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 agreement.
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 application.
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 workplaces.
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 March 2014.
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