude minority union members from exercising their right to strike. However, the rights of Amcu members to strike must be seen in the context of the majority unions’ rights to collectively bargain with employers. If one were to accept that one or more unions represented the majority of the employees in the workplace, it would be contrary to the constitutional democracy to prevent majoritarianism from prevailing.
The Labour Appeal Court decision again highlights the challenges facing minority unions seeking organisational rights as a first step towards collective bargaining. Many argue that one underlying cause of the Marikana tragedy may be the challenges faced by Amcu to secure organisational rights or a seat at the bargaining table, despite purportedly representing thousands of employees in the sector.
Outside the mining sector, the Labour Appeal Court’s construction of the workplace could have a very different outcome in light of rapidly changing business models. The reality of modern multifaceted corporations is that not all operational decisions taken at a branch level are subject to the approval of a central board; geographic and cost efficiency considerations may dictate that a business conduct its financial management and production planning at a branch level; and it may be impractical to conduct recruitment centrally. The evolving and expansive nature of modern business may result in more branches being classified as independent workplaces, thereby potentially requiring employers to accommodate more than one union.
While the objective of recognising a union such as Amcu at a particular mine may be genuine, one cannot but wonder at which point multiple union representation in the workplace would justify accommodating further unions, even at the cost of majoritarianism. There is, after all, no correlation between the number of unions granted organisational rights and the quality and effectiveness of the union representation in a particular employer’s workplace.
Bearing in mind that labour relations and, more particularly, the facilitation of trade union representation must be manageable for employers both financially and logistically, perhaps the debate should shift from being about majoritarianism and increasing the number of unions exercising organisational rights to one around how one can ensure union representation is more effectively used.
In light of the Labour Appeal Court’s latest construction of the workplace and the growing move away from the traditional centralised business, outside of the mining sector employers with a seemingly small workforce may find themselves bargaining collectively with different unions representing employees at each independent branch.
Ironically, on the other hand, given the centralised nature of the mining industry and legislature’s support for majoritarianism, the challenges facing minority unions – even those unions representing thousands of employees in the mining industry seeking to secure a seat at the bargaining table – are far from over.
Perhaps the only certainty in the debate is the legislature’s continued support for majoritarianism. This would mean the battle for power between opposing unions and between unions and employers for recognition will continue to be the order of the day, with the right to strike being the only real tool at the disposal of the employee caught at the centre of the debate.
Anastasia Vatalidis is director at Werksmans Attorneys