Anglo American Coal South Africa v CCMA and Others (JR 2115/20) [2023] ZALCJHB 57; (2023) 44 ILJ 1500 (LC) (13 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JR 2115/20

In the matter between:

ANGLO AMERICAN COAL SOUTH AFRICA Applicant

and

the coMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER MOAHLOLI NYAMA N.O. Second

Respondent

SOLIDARITY

Third Respondent

UASA Fourth

Respondent

THE NATIONAL UNION OF MINEWORKERS Fifth

Respondent

Heard: 6 July 2022

Delivered: 13 March 2023

JUDGMENT

NINDI AJ

Introduction

[1] This is a review application brought by the Applicant in terms of, inter alia section 145(1)(a) of the Labour Relations Act (LRA)[1], wherein the Applicant seeks to review and set aside an arbitration award issued by the Second Respondent (Commissioner), under the auspices of the First Respondent (CCMA).

[2] The applicant seeks to review the award dated 12 November 2020 which granted the coalition (Coalition) formed between the Third (Solidarity) and Fourth (UASA) Respondents’ organisational rights in terms of sections 12 (access), 13 (payment of union dues) and 15 (paid leave for union activities) of the LRA.

Background

[3] The Applicant terminated the organisational rights which UASA and Solidarity enjoyed at its workplace. UASA and Solidarity then formed the Coalition and sought sections 12, 13 and 15 organisational rights from the Applicant.

[4] After no collective agreement was entered into, the Coalition referred a dispute to the CCMA on 20 May 2019 in terms of section 21(4) of the LRA. NUM was joined to the proceedings. Conciliation failed and the matter proceeded to arbitration. A pre-arbitration

minute was concluded between the parties. The pre-arb minute recorded the parties’ agreement that the arbitration would proceed by means of the parties exchanging affidavits and by delivering written submissions. The arbitration was set down for hearing on 28 and 29 October 2019 before commissioner Mokoena.

[5] The parties agreed that no oral evidence would be adduced and that the matter would proceed on the evidence contained in the affidavits exchanged. The Coalition delivered their closing submissions on 29 October 2019 and the Applicant and NUM filed their opposing submissions on 1 November 2019.

[6] On or about 11 November 2019, commissioner Mokoena delivered her award, in terms of which she found that the Coalition was not entitled to organisational rights in terms of sections 12, 13 and 15 of the LRA and dismissed the Coalition’s application. The Coalition brought a review application seeking the review and setting aside of commissioner Mokoena’s award. The parties to that review application consented to an order reviewing and setting aside that award and remitting the matter back for a hearing de novo before a commissioner other than commissioner Mokoena.

[7] The matter was then set down for hearing before Commissioner Moahloli Nyama on 21 October 2020. The matter was to once again proceed on the basis of the affidavits and the combined bundle. No oral evidence was made. The Coalition delivered submissions on 20 October 2020. The Applicant did not deliver any further submissions. On 21 October 2020, the Applicant and the Coalition made oral submissions. NUM, who was afforded the opportunity to make submissions, albeit late, made submissions on 28 October 2020. The Coalition did not deliver any replying submissions.

[8] The award, dated 12 November 2020, granted the Coalition organisational rights in terms of sections 12, 13 and 15 of the LRA.

NUM’s affidavit

[9] Initially, the fifth respondent/intervening party (NUM) was not cited in the Review Application. NUM brought a joinder application and the Applicant and the Coalition have all delivered

notices of consent to joinder, indicating their consent to NUM being joined to the Review Application.

[10] The NUM affidavit ends with a paragraph stating that the award ought to be reviewed and set aside.

[11] In their heads of argument, the Coalition submitted an application to strike out NUM’s affidavit. Despite their Notice of consent to joinder, the Coalition has taken issue with the NUM affidavit, submitting that their prayer that the award be reviewed

and set aside is irregular and impermissible. The affidavit is objected to by the Coalition on the basis that it is in violation of the accepted rules relating to motion proceedings and will prejudice the Coalition should it be allowed to form part of the evidence before Court.

[12] In this regard, the Coalition relied on the Kruger and Others v Aciel Geomatics (Pty) Ltd,[2] where Waglay JP held that a respondent in a motion application cannot decide to be another applicant. Such a respondent is not permitted to build a case for the relief sought by the applicant in their notice of motion, under the guise of a respondent who had elected not to join issue with the applicant.

[13] In considering the joinder application and the affidavit submitted, there is no doubt that, as the majority trade union at the Applicant, NUM has a direct and substantial interest in the matter. The evidence submitted by NUM is a page long and it, in summary, deals with the threat of proliferation of rights should organisational rights be granted to the Coalition.

[14] I have not seen before me an application to strike out the fifth respondent’s affidavit by the Coalition, save for the submissions made in the heads of argument.

[15] I am therefore inclined to strike out the paragraph requesting the court to review and set aside the award, but not to strike out the NUM affidavit in its entirety.

Background to the parties’ dispute concerning organisational rights

[16] On or about 17 October 2017, the Applicant and NUM concluded and entered into a Recognition and Procedural Agreement. The most relevant clauses of the Recognition Agreement for current purposes are:

16.1 clause 4.20 which defines “Workplace” to mean all of the operations and offices of the Company (being the Applicant), which offices include its shared services and head office;

16.2 clause 6.1 states that the Company shall have one recognition unit which shall also be the Bargaining Unit. The Recognition/Bargaining Unit shall comprise all employees employed therein at the various Operations;

16.3 clause 6.2 which sets the required level of representivity for sections 12 and 13 of the LRA organisational rights at 20%;

16.4 clause 6.3 which sets the required level of representivity for section 15 of the LRA organisational rights at 40% + 1; and

16.5 clause 6.5.4 which states that any other registered trade unions seeking organisational and/or collective bargaining rights shall be required to meet the thresholds set in, inter alia, clauses 6.2 and 6.3 (of the Recognition Agreement).

[17] On 13 March 2019, the Applicant transmitted letters to Solidarity and UASA, wherein the Applicant afforded them 90 days to meet the minimum representative thresholds as set out in the Recognition Agreement, failing which the organisational rights enjoyed by them would be terminated. Neither Solidarity nor UASA could meet the required thresholds of representivity and the organisational rights they enjoyed were terminated with effect from 2 July 2019.

[18] On or about 5 April 2019, Solidarity and UASA formed the Coalition. On 12 April 2019, the Coalition transmitted a notice in terms of section 21(1) to the Applicant. No collective agreement was entered into, a dispute was declared, and the matter proceeded to

conciliation (which failed) and then arbitration.

[19] It is common cause between the parties that Solidarity and UASA enjoyed organisational rights in terms of sections 12, 13, 15 and 16 of the LRA from the late 1990s/early 2000s until they were terminated in the middle of 2019. The genesis of these organisational rights for Solidarity and UASA were a series of letters, agreements and memoranda from the late 1990s/early 2000s, which were all pursuant to the Chamber of Mines (now the Minerals Council) discussions. In terms thereof, for a union to gain recognition at a mine and qualify to have organisational rights, that union had to have a representivity level of at least 10%.

[20] These agreements are no longer enforceable, and neither are the thresholds stipulated in them. The nature and composition of the workplace, from when those thresholds were established, has completely changed.

[21] The representivity levels of UASA, Solidarity and NUM were not in dispute. As of 2019, NUM’s representivity was at 73%, Solidarity’s was at 7% and UASA’s at 4%. Collectively, the Coalition represented 530 employees of a total of 5160 employees, NUM represented 3763 employees and non-union members stood at 841 employees. Accordingly, as at the time of the arbitration, the Coalition’s representivity was 11%. The Coalition, therefore, based its claim for the organisational rights that it sought on its representivity of 11%.

[22] It is interesting to note that Solidarity’s representivity level remained consistent at 7% for the 9 years between 2010 to 2019. However, UASA’s representivity declined from 7% to 4%. However, NUM’s representivity increased from 67% to 73%. The non-unionised percentage of the Applicant’s workforce is significantly higher than that of the Coalition.

[23] Despite the representivity levels, UASA and Solidarity exercised sections 12, 13, 15 and 16 organisational rights even after the Recognition Agreement of 2017 with NUM.

The Applicant’s submission

[24] The Applicant submitted that the Commissioner committed numerous reviewable irregularities that render his eventual finding and award unreasonable. It submitted that the Commissioner allowed the Coalition, through nothing more than its member unions’ bygone legacies, to utilise section 21(8C) and section 21(8) of the LRA to retain influence and rights in the workplace. Its representivity level simply does not entitle it to organisational rights. Incumbents, who have lost their representivity, have no inherent reason or basis to enjoy the benefits of their bygone representivity where their current representivity, interest and/or influence does not justify it.

[25] The Applicant submitted that its workplace had changed. The Coalition no longer has influence in the workplace. The cumulative representivity of the Coalition simply does not justify the disregard of the Recognition Agreement. It is only in exceptional circumstances that organisational rights in terms of section 21(8C) of the LRA are granted.

[26] The Applicant submitted that the Commissioner improperly attached relevance to the Coalition partners’ historical enjoyment of organisational rights to the exclusion of the other factors that he was obliged to consider. The Commissioner, throughout the award, placed heavy, if not determinative, reliance on the historical 10% threshold. The 10% level of representivity was conceived over 20 years ago, during the late 1990s/early 2000s, under different circumstances and at a different time. It is no longer the yardstick. The mere fact that the 11% representivity of the Coalition is above the 10% historical threshold does not entitle them nor does it have any relevance to their entitlement to the organisational rights that they seek.

[27] It was unreasonable for the Commissioner, considering these figures, and the Coalition’s lessening representivity, to conclude that the Coalition represented a significant interest or substantial number of employees in the workplace.

[28] It was common cause that AMCU and NUMSA had attempted to obtain organisational rights with the Applicant and that they were actively organising in the coal mining sector. Should the Coalition be granted organisational rights with 11% representivity, despite the Recognition Agreement, it would signal to NUMSA and AMCU that they too could obtain organisational rights with limited representivity. The Applicant would be left in the untenable position of being hard-pressed not to grant NUMSA or AMCU organisational rights with 11% representivity. This would, it was respectfully submitted, necessarily lead to a proliferation of trade unions. Accordingly, the Commissioner committed a reviewable irregularity in finding that NUMSA and AMCU’s serious inroads into the mining industry had no impact on the Applicant’s workplace when it came to considering whether the Coalition should enjoy organisational rights.

[29] In the Applicant’s affidavit in the arbitration proceedings, the Applicant stated that membership subscriptions were deducted at a colliery level and not centrally. The Commissioner suggests that the Applicant’s submission loses sight of the fact that the Applicant’s collieries are not separate workplaces in terms of the Recognition Agreement. While the Applicant’s payroll system may be sophisticated, the evidence before the Commissioner was that it still falls to the collieries to feed the necessary information into that payroll system. The Coalition’s level of representivity simply does not justify this administrative burden, so the Applicant argued.

[30] There was no basis for the Commissioner, absent any evidence, to hold it against the Applicant and/or attach any relevance to the fact that the Applicant only terminated the Coalition members’ organisational rights in 2019.

[31] There was simply no basis in law and/or on the evidence upon which the Commissioner could have found that the Coalition should be entitled to co-exist with the NUM.

The Coalition’s submissions

[32] The Coalition submitted that the requirements of section 21(8C)(b) are disjunctive. Consequently, the power to grant organisational rights to a minority trade union may be exercised, either because the trade union represents a significant interest, or because it represents a substantial number of employees in the workplace. The juxtaposition of these two concepts means that a trade union may represent a significant interest in the workplace even though it does not represent a substantial number of employees therein.

[33] The membership figures of Solidarity and UASA remained relatively stable over the past decade, during which period the Applicant considered them as relevant and significant in its workplace. It was common cause that the applicant continued to recognise Solidarity and UASA beyond October 2017 (when the Recognition Agreement was concluded) until March 2019, when the termination notices were issued.

[34] It is permissible, and not untenable, to have regard to historic circumstances when granting organisational rights. In fact, the LRA demands that the organisational history of the workplace must be considered when an application for organisational rights is considered.

[35] The Commissioner cannot be faulted for having regard to the historical position when assessing the proliferation of trade unions as well as the financial and administrative burden.

[36] There was simply no evidence before the Commissioner to the effect that the threshold applied in the industry over decades had been overtaken by events and changes to the industry and/or workplace. There was equally no evidence before the Commissioner to the effect that the nature and context of the workplace and the employment environment were completely different.

[37] The Coalition based its claim on the fact that it represents a significant interest and/or because it represents a substantial number of employees in the workplace, as required by section 21(8C) of the LRA.

The Test for Review

[38] The applicable review test is well-established now. The seminal case of Sidumo and another v Rustenburg Platinum Mines Ltd and others,[3] held that:

‘…the better approach is that section 145 [of the LRA] is now suffused by the constitutional standard of reasonableness… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.’

[39] The task of the reviewing court was succinctly set out in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others:[4]

‘…the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.’

[40] Against the above principles and test, I will proceed to consider the Applicant’s review application.

The Law

[41] The following was recently stated by the Labour Appeal Court (LAC) in Municipal and Allied Trade Union of SA v Central Karoo District Municipality and Others:[5]

‘Section 21(8C) was enacted in response to the decision of the Labour Court in Western Cape Workers Association v Gansbaai Marine which held that a s 18 threshold agreement prevailed over a CCMA’s decision granting stop-order rights to a trade union whose membership did not reach the agreed threshold of representativeness. The amendment reverses this position. Section 21(8C) permits a CCMA commissioner to override a s 18 threshold agreement. As a consequence, a commissioner may now grant s 12, 13 or 15 rights to trade unions who do not meet the threshold established in a s 18 agreement.’ [Footnotes omitted]

[42] Section 21(8) provides:

‘(8) If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the Commissioner –

(a) must seek –

(i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and

(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union;

(b) must consider –

(i) the nature of the workplace;

(ii) the nature of the one or more organisational rights that the registered trade union seeks to exercise;

(iii) the nature of the sector in which the workplace is situated;

(iv) the organisational history at the workplace or any other workplace of the employer;

(v) the composition of the work-force in the workplace taking into account the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories

of non-standard employment; and

(c) may withdraw any of the organisational rights conferred by this part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.’

[43] Section 21 (8C) provides:

‘Subject to the provisions of subsection (8), a Commissioner may in an arbitration conducted in terms of subsection (7) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that does not meet thresholds of representativeness established by a collective agreement in terms of Section 18, if –

(a) all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and

(b) the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.’

[44] As stated by the Constitutional Court in Association of Mineworkers and Construction Union and others v Chamber of Mines of SA and others[6] (Chamber of Mines):

‘Majoritarianism is both a premise of and recurrent theme throughout the LRA. Our case law has long recognised this, from at least the judgment in Kem-Lin, but probably earlier. In Kem-Lin, Zondo JP said:

“The legislature has also made certain policy choices in the Act which are relevant to this matter. One policy choice is that the will of the majority should prevail over that of the minority. This is good for orderly collective bargaining as well as for the democratization of the workplace and sectors. A situation where the minority dictates to the majority is, quite obviously, untenable. But also a proliferation of trade unions in one workplace or in a sector should be discouraged. There are various provisions in the Act which support the legislative policy choice of majoritarianism”.’ [Footnotes omitted]

[45] Section 21(8C)(b), which empowers commissioners to grant organisational rights to unions that do not meet threshold agreements if they, inter alia, represent a “significant interest or a substantial number of employees” in the workplace, is subject to section 21(8), which sets, as quoted above, a number of other requirements for consideration.

[46] Section 21(8C) of the LRA introduced a new basis for the grant of organisational rights which departs from the traditional basis. This, because organisational rights are no longer limited only to those trade unions which meet the threshold for representativeness. There has, therefore, been a shift from the notion that only representative trade unions in the traditional sense can be granted organisational rights.

[47] The Coalition provided the definition of the words “significant” and “substantial”. The word “significant” is not defined in the LRA. Dictionaries define “significant” as “important or large enough to be noticed.” The word “substantial” is also not defined in the LRA. Dictionaries define “substantial” as “big, ample, considerable, large, significant or sizeable.”[7] The word “substantial” is equated with the word “significant”, which is in turn defined as “important or large enough to be noticed”.

[48] I agree with the Coalition that the requirements of section 21(8C)(b) are disjunctive and that the juxtaposition of these two concepts means that a trade union may represent a significant interest in the workplace even though it does not represent a substantial number of employees therein.

[49] It is common cause that AMCU and NUMSA are newcomers, with no organisational history in the workplace with a membership well below 10% in the workplace. Therefore, each future demand for organisational rights will have to be determined on its own merits. This, bearing in mind that NUM’s membership has been ever-increasing in the workplace.

[50] The Recognition Agreement defines the workplace as a single workplace for purposes of determining representivity[8] and the Commissioner's finding that collieries do not constitute a workplace is not only reasonable but is undoubtedly correct. In the same manner, as the Coalition is not permitted to establish representivity with reference to each independent colliery, so should the Applicant also not be allowed to rely on the administration of union fees by each independent colliery as a reason not to grant organisational rights.

Conclusion

[51] In Chamber of Mines, reference was made to National Union of Metalworkers of South Africa and others v Bader Bop (Pty) Ltd and another[9] (Bader Bop), and held that the Constitutional Court in Bader Bop interpreted the provisions of the LRA to protect the organisational rights of minority unions:[10]

‘The Court underscored the importance of freedom of association as it emerged from international instruments that were pertinent to interpreting the LRA. It noted that, although these instruments and the values they embody do not require trade union pluralism, in contradistinction to majoritarianism, a majoritarian system can operate fairly only in accordance with certain conditions. It must allow minority unions to co-exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions.’

[52] The highest court had also held that a majoritarian system can be fair only if it allows minority unions to co-exist, to organise, to represent its members and to seek to challenge majority unions. The LRA, though premised on majoritarianism, still affords minority unions the right to organise within the workforce. In this regard, rights enshrined under sections 12, 13 and 15 may be granted to a minority trade union even if the minority union does not meet the threshold set by an agreement with a majority union under section 18. This is if the commissioner decides that the minority union represents “a significant interest” or a “substantial” number of employees, provided that the commissioner entertains representation from the majority union.

[53] The decision reached by the Commissioner is, therefore, a reasonable one. I am of the view that the Coalition represents a significant interest of employees in the workplace and should be granted the organisational rights sought. Furthermore, their historical background with the Applicant cannot be ignored and must be juxtaposed with that of the newcomer unions.

[54] In the premises, the following order is made:

Order

1. The application to strike out the fifth respondent’s affidavit is dismissed.

2. The review application is dismissed.

3. There is no order as to costs.

Nindi AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr

Woodhouse

Instructed by: Mervyn

Taback Inc.

For the Third Respondent: Adv

R Grundlingh

Instructed by: Serfontein,

Viljoen & Swart Attorneys

For the Fourth Respondent: Adv R Grundlingh

Instructed by: Bester

& Rhoodie Attorneys

[1] Act 66 of 1995, as amended.

[2] (2016) 37 ILJ 2567 (LAC).

[3] [2007] 12 BLLR 1097 (CC) at para 110.

[4] (2015) 36 ILJ 1453 (LAC) at para 12.

[5] (2020) 41 ILJ 1918 (LAC) at para 28.

[6] (2017) 38 ILJ 831 (CC) at para 43.

[7] Oxford English Dictionary; Collins English Dictionary and Thesaurus. See also Municipal & Allied Trade Union of SA and Saldanha Bay Municipality and others (2018) 39 ILJ 1164 (CCMA).

[8] Record, p 175, clause 4.20, clause 6.

[9] [2002] ZACC 30; 2003 (3) SA 513 (CC).

[10] Chamber of Mines supra at para 52.