Most Read Contributor in South Africa, September 2016
The increase in membership of the Association of Mineworkers and
Construction Union ("AMCU") in the Gold mining sector and
the resultant competition between it and the National Union of
Mineworkers ("NUM") has resulted in an interesting and
potentially important decision dealing with the ability of majority
unions to enter into collective agreements that bind a minority
union's members in circumstances where the minority union has
not entered into the agreement and does not want to be party to the
For several decades collective bargaining over terms and
conditions of employment that apply to employees in certain job
grades has taken place at sectoral level within the gold mining
sector. The Chamber of Mines, a registered employers'
organisation, acting on behalf of its members in the gold mining
sector, has entered into negotiations with various unions that have
been recognised for this purpose and, once agreement has been
reached, concluded a collective agreement with these unions on
behalf of its members.
The same process was followed during 2013 with AMCU joining the
collective bargaining process for the first time. After several
rounds of negotiations and a strike by the NUM, a collective
agreement was entered into between the Chamber of Mines, acting on
behalf of its members, and the NUM and two other smaller unions.
Although the offer made to these unions was also made to AMCU, it
rejected this offer and refused to sign the agreement. However, the
parties to the agreement relied on section 23(1)(d) of the Labour
Relations Act, 66 of 1995 ("LRA") to extend the agreement
to AMCU's members and thus to bind them to the agreement. The
terms set out in this agreement were then applied to all employees
within the bargaining unit of the members concerned.
Some months later, AMCU issued a notice of strike action to the
three largest mining houses in the gold mining sector where it had
members. The Chamber of Mines sought to interdict the strike on the
basis that AMCU's members were bound by the collective
agreement entered into with the NUM and the two other unions.
ENSafrica acted for the Chamber of Mines in bringing the interdict
It argued that the agreement was binding on AMCU members by
virtue of section 23(1)(d). This provides that one or more trade
unions can enter into a collective agreement which can then be made
binding on employees who are not members of this trade union or
these trade unions, if certain requirements are met. One of these
requirements is that the union or unions that entered into the
agreement have as their members the majority of the employees
employed in the workplace of the employer concerned.
The primary points argued during the course of the Labour Court
hearing were –
What constituted the workplace in this context?
Did section 23(1)(d) apply to this situation, i.e. where
collective bargaining was taking place at sectoral level in
circumstances where no bargaining council existed.
As far as the workplace issue was concerned, the Chamber of
Mines argued that all the mining operations taken together of each
individual employer constituted a single workplace. It further
argued that the three unions that had signed the agreement had
majority membership within each employer's workplace, as so
defined. AMCU argued that this was not the case. Its argument was
that smaller workplaces existed in respect of each employer and
that in at least some of these smaller workplaces the three unions
did not enjoy majority support; the agreement could therefore not
have been extended to AMCU members at these workplaces.
The Labour Court accepted the Chamber of Mine's argument and
found that the question whether the three unions that had signed
the collective agreement had majority membership had to be
determined with reference to definition of the workplace as argued
for by the Chamber. It accepted that the three unions enjoyed the
requisite majority membership within each of the employer's
The Court also accepted that section 23(1)(d) could also be
applied in this situation.
An interim order interdicting the strike was therefore issued.
The question whether the order should be confirmed and made final
or discharged will probably be considered by the Labour Court in
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