Association of Mineworkers and Construction Union (AMCU) and Others v Bafokeng Rasimone Management Services (Pty) Ltd and Others (J2578/15) [2016] ZALCJHB 549; (2017) 38 ILJ 931 (LC) (19 December 2016)

THE LABOUR COURT OF SOUTH AFRICA

JOHANNESBURG

Not reportable

case no: J 2578 /15

In the matter between:

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION (AMCU)

First Applicant

INDIVIDUALS WHOSE NAMES ARE LISTED IN

ANNEXURE “A”

Second to further Applicants

and

BAFOKENG RASIMONE MANAGEMENT

SERVICES (PTY) LTD

First Respondent

THE NATIONAL UNION OF MINEWORKERS

Second Respondent

UASA – THE UNION

Third Respondent

THE MINISTER OF LABOUR

Fourth Respondent

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT

Fifth Respondent

THE CHAMBER OF MINES

Sixth Respondent

(AMICUS CURIAE)

Heard: 17 June 2016

Delivered: 19 December 2016

Summary: Whether the current interpretation and application of sections 189(1)(a) – (c) and 23(1)(d) of the Labour Relations Act infringe constitutional rights.

JUDGMENT

PRINSLOO,J

Introduction:

[1] The Applicants approached this Court for an order inter alia declaring sections 189(1)(a) – (c) of the Labour Relations Act[1] (LRA) unconstitutional insofar as they have the effect that where an employer consults with a trade union with which the employer is required to consult in terms of a collective agreement, that employer has no obligation to consult with any other trade union whose members are likely to be affected by the proposed dismissals. Construed in this manner, it violates rights set out in the Constitution and those are the rule of law (section 1), the right to equality (section 9(1)), dignity (section 10), freedom of association (section 18), fair labour practice (section 23), access to information (section 32) and access to courts (section 34).

[2] The Applicants seek that sections 189(a)-(c) be excised from the LRA, alternatively be reinterpreted in a manner that is consisted with the aforesaid Constitutional rights and that it be declared that where an employer consults with a trade union that employer is required to consult with in terms of a collective agreement, that employer must also consult with any other trade union whose members are likely to be affected by the proposed dismissals.

[3] In respect of section 23(1)(d) the Applicants seek an order declaring the said section unconstitutional insofar as it permits a collective agreement regulating the dismissal of employees based on operational requirements, concluded with a majority trade union, to bind employees who are not members of the registered trade union. Construed in this manner, it violates the following rights set out in the Constitution: rule of law (section 1), the right to equality (section 9(1)), dignity (section 10), freedom of association (section 18), fair labour practice (section 23), just administrative action (section 33) and access to courts (section 34).

[4] The Applicants seek that section 23(1)(d) be reinterpreted in a manner that is consistent with the aforesaid Constitutional rights and that it be declared that a collective agreement regulating the dismissal of employees based on operational requirements, concluded with a majority trade union, cannot be extended to bind employees who are not members of the trade union party to the agreement. Alternatively, that an exclusion be read into section 23(1)(d) precluding its application to collective agreement regulating the dismissal of employees based on operational requirements.

[5] The Applicants also seek the review and setting aside of the retrenchment agreement concluded between the First, Second and Third Respondents, and / or the extension thereof in terms of section 23(1)(d) of the LRA. Lastly the Applicants seek the dismissals of the Second and further Applicants to be declared of no force and affect and that they be reinstated retrospectively. If the dismissals are not declared to be of no force and effect, the Applicants seek to challenge the procedural fairness of their dismissal in terms of the provisions of section 189A(13).

[6] The latter part of the relief sought could only be granted if the constitutional challenges are successful. Should the constitutional challenge not succeed, the application has to fail in its entirety.

[7] The application is opposed.

Brief history:

[8] The background facts are straight forward and undisputed. The First Respondent (the mine) operates a platinum mine in the Rustenburg area and the Second to further Applicants (the employees) were previously employed by the mine in various positions.

[9] In 2014 the First Applicant (AMCU) commenced with the recruitment of members at the mine and as at 31 July 2015 the employees were members of AMCU. At that point a verification process was ongoing and in August 2015 it was confirmed that AMCU has 382 members. The mine did not extend organisational rights to AMCU and did not recognize it for bargaining purposes. Organisational rights were extended to the Second Respondent (NUM), who was also recognized for bargaining purposes. The Third Respondent (UASA) was historically recognised for bargaining purposes. It is undisputed that NUM had as its members the majority of employees at the mine.

[10] On 30 September 2015 when the employees arrived for work and attempted to clock in with their access cards at the turnstile gate, they were denied access and were advised to wait outside the gate for the human resources personnel to address them. They were subsequently transported to the mine’s protection services department, where they were instructed to form queues and were issued with notices of their retrenchment dated 18 September 2015. The notice informed the employees of their retrenchment with

effect from 31 October 2015.

[11] Neither AMCU nor the employees were issued with section 189(3) notices, nor were they consulted or invited to consult during the course of the retrenchment process and prior to the issuing of the aforesaid retrenchment notices.

[12] It is common cause that on 18 September 2015 the mine, NUM and UASA on behalf of their members, concluded a retrenchment agreement (the retrenchment agreement), and they agreed that NUM and UASA represent the majority of employees in the workplace, that the agreement is a collective agreement as contemplated in section 23 of the LRA, that the mine had the need to dismiss for operational reasons and that there was compliance with the provisions of section 189 and 189A of the LRA prior to the dismissal of the retrenched employees. The terms of the agreement were in full and final settlement of all obligations and any claims and it was extended in terms of the provisions of section 23(1)(d) to all retrenched employees who were listed in an annexure to the agreement.

[13] On 15 October 2015 AMCU referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (‘CCMA’), challenging the substantive and procedural fairness of the employees’ dismissal. The matter was set down for conciliation on 13 November 2015 and at the commencement of proceedings, the mine raised a jurisdictional point regarding the existence of the collective agreement which was binding on the Applicants.

[14] On 19 November 2015 the CCMA issued a jurisdictional ruling in which it was held that the CCMA lacks the requisite jurisdiction to conciliate the matter and it was dismissed.

[15] On 20 November 2015 AMCU filed an application in terms of section 189A(13) of the LRA, challenging the procedural fairness of the employees’ dismissal. The application was set down for hearing on 3 December 2015.

[16] The mine opposed the section 189A(13) application and contended that the employees’ dismissals were not unfair as the mine concluded a collective agreement with NUM and UASA as contemplated in section 189(1)(a) of the LRA, in terms of which it was agreed that the mine, NUM and UASA would consult in respect of dismissals for operational requirements (the consultation agreement).

[17] The agreement referred to as the ‘consultation agreement’ was concluded on 30 March 2015 as an addendum to the recognition agreement that was concluded on 9 March 2015 between the mine, NUM and UASA. In the consultation agreement it was specifically agreed that they would consult on matters of mutual interest, which includes dismissal for operational reasons as contemplated in sections 189 and 189A of the LRA. The parties consulted in accordance with the consultation agreement, which agreement excluded any requirement of consultation with AMCU in terms of section 189(1)(a) of the LRA.

[18] The mine concluded a retrenchment agreement with NUM and UASA, which was extended in terms of section 23(1)(d) of the LRA, to bind employees who were not members of NUM or UASA and which regulated the employees’ dismissal. This agreement contained a full and final settlement clause and provided for a waiver of all claims and rights of action and as it was binding on the employees, they had no recourse to challenge the fairness of their dismissal. The retrenchment agreement regulates inter alia selection criteria, severance pay and future re-employment.

[19] It became apparent to the Applicants that they would not be entitled to the relief they sought in view of the provisions of section 189(1)(a) of the LRA, as interpreted in the prevailing jurisprudence.

[20] On 3 December 2015 the Applicants withdrew the section 189A(13) application and the parties agreed to an order whereby inter alia the Applicants’ rights to challenge the constitutionality of the relevant provisions of the LRA were reserved. Pursuant to the agreement, the present application was filed.

The Applicants’ case

Section 189(1)(a) – (c) of the LRA:

[21] Section 189(1) of the LRA stipulates that when an employer contemplates dismissal for reasons based on operational requirements, the employer must consult any person the employer is required to consult in terms of a collective agreement. If there is no collective agreement that requires consultation, the employer must consult a workplace forum and any registered trade union whose members are likely to be affected by the proposed dismissals. If there is no workplace forum, the employer must consult any registered trade union whose members are likely to be affected and if there is no such trade union, the employees likely to be affected must be consulted.

[22] Sections 189(1)(a)-(c) have been interpreted to have the effect that where an employer consults with a trade union with which the employer is required to consult in terms of a collective agreement, that employer has no obligation to consult with any other trade union whose members are likely to be affected by the proposed dismissals.

[23] The Applicants accepted that on the aforesaid interpretation, the mine would have no obligation to consult with AMCU as there is a consultation agreement in place with NUM.

[24] The Applicants’ case is that this interpretation is unconstitutional as it violates important provisions, principles and individual rights. The rights so violated are set out in the Constitution[2] and are the rule of law (sec 1), the right to equality (sec 9(1)), dignity (sec 10), freedom of association (sec 18), fair labour

practice (sec 23), access to information (sec 32) and access to courts (sec 34).

[25] These rights are offended by the current interpretation of section 189 (1)(a)-(c) of the LRA in that it permits private parties to take away an employee’s individual right to be heard prior to dismissal. The dismissed employee has no recourse to assert that right in a court of law or any other forum and it undermines the principle of legality and the rule of law. Employees who are members of trade unions other than the trade union that is party to a collective agreement as provided for in section 189(1)(a) of the LRA, are deprived of the right to procedural fairness and the right to be heard. This infringes the right to fair labour practices and dignity.

[26] The Applicants’ case is further that the current interpretation results in unfair discrimination between employees based on their chosen trade union affiliation and deprive employees who elect to be affiliated to trade unions which are not party to a collective agreement in terms of section 189(1)(a) of the LRA, of their rights. Employees who belong to a trade union that is party to the collective agreement, are afforded a pre-dismissal opportunity to be heard, whilst employees belonging to unions not party to the collective agreement, are denied such opportunity to be heard.

[27] As a result, employees who are members of a trade union not party to a collective agreement in terms of section 189(1)(a), are prevented from challenging the procedural fairness of their retrenchment. The current interpretation of section 189(1)(a) permits employers and trade unions to exclude trade unions and employees not party to the collective agreement from the pre-dismissal process, to leave them oblivious regarding what took place in the process and deprive them of information as envisaged in section 189(3) of the LRA.

[28] The current interpretation offends the rights of the trade unions as well as the employees who belong to trade unions which are not party to a collective agreement as envisaged in section 189(1)(a) of the LRA. The rights so offended are the right to equality vis-à-vis the trade union(s) party to the collective agreement in terms of section 189(1), the right to fair labour practices, the right to access to information and dignity.

[29] The Applicants are seeking that sections 189(1)(a)-(c) be excised from the LRA, alternatively that it be reinterpreted in a manner that would not result in the aforesaid consequences.

Section 23(1)(d) of the LRA:

[30] Section 23(1)(d) of the LRA stipulates that a collective agreement binds employees who are not members of the registered trade union(s) party to the agreement if the employees are identified in the agreement, if it expressly binds the employees and if that trade union(s) has as members the majority of employees employed in the workplace.

[31] Section 23(1)(d) of the LRA has been interpreted to have the effect that a retrenchment agreement such as the one concluded by the mine, NUM and UASA, binds employees who are not members of the trade unions party to the agreement if the pre-requisites in section 23(1)(d) are met. It is a matter of legal principle that a retrenchment agreement can be extended to non-party employees in terms of the provisions of section 23(1)(d).

[32] The Applicants accept that on the current interpretation the retrenchment agreement is binding on AMCU’s members.

[33] The Applicants’ case however is that section 23(1)(d) of the LRA, as currently interpreted, is unconstitutional as it violates important provisions, principles and rights. The rights so violated are set out in the Constitution and are the rule of law (sec 1), the right to equality (sec 9(1)), dignity (sec 10), freedom of association (sec 18), fair labour practice (sec 23), just administrative action (sec 33) and access to courts (sec 34).

[34] These rights are offended by the current interpretation of section 23(1)(d) of the LRA in that it permits private parties to take away an employee’s individual rights pertaining to the procedural and substantive fairness of a dismissal and it prevents those rights from being enforced in a court of law. The rule of law, the principle of legality and the right of access to courts are thereby infringed.

[35] The Applicants’ case is further that the current interpretation allows trade unions having the majority of employees to divest employees, to whom retrenchment agreements are extended to bind, of their rights and claims in respect of fair labour practices, just administrative action and access to courts. The majority is allowed to impose their will on the employees to whom such collective agreement is extended and this results in unfair discrimination between employees based on their chosen trade union affiliation.

[36] The employer and majority trade unions are allowed to perform the administrative act of extending contractual provisions to third parties without providing such party or their representatives with a right of hearing prior to such extension. There is no provision for an exemption process or for any external actors to play an oversight role to ensure that the extension of the agreement occurs in a manner that is fair.

[37] The Applicants are seeking that the present application of section 23(1)(d) of the LRA be reconsidered and reinterpreted in a manner that would not result in the aforesaid consequences. Alternatively, an exclusion should be read into section 23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

[38] In summary the relief sought by the Applicants is that sections 189(1)(a)-(c) and 23(1)(d) should be reinterpreted in the manner contended for by the Applicants. If the Court finds that it is not reasonably capable of being interpreted in the manner contended for by the Applicants, the impugned provisions should be declared unconstitutional. The Applicants submitted that the limitation of the rights concerned are not justifiable in terms of section 36 of the Constitution.

The opposition

The mine

[39] The mine’s case is that sections 189(1)(a)-(c) and 23(1)(d) of the LRA do not violate the rule of law or the rights as alleged by the Applicants. Insofar as sections 189(1)(a)-(c) and 23(1)(d) may constitute a limitation of rights, such limitation is justified.

[40] In essence the Applicants’ challenge to the constitutionality of section 23(1)(d) of the LRA is a challenge to the principle of majoritarianism. Such challenge should not succeed as the principle of majoritarianism is a policy choice endorsed by the legislature and entrenched in the LRA. The Constitutional Court has endorsed the principle and any limitations which the principle of majoritarianism may impose on the Applicants’ constitutional rights, are justifiable.

[41] The section 23(1)(d) challenge is also a challenge to the right to extend collective agreements to employees who are not members of the majority trade union(s) party to a collective agreement. Such challenge should not succeed as the principle that allows for the extension of collective agreements to non-parties as a mechanism to promote collective bargaining is a constitutionally permissible policy choice endorsed by the legislature and compatible with international labour standards.

[42] The challenge to the constitutionality of section 189(1)(a)-(c) is a challenge to the collective nature of the consultation procedures contained in these sections. The challenge should not succeed as retrenchment is a collective dismissal and related procedural rights are appropriately and adequately entrenched at a collective level and the right to a fair procedure is realised through representative structures. The mine’s case is that consultation through representative structures realises an individual employee’s right to a fair procedure, and is compatible with international labour standards. The intention of collective representative structures is to promote orderly collective bargaining in the workplace. To require of an employer to consult with

individual employees or a minority trade union where there is a majority trade union as exclusive bargaining agent, will undermine

orderly collective bargaining and workplace representation structures and would also undermine the sanctity of collective agreements

entered into with the majority unions.

[43] The mine denied that any of the fundamental rights as alleged by the Applicants were violated or that rights were taken away. Insofar as rights may be limited, the limitation is justifiable as the application of the principle of majoritarianism has limited individual rights in favour of collective rights.

[44] The mine’s case is that the legal basis of the allegation that the principle of legality and the rule of law is undermined because private parties are permitted in terms of section 189(1)(a)-(c) to take away the right to be heard before dismissal, is confused. This is so because sections 189(1)(a)-(c) deal with the obligation to consult with representative structures on behalf of employees and not the right of employees to be consulted individually. An employee is entitled to a fair procedure before being dismissed and if the reason for dismissal is retrenchment, the fair procedure obliges the employer to consult with representative

structures in the workplace. As such the right to be heard is not taken away, but the right to be heard is through representative

structures and sections 189(1)(a)-(c) provide collective mechanisms for the exercise of the right to a fair procedure.

[45] The mine’s case is that there is no individual right to be consulted in a retrenchment process and the right to a fair procedure is the right of a consulting party to hold the employer to the requirements of sections 189 and 189A.

[46] The mine submitted that there are clear distinctions based on the nature of the reason for dismissal and the requirements for what constitutes a fair dismissal. In the event of misconduct, a disciplinary procedure is appropriate, counselling in the event of incapacity and consultation with representative structures in respect of collective operational requirement dismissals. These distinctions are not unfair or discriminatory.

[47] In respect of the effect that the employees have no recourse to assert the right to be heard in a court of law or independent tribunal, the mine’s case is that the Applicants assume that there is an underlying individual right to be heard, which assumption is mistaken.

[48] On the issue of discrimination on the grounds of union affiliation, the mine’s case is that sections 189(1)(a)-(c) distinguish between representative structures to ensure that the most representative structures in the workplace are consulted and not undermined. This does not constitute discrimination.

NUM

[49] NUM opposed the application and filed an answering affidavit wherein it stated nothing more but that the deponent has read the First Respondent’s answering affidavit and that NUM agrees with the mine’s legal submissions and will rely on the submissions and allegations made by the mine in its answering affidavit.

[50] It is regrettable that NUM did nothing more but to simply piggy back on the First Respondent.

[51] The written legal arguments that Mr Maimane on behalf of NUM presented were no more than four pages in its heads of argument. NUM’s case is that the employees were members of NUM or UASA during the consultation process and when the retrenchment agreement was concluded, therefore the factual basis on which the constitutional challenge is premised, does not exist and the issues the Applicants want this Court to decide, are entirely academic. Furthermore, the dispute turns on the interpretation of the recognition agreement and its addendum, which are collective agreements and this Court does not have jurisdiction to decide that.

[52] There is no merit in these submissions as it was common cause between the parties that there was indeed and at least one employee who was a member of AMCU at all relevant times and at the time of his retrenchment.

[53] The legal submissions made by NUM lack depth and insight into the issues before Court and failed to deal with pertinent questions and policy issues. NUM’s submissions were not helpful at all.

[54] In argument before Court, Mr van der Riet SC submitted that AMCU’s application is opportunistic as they have entered into similar agreements with other employers.

[55] Mr van der Riet SC submitted that sections 23 and 189 of the LRA do not infringe the rule of law. He further submitted that AMCU is mistaken in its approach to section 189 of the LRA and misconstrues that nature of consultation in a retrenchment process. Retrenchment affect all employees and the most meaningful exercise to consult, is to consult with representatives and there can be no room for individual rights to be heard and consulted.

[56] If there is a collective agreement, the parties to the collective agreement can, in terms of the provisions of section 189(1)(a), consult on behalf of all employees.

[57] In respect of section 23(1)(d) Mr van der Riet submitted that there is no distinction between collective agreements and none should be drawn, as the Applicants seek to do.

[58] If there is indeed a limitation of rights, it is justified.

[59] Every employee has the right not to be unfairly dismissed and if a consultation process results in a binding collective agreement, there can be no question of unfairness.

[60] The LRA sanctions retrenchment as a valid reason for dismissal, and although retrenchment is harsh, it does not mean that it is unfair or unconstitutional when it is done in accordance with the provisions of the LRA.

UASA – The Union

[61] UASA filed a notice that it would abide by the Court’s decision and it made no submissions.

The Minister of Labour

[62] The Minister of Labour (the Minister) is opposing the challenge to the constitutionality of sections 189(1)(a)-(c) of the LRA and submitted that the Applicants’ challenge failed to consider the primary objects of the LRA and more particularly within the context of collective bargaining.

[63] The Minister’s case is that the Constitution, the LRA as well as international law does not envisage the consultation of every employee or trade union within the context of collective labour law and the fact that AMCU and the employees were not consulted, does not mean that they were not equally treated.

[64] The Minister denied that the right to freedom of association had been violated as the employees were free to exercise a choice whether to join AMCU, NUM or UASA. The freedom of association is distinguished from the right to bargain. The right to bargain is earned by representivity, which is pivotal in orderly collective bargaining and labour peace. If a trade union does not meet the required threshold to be entitled to be a party to a collective agreement, such does not constitute unfair discrimination.

[65] The Minister’s case is further that a dismissal envisaged in section 189 of the LRA differs from a dismissal based on incapacity and misconduct and the right to be heard prior to dismissal does not have to occur on an individual basis, hence the collective consultation process. Retrenchment is an instance where the bearer of rights would not be able to exercise those rights individually but where those rights will be exercised by a recognised collective structure. The section 189 consultation process is not akin to a hearing as required in misconduct or incapacity cases.

[66] In respect of section 23(1)(d) the Minister denied that this section is unconstitutional as collective agreements are only extended to non-parties where specific requirements have been complied with and the parties to such agreement are determined by the level of representivity.

[67] In summary the Minister’s case is that the impugned provisions are not reasonably capable of being interpreted in the manner contended for by the Applicants and that those provisions are not unconstitutional.

[68] In the event that this Court finds that the Applicants’ rights have been infringed, the limitation of those rights are justified.

Amicus curiae

[69] Mr Myburg SC filed submissions on behalf of the amicus curiae, which submissions were indeed of assistance to this Court and where appropriate, will be highlighted.

[70] Before I deal with the merits of this application, I deem it prudent to consider the history of the context of sections 23(1)(d) and 189(1)(a)-(c) of the LRA as well as the international position.

Legislative history

[71] Before addressing the constitutionality of section 189(1)(a)-(c) and section 23(1)(d) of the LRA, the history of these sections calls for closer inspection.

[72] The draft Labour Relations Bill[3] formed the subject of extensive negotiations at NEDLAC before the LRA was passed into law and before it came into operation in 1996, the Constitutional Court certified the LRA as constitutionally compliant[4].

[73] Clause 21 of the draft Bill was the precursor to section 23 and it did not provide for the extension of collective agreements to non-parties. Section 23(1)(d), not having been provided for in the draft Bill, owes its existence to the NEDLAC negotiation process and the subsequent parliamentary process.

[74] Clause 81(2) of the draft Bill was the precursor to section 189(1) of the LRA. Clause 81(1) did not provide that an employer should consult with the party it is required to consult in terms of a collective agreement, as section 189(1)(a) of the LRA provides. Clause 81(2) instead provided that, in the absence of a workplace forum, the employer should consult with any representative trade union (majority union) and any other registered union whose members are likely to be affected by the proposed dismissal. The draft Bill specifically provided consultation rights for trade unions and employee representatives where the termination was for operational requirements. As section 23(1)(d), section 189(1)(a) of the LRA also owes its existence to the NEDLAC negotiation process and the subsequent parliamentary process.

[75] The 2002 amendments to the LRA introduced section 189(1)(b)(ii) and the word ‘or’ between section 189(1)(c) and (d). Also introduced was section 189A, applicable to large scale retrenchments and affording employees the right to strike over dismissals based upon operational requirements. In Aviation Union of Southern Africa and others v SA Airways SOC Ltd and others[5] this Court has held that given the fact that consultations over large scale retrenchments may culminate in strike action, consultations

overlap with the process of collective bargaining.

[76] The LRA is the product of a negotiated process.

International law

[77] The ILO Termination of Employment Convention 158 of 1982 (Convention 158) provides in article 1 that the provisions of this Convention shall be given effect by laws or regulations insofar as they are not otherwise made effective by means of collective agreement, arbitration awards or court decisions or in such other manner as may be consistent with national practice.

[78] Article 13 of Convention 158 provides that an employer should consult with the ‘workers’ representatives concerned’ and such term is described to mean ’the workers’ representatives recognised as such by national law or practice, in conformity with the Workers’ Representatives Convention, 1971.”

[79] The ILO Workers’ Representatives Convention 135 of 1971 defines the term ‘workers’ representatives’ to mean “persons who are recognised as such under national law or practice.”

[80] The European Community Directive on Collective Redundancies (the Directive) provides for consultations over collective redundancies with the ‘workers’ representatives’, which is also defined as representatives provided for by the laws or practices of the member states.

[81] ILO Conventions 158 and 135 as well as the Directive do not prescribe that all unions should be consulted but rather leave it to the member states to legislate who the consulting parties should be.

[82] Section 189(1)(a)-(d), in keeping with the ILO Conventions, identifies the parties an employer should consult with as any person whom the employer is required to consult in terms of a collective agreement. If there is no collective agreement, a workplace forum and any registered trade union whose members are likely to be affected should be consulted and if there is no workplace forum, any registered trade union whose members are likely to be affected. If there is no such trade union, the employer has to consult the employees likely to be affected or their nominated representatives.

[83] It is evident from the structure of section 189(1) that there is a hierarchy where the identity of the consulting parties would in the first instance be determined by collective bargaining. If there is a collective agreement that requires consultation with a specified party, as per the agreement, it displaces all others with competing claims to consult.

[84] The Labour Appeal Court (LAC) recently found[6] that the principle of extending collective agreements to minorities of non-member workers in the workplace, is not contrary to

international law.

Judicial authority

[85] When evaluating the constitutionality of legislation, courts must be conscious of the vital limits on judicial authority and the

Constitution’s design to leave certain matters to other branches of government[7].

[86] The pre-eminent constraint is the doctrine of the separation of powers and courts must be careful not to usurp the legislative powers to determine the policy content of legislation. Although the courts are the ultimate guardians of the Constitution and have the power to intervene in order to prevent a violation thereof, courts have no power to supervise or interfere with the exercise of the functions of the executive or legislature.

[87] The policy content of legislation is not to be disturbed as long as it falls within the bounds of the Constitution. Wallis discussed the need for judicial constraint in law making, particularly the field of labour relations, in an academic article[8]:

‘The complex balancing exercise to achieve fairness for both employers and workers embodied in the LRA was not accidental. It was preceded not only by expert input in the original drafting process, but by hard bargaining among the social partners, to arrive at a result that can only be described as a compromise. Where the results of that compromise are clear I suggest that it is inappropriate for courts to disturb the balance by exercises in creative judicial law making….’

[88] Wallis relied on the often quoted passage of the Canadian case of Alberta Reference[9]:

’I believe the current system of collective bargaining regulating relations between workers and employers is too complicated and

sophisticated a field to be put under the scrutiny of a judge in a contest between two litigants arguing vague notions such as

‘reasonable’ and ‘justifiable in a free and democratic society’. I have no confidence that our adversary

court system is capable of arriving at a proper balance between the competing political, democratic and economic interests that are the stuff of labour legislation. When we consider that collective bargaining law is polycentric in nature, adjustments to the delicate industrial relations balance in one part of the system might have unanticipated and unfortunate effects in another. The lessons of the evolution of our labour regime in the past 50 years displays very clearly that the legislatures are far better equipped than the courts to strike the appropriate balance between the interests if the individual employee, the union, the employer and the public.’

[89] This Court is not unconstrained in evaluating the constitutionality of sections 23(1)(d) and 189(1) of the LRA. This matter must be decided with due observation of the limits of the Court’s powers and the principle of separation of powers.

[90] Further it must be decided within the purpose and framework of the LRA. In NUMSA and others v Bader Bop and others[10] the Constitutional Court held that the first purpose of the LRA is to give effect to constitutional rights. Secondly, it is intended to give legislative effect to international treaty obligations arising from the ratification of International Labour Organization (ILO) conventions. South Africa's international obligations are thus of great importance to the interpretation of the LRA. Thirdly, to provide a framework whereby both employers and employees and their organizations can participate in collective bargaining and the formulation of industrial policy. Finally, the LRA seeks to promote orderly collective bargaining with an emphasis on bargaining at sectoral level, employee participation in decisions in the workplace and the effective resolution of labour disputes.

[91] Section 39(1) of the Constitution provides that when the Bill of Rights is interpreted, a court must consider the international law. Section 233 of the Constitution provides for the application of international law and prescribes that when interpreting legislation,

a court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative

interpretation that is inconsistent with international law.

[92] When faced with an interpretation issue, the Court in Bader Bop said:

'The first question that arises is whether the Act is capable of being interpreted in the manner contended for by the applicants, or whether it is only capable of being read as the respondents and the majority judgment in the LAC suggest. If it is capable of a broader interpretation that does not limit fundamental rights, that interpretation should be preferred. This is not to say that where the legislature intends legislation to limit rights, and where that legislation does so clearly but justifiably, such an interpretation should not be preferred in order to give effect to the clear intention of the democratic will of parliament. If that were to be done, however, we would have to be persuaded by careful and thorough argument that such an interpretation was indeed the proper interpretation and that any limitation caused was justifiable as contemplated by s 36 of the Constitution.'

[93] In Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others: In re: Hyundai Motor Distributors (Pty) Ltd and others v Smit FNO and others[11] the Chief Justice ruled against the readily attractive approach to declare legislation unconstitutional when the starting point is to read it in conformity with the Constitution as read with the object of the relevant legislation. It was held that:

‘It follows that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. Only if this is not possible should one resort to the remedy of reading in or notional severance…’

[94] Section 3 of the LRA provides that the provisions of the LRA should be interpreted to give effect to its primary objects, in compliance with the Constitution and in compliance with the public international law obligations of the Republic.

[95] In casu the Applicants will have to show essentially that the legislative adoption and implementation of the principle of majoritarianism in the LRA, fall outside the range of constitutionally permissible legislative options available to the legislature.

[96] I am mindful of the fact that the scope of the Applicants’ challenge is limited.

Analysis

Section 23(1)(d) of the LRA

[97] I will first deal with the challenge in respect of section 23(1)(d) of the LRA.

[98] The Applicants accept that on the current interpretation the retrenchment agreement is binding on AMCU’s members.

[99] The Applicants’ case however is that section 23(1)(d) of the LRA, as currently interpreted, is unconstitutional as it violates important provisions, principles and certain constitutional rights already alluded to.

[100] These rights are offended by the current interpretation of section 23(1)(d) of the LRA in that it permits private parties to take away an employee’s individual rights pertaining to the procedural and substantive fairness of a dismissal and it prevents those rights from being enforced in a court of law. The rule of law, the principle of legality and the right of access to courts are thereby infringed.

[101] The Applicants’ case is further that the current interpretation allows trade unions having the majority of employees to divest employees, to whom retrenchment agreements are extended to bind, of their rights and claims in respect of fair labour practices, just administrative action and access to courts. The majority is allowed to impose their will on the employees to whom such collective agreement is extended and this results in unfair discrimination between employees based on their chosen trade union affiliation.

[102] The Applicants are seeking that the present application of section 23(1)(d) of the LRA be reconsidered and reinterpreted in a manner that would not result in the aforesaid consequences. Alternatively, an exclusion should be read into section 23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

[103] AMCU acknowledged that section 23 of the LRA recognises the fundamental right to collectively bargain and that section 23(1)(d) gives effect to the principle of majoritarianism by allowing collective agreements concluded with majority trade unions in the collective bargaining context to be extended to apply to employees who are not members of the trade unions party to the agreement.

[104] The opposition to the constitutionality challenge is premised on the principle of majoritarianism and the contention that any infringement

of the Applicants’ constitutional rights, is justifiable. The Respondents rely on the LAC judgment in Association of Mineworkers and Construction Union and others v Chamber of Mines of SA acting in its own name and on behalf of Harmony Gold Mining Co (Pty) Ltd and others (AMCU v COM)[12] where the LAC has held that section 23(1)(d) is a manifestation of the principle of majoritarianism and that:

‘Section 23(1)(d) of the LRA is but one instance in the LRA where the legislature had chosen to apply the principle of majoritarianism. There is nothing unconstitutional about the principle itself. It is a useful and essential principle applied in all modern democracies, including the Republic of South Africa. It has been recognised as an essential and reasonable policy choice for the achievement of orderly collective bargaining and for democratisation of the workplace and the different sectors’.

[105] In AMCU v COM the challenge was that section 23(1)(d) read with section 65 and the definition of ‘workplace’ in section 213 of the LRA was unconstitutional for violating specific constitutional rights to the extent that the said section of the LRA granted private employers and trade unions the power to bind, by way of an extended collective agreement between them, other employees and trade unions who were not party to the agreement and effectively preventing them from, inter alia, bargaining collectively and striking concerning matter of mutual interest.

[106] In casu AMCU takes issue with section 23(1)(d) of the LRA insofar as it permits a collective agreement regulating the dismissal of employees based on operational requirements, concluded with a majority trade union, to bind employees who are not members of the trade union(s) party to the agreement, without any prior due process and without any subsequent access to court or arbitration to challenge the fairness of their dismissals.

[107] AMCU’s challenge in casu is narrowly framed, not being a challenge to the constitutionality of section 23(1)(d) per se, but it is a challenge to its application to collective agreements concluded with a majority trade union which regulate the dismissal and dismissal claims of employees based on operational requirements, and extended to bind employees who are not members of the trade union(s) party to the agreement.

[108] Mr Boda SC with Mr Itzkin argued that the reliance on majoritarianism and orderly collective bargaining is misplaced as the application thereof to retrenchment is not consistent with the rule of law and the principle of legality.

[109] This argument is supported by the definition of a collective agreement as it appears in section 213 of the LRA where a collective agreement is defined as a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions on the one hand and, on the other hand one or more employer or registered employers’ organisation(s).

[110] Section 23 recognises the fundamental right to bargain collectively and AMCU’s case is that the Retrenchment Agreement that was concluded in casu, was not conceived in the collective bargaining context in which majoritarianism is central. Instead it was conceived from section 189 consultations, which are not in the nature of negotiations and collective bargaining at all.

[111] AMCU argued that the LAC’s findings in AMCU v COM that majoritarianism is an essential and reasonable policy choice for the achievement of orderly collective bargaining, find application in the context of collective bargaining and not retrenchment. In AMCU v COM the right that was impacted, was the right to engage in collective bargaining and the right to strike and for these reasons AMCU seeks to distinguish the said judgment from the constitutional attack in casu.

[112] It is AMCU’s case that the principles of majoritarianism and orderly collective bargaining cannot be transplanted to the retrenchment context and their application in that context is inappropriate and misplaced.

[113] Mr Myburg SC submitted that this argument is misconceived. He argued that a retrenchment consultation process does not involve collective bargaining but when the process leads to a collective agreement, the forces of collective bargaining come into play. One of the major forces of collective bargaining is majoritarianism.

[114] Mr Malindi SC with Mr Nhlapo on behalf of the Minister also took issue with the Applicants’ argument and submitted that the Applicants were incorrect to say that there is no collective bargaining involved when an employer contemplates retrenching employees. Indeed individual rights are concerned but those rights are negotiated within a collective space. In a retrenchment process a collective of employees are involved and the topics concerned constitute matters of mutual interest and negotiations occur within a collective environment. The eventual result of the negotiation process might be a collective agreement.

[115] Mr Malindi SC submitted that although collective bargaining in the process of retrenchment does not occur within the context of the bargaining unit envisaged within the context of collective bargaining, it is not correct to say that collective bargaining is not involved in the process of retrenchment. The principle of majoritarianism that applies to collective bargaining can therefore not be ignored.

[116] Mr Pretorius SC with Mr van As for the mine submitted that the essence of the Applicants’ attack on section 23(1)(d) is an attack on the principle of majoritarianism.

[117] They submitted that the model of majoritarianism advanced by section 23(1)(d) and several other sections of the LRA embodies a legislative policy choice that is permitted by the Constitution, the LRA and international law. The courts have approved the legitimacy of the policy choice and the Applicants provided no compelling reason why this Court should revoke the approval already given by the Courts and why there should be deviation from the findings of the LAC in AMCU v COM.

[118] In AMCU v COM the LAC has considered the application of section 23(1)(d) and found that the principle of extending collective agreements to minorities or non-member workers in the workplace is not contrary to international law and such extension is rational and reasonable. The LAC held that:

‘It would be impractical if minority workers were not bound to collective agreements concluded at workplace level between the employer(s) and trade unions who represented the majority of the employees, simply because they were not parties to that collective agreement.

Furthermore, to require unanimity amongst all employees, despite different trade union membership or affiliation would be unrealistic.

To prohibit extension of the collective agreement to the minority employees, who were not parties to the collective agreement, so that H they are not bound by it, would not only undermine the enforcement and therefore the effectiveness of the collective agreement, but also be destructive of collective bargaining per se, to peace in the workplace and to the achievement of fair labour practices. Such consequences are clearly not in conformity with the LRA and the Constitution’.

[119] In my view the distinction AMCU seeks to draw between this application and AMCU v COM where the LAC held that majoritarianism is an essential and reasonable policy choice for the achievement of orderly collective bargaining, is flawed for a number of reasons. AMCU’s case is that majoritarianism finds application in the context of collective bargaining and not retrenchment.

[120] Firstly, it is flawed because the primary consideration is the collective nature of the process. Retrenchment is indeed a collective process and this is supported by the provisions of section 189 of the LRA where the legislature explicitly selected a hierarchical structure for retrenchment consultations and the primary one is through a collective agreement, which can only be the result of collective bargaining. Even if I am wrong to find that retrenchment is a collective process, where a collective agreement is concluded to regulate the retrenchment of employees, the forces of collective bargaining come into play and the principle of majoritarianism cannot be ignored.

[121] Secondly, the fact that the LAC in AMCU v COM dealt with the extension of a wage agreement and not a retrenchment agreement, does not detract from the principle and there is no basis to read an exclusion into section 23(1)(d) precluding its application to collective agreements that regulate dismissals based on operational requirements.

[122] For reasons I will deal with fully infra, there is no merit in the Applicants’ case insofar as they seek the reconsideration and reinterpretation of section 23(1)(d) that would not result in trade unions having the majority of employees to divest employees, to whom retrenchment agreements are extended to bind, of certain rights. There is also no basis to grant the alternative relief by reading an exclusion into section 23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

[123] The ILO supervisory bodies have recognised that pre-dismissal rights, restructuring processes and dismissals are matters for collective bargaining and it follows that the extension of any collective agreement dealing with these issues is unobjectionable on the ILO instruments relied on by the LAC in AMCU v COM.

[124] In AUSA and others v SAA SOC Ltd and others[13] this Court has considered the question whether, as a matter of legal principle, a retrenchment agreement can validly be extended to non-party employees in terms of s 23(1)(d).

[125] In considering the question, the Court referred to two judgments where this question was answered in the affirmative. The first is Tsetsana v Blyvooruitzicht Gold Mining Co Ltd[14], where it was held that:

'The applicant's contention that he is not bound by the terms of agreements concluded by a trade union of which he is not a member, is without substance or foundation. The retrenchment agreement of August 1997 is unquestionably a collective agreement which binds, inter alia, employees who, although not members of a registered trade union which is a party to it, are employed in the workplace to which it applies and in which that trade union enjoys majority representation of the employees there employed.'

[126] The second is Sigwali and others v Libanon (A Division of Kloof Gold Mine Ltd)[15] where it was held:

'In casu, it is common cause that NUM represented the majority of the employees in respondent's business. It is not disputed that the agreement identifies the employees affected by it with sufficient particularity. Even if it was disputed, it is my view that the agreement clearly identifies the employees as set out in s 23(1)(d)(i). Consequently in my view the agreement concluded between the NUM and respondent binds not only those employees who are members of the NUM but also non-members as contemplated above.'

[127] In AUSA v SAA the Court held that while it may appear objectionable that section 23(1)(d) can be used in this way, so as to deprive individuals (and thus their unions) of the right to challenge the fairness of a retrenchment process, the section permits all collective agreements to be extended in terms thereof and is not limited in its scope to only agreements that do not involve a deprivation of rights. Indeed, most collective agreements extended in terms of s 23(1)(d) involve depriving non-party employees of some or other right.

[128] AMCU submitted that neither Tsetsana nor AUSA dealt with a constitutional challenge to the application of section 23(1)(d) in relation to retrenchment agreements precluding unfair

retrenchment claims which are extended to apply to employees who are not members of the trade union parties thereto. Even though the said cases did not deal with a constitutional challenge, I am of the view that the principles set out in those cases are applicable. Insofar as AMCU’s case is that the current interpretation encroaches on other constitutional rights, I will deal with those other rights infra.

[129] The fact is that what AMCU challenges as unconstitutional, is indeed permissible and is underscored by section 189(1)(a) of the LRA, which has been interpreted as meaning that an employer and a majority union can enter into a collective agreement upfront to the effect that, in the case of a retrenchment exercise, the employer will only consult with the majority union. Where it then does so, any retrenchment agreement concluded with the majority union will then bind non-union and minority union members. The LAC put this as follows in Aunde SA (Pty) Ltd and others v National Union of Metalworkers of SA[16]:

'Where an employer consults in terms of agreed procedures with the recognised representative trade union in terms of a collective

agreement which requires the employer to consult with it over retrenchment, such an employer has no obligation in law to consult

with any other union or any individual employee over the retrenchment. If such a consultation exercise has culminated in a collective agreement that complies with the requirements of a valid collective agreement, all employees including those who are not members of the representative trade union that consulted with the employer are bound by the terms of such collective agreement irrespective of whether they were party to the consultation process or not.'

[130] The conclusion of a retrenchment agreement further to a process of consultation and its extension in terms of s 23(1)(d) has the same effect and is unobjectionable. Sections 189 and 189A constitute a legislative process designed to get the parties to attempt to reach consensus, which will, if successful, typically result in the conclusion of a collective agreement. Such a collective agreement, like all collective agreements is then capable of being extended in terms of s 23(1)(d) (if the requirements are met).

[131] As a matter of legal principle, a retrenchment agreement can be extended to non-party employees in terms of s 23(1)(d) and as I already alluded to, I can see no reason to read an exclusion into section 23(1)(d) precluding its application to collective agreements regulating the dismissal of employees based on operational requirements.

[132] Mr Pretorius SC submitted that the principles of our law in relation to collective agreements should be consistently applied and

interpreted. It is well established and settled in our law that minority unions may be bound by collective agreements entered into

with majority unions on matters of mutual interest and minority unions need not be consulted in those instances. This is so despite

the fact that the subject matter of the collective agreements affects individual employees and their unions.

[133] In my view there is merit in this submission and it matters not what the subject matter of the collective agreement is. If a collective agreement had been concluded, the effect and consequences should be the same, irrespective of the subject matter of the agreement and it would be inappropriate to treat some matters of mutual interest different from others.

[134] Mr Malindi SC highlighted the difficulty in the Applicants’ approach namely that it does not take into account the employees who are not unionised in its articulation of the unconstitutionality of both sections 23(1)(d) and 189(1)(a)-(c) of the LRA. He submitted that the position of employees who are not unionised will present a disorderly consultation process insofar as any contemplated retrenchment is concerned. A scenario where non-unionised employees or unions not party to a collective agreement regulating retrenchment must be consulted in the event of an anticipated retrenchment, will undermine the very purpose of the LRA and would cause the scheme and framework of the LRA to crumble.

[135] After arguments in this matter were presented, the Applicants filed further submissions wherein they brought to this Court’s attention the Constitutional Court judgment of Transport and Allied Workers Union of South Africa v PUTCO Limited[17] (TAWUSA) wherein the Constitutional Court made pertinent findings regarding the application and reach of the principle of majoritarianism.

[136] The Applicants rely on the findings of the Constitutional Court to support their case that majoritarianism cannot justify the exclusion of the minority from such consultations as the principle finds application only after a collective agreement has been concluded. In TAWUSA the Court found that majoritarianism was not applicable and found no application in the interpretation of sections 213 and 64(1) of the LRA. The Applicants submitted that for these reasons majoritarianism does not find application in relation to the extension of the retrenchment agreement between the mine, NUM and UASA to bind the employees and cannot justify the limitation of their rights.

[137] The mine filed a reply to the further argument presented by the Applicants and Mr Pretorius SC with Mr van As submitted that in TAWUSA the Constitutional Court applied the definition of a lock out as contemplated in section 213 of the LRA to the facts and it did not consider sections 189, 189A or 23 of the LRA.

[138] Mr Pretorius SC submitted that no recourse may properly be had to the TAWUSA judgment as it applies to an entirely different set of facts and provisions of the LRA and cannot determine the outcome of this matter. The comment the Constitutional Court made that the principle of majoritarianism finds application after a collective agreement has been concluded, must be confined to the facts of the TAWUSA matter and do not constitute a critique of the provisions of sections 23 or 189 of the LRA.

[139] Mr Malindi SC with Mr Nhlapo have in their heads of arguments referred to the TAWUSA case and they placed reliance on paragraph 19 of the judgment where the Constitutional Court has held that:

‘It is worth emphasising that the principle finds application after a collective agreement has been concluded: this much is evident from the provisions of s 32. A collective agreement is extended only at the behest of the majority after the collective agreement process has run its course’.

[140] Mr Malindi submitted that the same principle applies to collective agreements extended in terms of section 23(1)(d) of the LRA.

[141] In my view the TAWUSA judgment is of no assistance to the Applicants. It indeed applied to a completely different set of facts and provisions of the LRA and can on that basis alone be distinguished from the matter this Court has to decide. Furthermore, in TAWUSA the Court found that the principle of majoritarianism did not apply to strikes and lock-outs under section 213 and 64(1) of the LRA to extend a dispute within a bargaining council to a party that is not a member of that council. In the same judgment the Constitutional Court however held that:

‘In essence, the principle of majoritarianism states that the will of the majority prevails over that of the minority. This is reflected

throughout the LRA. In Kem Lin Fashions, Zondo JP underscored that majoritarianism was the consequence of a conscious policy choice made by the legislature when formulating the LRA’.

Section 189(1)(a) – (d)

[142] The Applicants’ case is that every employee has the right not to be unfairly dismissed and to achieve that and to give effect to the Constitutional right to fair labour practices, an inclusive consultation process is required wherein employees, whose employment security, livelihoods and dignity are at risk, can participate, where appropriate, through a representative body such as a trade union of which they are members.

[143] It is common cause that AMCU and the employees were wholly excluded from the consultation process that led to the employees’

dismissal and only became aware when they were retrenched on 30 September 2015 when they reported for duty. The Applicants were not afforded a pre-dismissal opportunity to be heard and they were precluded from contributing to the consultation process. Mr Boda SC submitted that this is not in keeping with the right to fair labour practices, which includes the right not to be unfairly dismissed and is an affront to their dignity and other constitutional rights.

[144] AMCU’s case is that the mine’s course of action discriminated unfairly between employees based on their chosen trade

union affiliation and disenfranchised the employees who elected to be associated with AMCU, without doing so in relation to members of NUMSA or UASA.

[145] AMCU submitted that the LRA does not permit employees who face possible dismissal for alleged misconduct or incapacity to be excluded from the pre-dismissal process, irrespective of their trade union affiliation. Employees who face possible retrenchment are thus

unfairly discriminated against vis-à-vis employees who face possible dismissal for alleged misconduct or incapacity.

[146] AMCU places reliance on ILO Conventions 158 and 135 to support the contention that the said conventions envisage an inclusive process with affected workers enjoying representation in the pre-retrenchment process and submitted that this imperative is undermined where certain workers’ representatives are not given an opportunity to consult. The effect is that sections 189(1)(a) to (c) as currently interpreted, infringe the rights to fair labour practices, dignity and equality.

[147] AMCU submitted that as to the contention that majoritarianism and orderly collective bargaining are justifications for the Applicants’ exclusion from the scope of consultation, this misconstrues the nature of the process envisaged in section 189 of the LRA and its underlying purpose. AMCU seeks to differentiate between the concepts of consultation and negotiation. Consultation is a central feature of the legislated and peremptory pre-retrenchment process, whilst negotiation is a voluntary endeavour in the context of collective bargaining. Collective bargaining is not central in the section 189 consultation process.

[148] AMCU stated that it does not have difficulty with the principle of majoritarianism and its constitutionality per se, its application in the context of the right to procedural fairness in the retrenchment scenario is misplaced. By excluding minority trade unions from the consultation process, the following constitutional rights are limited: right to equality, right to dignity, right to freedom of association, right to fair labour practices, the right to access to information and the right to access to the courts.

[149] These rights are offended by the current interpretation of section 189 (1)(a)-(c) of the LRA in that it permits private parties to take away an employee’s individual right to be heard prior to dismissal.

[150] Mr Pretorius SC submitted that the Applicants’ argument that an employee’s individual right to be heard prior to dismissal had been taken away by the current interpretation of section 189(1)(a)-(c) of the LRA is flawed. This is so because the foundation of the Applicants’ submission is the individual employee’s right to be heard in a dismissal context, yet the Applicants are not seeking an individual hearing, but a collective hearing through AMCU. If the Applicants are correct that individual employees have a right to be heard in a retrenchment process, it would upset the whole scheme of section 189 and 189A of the LRA and would render the consultation process unworkable. The legislature has made a policy choice to which this Court should show deference.

[151] The mine’s argument is that there can be no objection, let alone a declaration of unconstitutionality, where the rights regarding consultation are afforded to a union that has secured that right by way of a collective agreement, whether on the basis of its majority or otherwise. There can be no infringement of any constitutional right where collective bargaining or consultation and the conclusion of a collective agreement takes place only with a union(s) that achieved that right through collective bargaining. If a minority union does not have the bargaining strength to secure such an agreement, it does not constitute an infringement of any constitutional right.

[152] Mr Malindi SC submitted that the Constitution, as given effect to by the LRA and in due consideration of the international law, does not envisage that within the context of collective labour law each employee and trade union will be consulted on matters of mutual interest. He submitted that the provisions of section 189(1)(a)-(c) are in line with the international standards as provided for in the ILO Conventions.

[153] Consistent with the plain language of section 189 and the hierarchy it established, it has been interpreted and applied to oblige the employer to consult in terms of only one of the subsections. If an employer consults a party in terms of a collective agreement, there is no obligation to consult another party in terms of the remaining subsections.

[154] The elevation to the status of ‘consulting party’ as contemplated in section 189(1)(a) of the LRA, is strictly speaking

not dependent on the principle of majoritarianism, but rather on such a party acquiring the status of ‘consulting party’ by way of a collective agreement.

[155] It is not envisaged in section 189 retrenchment procedures that the affected employees would be afforded a hearing as contemplated in a dismissal for misconduct or incapacity. The nature of the consultation process and the topics for consultation in a retrenchment process cannot be compared to a hearing as contemplated in cases involving misconduct or incapacity.

[156] In my view there is no basis to excise sections 189(1)(a)-(c) from the LRA, alternatively to reinterpret it and to declare that where an employer consults with a trade union that employer is required to consult within terms of a collective agreement, that employer must also consult with any other trade union whose members are likely to be affected by the proposed dismissals.

[157] To do so would not only disregard judgments this Court is bound to follow, but would also ignore and probably undermine conscious policy choices made by the legislature when formulating the LRA.

Infringement of constitutional rights

[158] The Applicants allege that a number of their constitutional rights have been violated by the current interpretation and application of sections 23(1)(d) and 189(1)(a)-(c) of the LRA.

[159] The Respondents deny that any constitutional rights were violated, but submitted that insofar as there might be an infringement or limitation of the employees’ constitutional rights, the limitation is reasonable and justifiable.

[160] Rights are not absolute. They may be infringed when there is a compelling good reason to do so and where the infringement is not

disproportionate to the benefits it obtains[18].

[161] I will deal with the specific rights the Applicants allege have been violated or infringed.

The Rule of Law

[162] The Applicants’ case is that the principle of legality and the rule of law are undermined where parties are permitted to take away an employee’s individual right to be heard before dismissal and when this happens, the employee has no recourse to assert that right in a court of law.

[163] In answer to this contention, the mine submitted that there is no individual right to be heard in a retrenchment consultation process, as the conduct or capacity of the individual employees is not relevant or assessed. Issues related to retrenchment are of a general nature (eg selection criteria or severance pay) and would apply across the board to all affected employees.

[164] The arrangement of the hierarchical structure provided for in section 189(1) is not irrational and it gives precedence to a union

with whom the employer has a duty to consult with in terms of a collective agreement. Nothing in the LRA precludes minority unions to conclude collective agreements as contemplated in section 189(1)(a) of the LRA and once such an agreement is concluded, such a party acquires the right to be consulted.

[165] Mr Malindi SC submitted that important principles that are foundational to the principle of legality, as given effect to by the right to fair labour practices enshrined in the Constitution and the provisions of the LRA, include the interests of effective and orderly collective bargaining as well as the speedy resolution of disputes. It is fair that some form of selection through recognition criteria whereby some are entitled to bargain or consult and others not is provided for in sections 23(1)(d) and 189(1)(a)-(c) of the LRA.

[166] I cannot find that the current interpretation and application of sections 23(1)(d) and 189(1)(a)-(c) of the LRA violate or undermine the Rule of Law. There are important policy considerations that played a vital role in the crafting of the said sections and those cannot be ignored and do not amount to a violation of the Rule of Law.

The right to fair labour practices

[167] The Applicants’ case is that every employee has the right to fair labour practices as provided for in section 23 of the Constitution and they are deprived of this right because section 23(1)(d) and 189(1)(a)-(c) of the LRA operate to deprive minority union members of the right to pre-dismissal consultations and the right to challenge the fairness of their dismissal.

[168] Mr Myburg SC submitted that a labour practice must concern a matter of mutual interest. The Constitutional Court has endorsed the right not be unfairly dismissed as essential to the right to fair labour practices.

[169] The right to fair labour practices is not an overarching right, but rather a distinct right.

[170] Mr Myburg SC submitted that the contention that minority union members are deprived of a right to pre-dismissal consultations is misconceived for a number of reasons. Firstly, minority union members are in effect represented during the consultation process by the majority union and the consequence of this is that they were indeed part of the process from the outset. NUM, for purpose of retrenchment consultations, represented not only its own members, but all employees affected by the retrenchment process.

[171] In Sikhosana and others v Sasol Synthetic Fuels[19] this Court described the position under section 189(1)(a) as being that the right to consultation secured by a majority union entitles it to speak on behalf of the company’s employees, whatever their union affiliation, in matters of retrenchment.

[172] Secondly, when it comes to retrenchment, employees do not have an individual right to fairness, but instead a collective right to consultation. The legislature’s desire is that consultation should be collective rather than individual and in casu AMCU members were afforded that right via the majority unions.

[173] Thirdly, a collective agreement in a retrenchment context, is like all collective agreements, the end product of collective bargaining and in circumstances where NUM and UASA had majority representation, AMCU members could not have asserted a right to a hearing before the conclusion of a collective agreement.

[174] Mr Myburgh SC submitted that AMCU’s contention that the employees are deprived of the right to challenge the fairness of their dismissal, is also misconceived. This is so because the legislative assumption underlying a section 23(1)(d) extension is that a minority union would not be able to secure a better deal than the majority with the result that no unfairness arises and minority union members are indeed afforded the benefit of the collective bargaining power of the majority.

[175] The effect of an extension of the collective agreement is that the minority union members in fact become part of the agreement. If the minority union were admitted to the consultation process, it would have no power to influence the process and it would be unfair for the employer to agree to something different with the minority.

[176] Mr Myburg SC also submitted that the principal flaw in AMCU’s contention that they were deprived of the right to challenge the fairness of the dismissal is its failure to recognise that a retrenchment agreement is the end product of collective bargaining. Once the consultation process mutates into a process of collective bargaining and a collective agreement is concluded, there can be no question of anyone bound by the agreement being able to contest the fairness of the dismissal as a dispute of right.

[177] In my view there is merit in this argument. To allow a challenge to the fairness of the dismissal in circumstances where there is a valid and binding collective agreement, would undermine the processes sanctioned by the LRA and would undermine the principle that, provided that the agreement is lawful, the courts should not intervene to scrutinise the bargaining conduct of the parties or the terms of the agreement.

[178] The mine’s response to this contention is that the right constitutional right to fair labour practices has been comprehensively codified in the LRA, in accordance with international labour standards.

[179] The question is whether the operation and current interpretation of sections 23(1)(d) and 189(1)(a)-(c) violate the right to fair labour practices.

[180] Mr Myburg submitted that the approach that should be adopted is whether the impugned sections give expression to the interests of both employers and employees and strike a balance consistent with fair labour practices[20].

[181] I cannot find that the impugned sections of the LRA violate the constitutional right to fair labour practices. This is so because

the impugned sections operate in a manner that is consistent with a key policy choice that underlies the LRA, namely majoritarianism and there can be no doubt that sections 23(1)(d) and 189(1)(a)-(c) of the LRA are all about majoritarianism, which is aimed at achieving the promotion of orderly collective bargaining, the effective resolution of labour disputes and labour peace. This also supports the primary objects of the LRA.

[182] In casu AMCU did not have the collective bargaining power to secure a section 189(1)(a) agreement and its members were bound by the agreements concluded with the majority unions. The mere fact that the Applicants are not satisfied or that they might be disadvantaged to some extent, can never be sufficient to find that the impugned sections amount to an unfair labour practice.

The right of access to courts

[183] In terms of section 34 of the Constitution everyone has the right to have any dispute that can be resolved by the application of law decided by a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

[184] AMCU’s complaint is that inherent to the right not to be unfairly dismissed, is the entitlement to challenge the fairness of the dismissal. On the current interpretation and application of sections 23(1)(d) and 189(1)(a)-(c), the employees cannot challenge the fairness of their dismissals.

[185] Mr Myburg SC submitted that the right of access to courts or other labour law dispute resolution forums, is limited to disputes of right and does not extend to disputes of interest as disputes of interest are not disputes that can be resolved by the application of law, as required in section 34 of the Constitution.

[186] There is merit in this argument.

Freedom of association and equality

[187] AMCU’s case is that based on the employees’ election to join a minority union, they are victims of unfair discrimination and they are treated differently to members of the majority trade unions.

[188] Mr Pretorius SC submitted that the employees elected to join a minority union and they must be held to the consequences of their

election. It is irrational for an employee who joins a minority union to claim the same rights and benefits that would accord to an employee who joins a majority union and in such an instance there can be no question of discrimination.

[189] Mr Malindi SC submitted that the employees were not discriminated against on the basis of their affiliation to AMCU. AMCU simply failed to meet the requirements of being a party to the recognition agreement, the consultation agreement and the retrenchment agreement. Being a party to a collective agreement as envisaged in section 189(1)(a)-(c) of the LRA will be dependent upon the level of representivity at any point in time and cannot constitute the basis of a contention of unfair discrimination.

[190] Mr Pretorius SC submitted that the principle of majoritarianism that underlies section 23 of the LRA, has been endorsed by the supervisory

bodies of the ILO when it was confirmed that an extension of a collective agreement to non-member employees does not contradict the principles of freedom of association insofar as it is the most representative organisation that negotiates on behalf of all

workers[21].

[191] This will not infringe or undermine the right of freedom of association and this was confirmed by the Constitutional Court in Bader Bop[22] as follows:

‘An important principle of freedom of association is enshrined in article 2 of the Convention on Freedom of Association and Protection of the Right to Organise which states:

'Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.'

Both committees have considered this provision to capture an important aspect of freedom of association in that it affords workers and employers an option to choose the particular organisation they wish to join. Although both committees have accepted that this does not mean that trade union pluralism is mandatory, they have held that a majoritarian system will not be incompatible with freedom of association, as long as minority unions are allowed to exist, to organize members, to represent members in relation to individual grievances and to seek to challenge majority unions from time to time’. [23]

[192] Mr Malindi SC submitted that the right to freedom of association of the employees was not disturbed to the extent that their choice of whether they preferred to join AMCU or NUM or UASA was not influenced by the recognition agreement.

[193] It is important to distinguish between the freedom of association and the right and duty to bargain. The freedom to associate is a freedom of the individual and the freedom to bargain is earned by representivity, which is pertinent to collective bargaining.

[194] In casu no case had been made out that the employees’ freedom of association had been infringed or is limited in any way as AMCU is

allowed to exist, to organise members, to represent members in relation to individual grievances and to challenge majority unions.

[195] Retrenchments in general are not occasioned by union membership or non-union membership but are occasioned by operational requirements and selection criteria linked to the operational requirements.

[196] I cannot find that the employees were discriminated against based on their election to join AMCU, a minority union. The employees simply experienced the consequences of belonging to a minority trade union where the principle of majoritarianism applies and that per se does not amount to discrimination.

Access to information

[197] The Applicants’ case is that their right to access information during a retrenchment process is violated as they were completely excluded from the process.

[198] The mine submitted that the disclosure of information during a section 189 process is governed by section 16 and 189(4)(a) of the

LRA. These sections oblige an employer to disclose relevant information to a consulting party during the retrenchment process.

These sections endorse the principle of majoritarianism in that the access to information is restricted to parties who are, in terms of section 189(1) of the LRA, entitled to participate in the retrenchment process.

Right to dignity

[199] Mr PretoriusSC referred to the judgment of AMCU v COM where the LAC has held[24] that:

‘The Constitutional Court held in Nokotyana that 'the right to dignity alone is rarely dispositive of a constitutional matter' and that where a court can identify the infringement of a more specific right, that right should be invoked rather than the general right (ie to dignity).

That, in my view, is the short answer to the argument. The actual right impacted was the right to engage in collective bargaining and more specifically the right to strike. Enquiry into whether the right to dignity was infringed in the circumstances of this matter will not lead to a different conclusion’.

[200] There is no reason for this Court not to follow the same reasoning. Sections 23(1)(d) and 189(1)(a) – (c) of the LRA and as they are currently interpreted and applied, do not infringe the employees’ constitutional right to dignity.

Limitations in terms of section 36 of the Constitution

[201] AMCU’s case is that the constitutional infringements that flow from the current interpretation of sections 23(1)(d) and 189(1)(a)-(c) of the LRA cannot be justified in terms of section 36 of the Constitution.

[202] Section 39(1) of the Constitution provides that when the Bill of Rights is interpreted, a court must consider the international law

and must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative

interpretation that is inconsistent with international law. I also considered the provisions of the Constitution and the objectives of the LRA.

[203] In my view the relief sought by the Applicants in respect of sections 23(1)(d) and 189(1)(a)-(c) cannot be granted as the interpretation the Applicants seek is incompatible and inconsistent with the international law, the provisions of the Constitution and the objectives of the LRA.

[204] I am of the view that the current interpretation and application of sections 23(1)(d) and 189(1)(a)-(c) of the LRA do not infringe or violate the Applicants’ constitutional rights for the reasons I fully dealt with supra.

[205] The impugned sections are on their current interpretation and application reasonably capable of a meaning that places it within constitutional bounds and as such, it should be preserved.

[206] Insofar as I may be wrong and there is indeed a violation or infringement of the constitutional rights as alleged by the Applicants, the question that arises is whether such limitation is justifiable.

[207] Mr Malindi SC submitted that sections 23(1)(d) and 189(1)(a)-(c) should be read with section 23 of the Constitution. Section 23(5) of the Constitution provides that every trade union, employers’ organization and employer has the right to engage in collective bargaining and that legislation may be enacted to regulate that and to the extent that the legislation may limit a right in the

Bill of Rights, the limitation must comply with section 36(1) of the Constitution. The legislation contemplated in section 23(5) of the Constitution is the LRA, which had been enacted to regulate collective bargaining and the limitations enacted in the consultative

framework of sections 23(1)(d) and 189(1)(a)-(c) of the LRA, meet the requirements of section 36(1) of the Constitution in that the limitations are reasonable and justifiable.

[208] Mr Malindi SC further submitted that in the event that this Court finds that any of the rights of the employees have been infringed, such limitation is justifiable as the purpose of the limitation is of sufficient importance and is in the main to be found in the purpose of the LRA as well as the legislative history of the provisions AMCU seeks to attack.

[209] The purpose of the limitations is to give effect to the obligations as a member state of the ILO and consultation with workers’ representatives as provided for in a collective agreement is in compliance with international law. Furthermore, another purpose of the LRA is realized when orderly collective bargaining is promoted and effective resolution of labour disputes is achieved.

[210] The process contended by the Applicants will not result in the effective resolution of labour disputes or orderly collective bargaining as it would mean that every individual who prefers not to join a trade union will need to be consulted in addition to all the minority trade unions.

[211] The rights are in any event only limited to the extent that non-unionised employees or members of minority trade unions are unable to represent him or herself or be represented by a minority trade union not party to a collective agreement. There is nothing precluding a minority trade union to be party to such collective agreement and in such a case, no rights are limited.

[212] Be that as it may, the purpose of consultation in a retrenchment process and the issues to be discussed as part of the process, are much broader and concern all those likely to be affected with no distinction on the basis of union membership or non-membership and as such every employee, whether they are non-unionised, a member of minority trade union or a member of the consulting union(s), is considered in the process.

[213] Insofar as any of the employees’ constitutional rights were indeed infringed or violated, it is justified and not unduly excessive. The limitation is narrow and not disproportionate. The limitation is part and parcel of the overall legislative policy choice in favour of majoritarianism and therefore there is a compelling good reason for the limitation and it serves an important policy purpose.

[214] In AMCU v COM the LAC considered the limitation of constitutional rights flowing from section 23(1)(d) of the LRA and found such limitations to be justified in terms of section 36 of the Constitution.

[215] I can see no reason to deviate.

[216] In view of my findings, it is not necessary to deal with the remainder of the relief sought by the Applicants.

[217] This Court has a wide discretion in awarding costs and in my view the interest of justice will in casu be best served by making no order as to costs.

[218] In the premises, I make the following order:

Order

1. The application is dismissed;

2. There is no order as to costs.

_______________________

Connie Prinsloo

Judge of the Labour Court

Appearances

For the Applicants

: Advocate F Boda SC with Adv R Itzkin

Instructed by

: Larry Dave Attorneys

For the First Respondent : Advocate P Pretorius SC with Advocte M van As

Instructed by

; Webber WentzelAttorneys

For the Second Respondent : Advocate H van der Riet SC

Instructed by

: Maimane Inc Attorneys

For the Fourth Respondent : Advocate G Malindi SC with Advocate Nhlapo

Instructed by

: State Attorney

For the Amicus Curiae : Advocate A Myburg SC

Instructed by

: Edward Nathan Sonnenbergs Attorneys

[1] Act 66 of 1995.

[2] Constitution of the Republic of South Africa 1996.

[3] GN 97 of 1995, GG 16259 of 10 February 1995.

[4] Chairperson of the Constitutional Assembly, ex parte: In re Certification of the Constitution of the Republic of South Africa (1996) 17 ILJ 821 (CC).

[5] (2015) 36 ILJ 3030 LC at para30.

[6] Association of Mineworkers and Construction Union and others v Chamber of Mines of SA acting in its own name and on behalf of Harmony Gold Mining Co (Pty) Ltd and others (2016) 37 ILJ 1333 (LAC).

[7] Doctors for Life International v Speaker of the National Assembly and others [2006] ZACC 11; 2006 (6) SA 416 (CC) at paras 37 and 38.

[8] Wallis “The Rule of Law and Labour Relations” (2014) 35 ILJ 894 at 861 – 862.

[9] Reference re Public Service Employee Relations Act (Alberta) (1987) 38 DLR (4th) 161, quoting Weiler “The Regulating of Strikes and Picketing under the Charter” in Weiler and Elliot (eds) Litigating the values of a nation: The Canadian Charter of Rights and Freedom (1986) at 235.

[10] 2003 (3) SA 513 (CC); (2003) 24 ILJ 305 (CC)[2002] ZACC 30; ; [2003] 2 BLLR 103 (CC) at para 13.

[11] [2000] ZACC 12; 2001 (1) SA 545 (CC) at para 26.

[12] (2016) 37 ILJ 1333 (LAC).

[13] (2015) 36 ILJ 3030 (LC).

[14] (1999) 4 BLLR 404 (LC)

[15] (2000) 21 ILJ 641 (LC); [2000] 2 BLLR 216 (LC).

[16] (2011) 32 ILJ 2617 (LAC); [2011] 10 BLLR 945 (LAC).

[17] (2016) BLLR 537 (CC), (2016) 37 ILJ 1091 (CC)

[18] Currie and De Waal The Bill of Rights Handbook (6th Ed) provides guidance on a section 36 inquiry.

[19] (2000) 21 ILJ 649 (LC) at 657 G-H.

[20] In NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC) the Constitutional Court held at paragraph 38 that fairness is not confined to workers only but means fairness to both employer and employee.

[21] ILO Freedom of Association Committee’s Digest paragraph 1052.

[22] At paragraph 31.

[23] See also AMCU v COM (2016) 37 ILJ 1333 (LAC) at para 110.

[24] Paras 130 – 131 of AMCU v COM.