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[2002] ZACC 30
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National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and Another (CCT14/02) [2002] ZACC 30; 2003 (2) BCLR 182; 2003 (3) SA 513 (CC) ; [2003] 2 BLLR 103 (CC); (2003) 24 ILJ 305 (CC) (13 December 2002)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 14/02
NATIONAL UNION OF METALWORKERS
OF
SOUTH AFRICA First Applicant
M NKGABUTLE AND 291 OTHERS Second to 293rd
Applicants
versus
BADER BOP (PTY) LTD First
Respondent
MINISTER OF LABOUR Second Respondent
Heard on : 19 September 2002
Decided on : 13 December
2002
JUDGMENT
O’REGAN J:
| [1] | This application for leave
to appeal concerns an order made by the Labour Appeal Court (the LAC)
interdicting the National Union of
Metalworkers and 292 of its members who are
employed by Bader Bop (Pty) Ltd from participating in or furthering a strike in
support
of organisational demands made by the union and its members. The key
question in the case is whether a minority union and its members
are entitled to
take lawful strike action to persuade an employer to recognise its shop
stewards. The LAC held that such strike
action is unlawful and
unprotected. |
| [2] | The applicants approached
this Court in March 2002 seeking direction as to the procedure they should
follow in making an application
to this Court for leave to appeal against the
judgment of the LAC. As the question of the appropriate procedure to be
followed in
such cases was pending before the Court in another matter at the
time,[1] and as the respondent did not
object to this process, directions were given excusing the applicants from
obtaining the certificate
required by rule
18(2).[2] The application for leave
to appeal was opposed. It was enrolled and counsel were instructed to address
not only the issue of leave
to appeal, but also the merits of the dispute. The
second respondent, the Minister of Labour, was not a party to the dispute in
the
LAC but was cited as the second respondent in the application for leave to
appeal as the application challenged the constitutionality
of the Labour
Relations Act 66 of 1995 (the Act). The applicants gave notice to the Minister
of their intention to appeal against
the judgment of the LAC by letter on 8
January 2002 and the application for leave to appeal was served on him during
May 2002. |
| [3] | On 19 July 2002, the
Minister of Labour indicated his intention not to oppose the application for
leave to appeal and his willingness
to abide the decision of this Court.
However, on 10 September 2002 just before the application was to be heard, the
Minister filed
both an application to intervene in the proceedings and an
application for condonation of the late filing of the application to intervene.
In the condonation application the deponent, an official in the Department of
Labour, seeks to explain why having been given effectively
eight months’
notice of the application for leave to appeal, it sought to intervene in the
proceedings only shortly before
the matter was to be
heard. |
| [4] | It is a matter of grave
concern that the Minister of Labour should have sought to intervene in the
matter so late in the day, and
that no affidavits on the substantive issues to
be considered in the appeal were ever lodged on his behalf. Constitutional
adjudication
is compromised in circumstances where the views of the executive
branch of government responsible for the implementation of the legislation
under
challenge are not properly aired before the Court. On the other hand, the Court
cannot condone unreasonable delays by the
executive branch in putting its views
before the Court. The explanations given by the deponent were not such as to
persuade this
Court that grounds for condonation existed. However, given the
fact that neither of the other parties to the litigation objected
to the
application, the court received the brief heads prepared on behalf of the
Minister. In these heads, it was made clear that
the Minister supported the
judgment of the LAC. This attitude has been considered by the Court in reaching
its decision in this
matter. It should be noted, however, that those heads
contained no sustained attempt to suggest that the interpretation of the Act
adopted by the LAC, to the extent that it results in a limitation of the right
to strike, constitutes a justifiable limitation of
a constitutional
right. |
| [5] | The question of the
appropriate procedure to be followed in appeals from the LAC has been dealt with
in the judgment of this Court
in NEHAWU and Others v UCT and
Others[3] and does not need to be
reconsidered here. Accordingly, I shall first set out the background to the
dispute, then consider the application
for leave to appeal and finally consider
the merits of the application. |
Background to
the dispute
| [6] | The first respondent, Bader
Bop (Pty) Ltd, manufactures leather products for the automobile industry and
employs approximately 1000
semi-skilled and unskilled employees in Ga-rankuwa
outside Pretoria. Since early 1999, the General Industrial Workers Union of
South
Africa has represented the majority of the first respondent’s
workers and has enjoyed the organisational rights regulated by
Part A of Chapter
III of the Labour Relations Act 66 of 1995 (the
Act). |
| [7] | Section 12 provides that
trade union officials may have access to an employer’s premises for
purposes of recruiting members,
or communicating with them, or for holding
meetings outside working hours.[4]
Section 13 provides that members of trade unions may authorise their employer to
deduct their trade union subscriptions from their
salaries and remit the
subscriptions to the trade union.[5]
Section 14 provides for the recognition of elected shop stewards for certain
purposes, most importantly, perhaps, to represent its
members in grievance and
disciplinary proceedings[6] and
section 15 provides that employees of unions who are union office-bearers are
entitled to reasonable amounts of time off during
working hours in order to
attend to union business.[7] Section
16 provides that a union may require disclosure of certain
information.[8] The rights conferred
by sections 12, 13 and 15 are conferred upon trade unions who are
“sufficiently representative of the
employees employed by an employer in a
workplace”.[9] The rights
conferred by sections 14 and 16, however, are conferred upon trade unions that
have as members a majority of the employees
employed in the
workplace.[10] |
| [8] | On 16 August 1999 the first
applicant (the union) wrote to the first respondent (the employer) claiming to
represent a large number
of its employees. Several meetings between the union
and the employer then took place at which the union sought to persuade the
employer to grant it the organisational rights contemplated by sections 12 - 15
of the Act. It was common cause between the parties,
however, that the union
represented not a majority, but only about 26% of the workers at the
employer’s workplace. The employer’s
attitude was that it was
willing to afford the union access to its premises as contemplated by section
12, and stop-order facilities
as contemplated by section 13. As the union was
not representative of a majority of its workforce, it was not willing to
recognise
the union’s shop stewards, nor was it willing to bargain
collectively with the union. |
| [9] | The union then declared a
dispute over the question of organisational rights and, in particular, the
question of the recognition of
its shop stewards and its right to bargain
collectively on behalf of its members. That dispute was referred to
conciliation at the
Commission for Conciliation, Mediation and Arbitration (the
CCMA) but, despite a meeting at the CCMA, remained unresolved. Thereafter
the
union informed the company that it intended to institute strike action in terms
of Chapter IV of the Act. |
| [10] | The employer’s view
was that the union was not entitled to take strike action to demand the
recognition of its shop stewards
and it accordingly approached the Labour Court
for an interdict. The union argued that it was entitled to take strike action,
that
it had followed the necessary procedures and that the strike was therefore
protected in terms of the Act. The Labour Court dismissed
the application for
an interdict, whereupon the employer appealed to the LAC, which upheld the
appeal and granted the interdict. |
| [11] | The Court, however, divided
sharply. Two judgments were written in support of the grant of the interdict,
one by Zondo JP, and one
by Du Plessis AJA, and a dissent was noted by Davis
AJA. The difference between the judgments turned on an interpretation of
section
14 of the Act, read with section 21 and Chapter IV of the Act. The
majority view, broadly speaking, is that the Act confers the
right upon unions
to have their shop stewards recognised only when the union is representative of
a majority of the workers in a
workplace. If a union is not a majority union,
it cannot demand as of right that its shop stewards be recognised, nor may it
lawfully
strike to make such a demand. The minority judgment takes the view
that such a reading of the Act, which results in the limitation
of a right to
strike, should be avoided. |
| [12] | The applicants then
approached this Court, arguing that on the interpretation of the relevant
provisions of the Act adopted by the
majority of the LAC, the provisions
constitute an infringement of their right to strike enshrined in section 23 of
the Constitution.
They contended that the provisions could be construed
consistently with the Constitution. In the alternative, they argued that
if the
interpretation adopted by the LAC was correct, the Act was unconstitutional in
that it constituted an unjustifiable limitation
of the right to strike. Section
23 provides that: |
“(1) Everyone has the right to fair labour practices.
(2) Every worker has the right
–
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right
–
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’
organisation.
(4) Every trade union
and every employers’ organisation has the right –
(a) to
determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a
federation.
(5) Every trade union, employers’ organisation and employer has the right
to engage in collective bargaining. National legislation
may be enacted to
regulate collective bargaining. To the extent that the legislation may limit a
right in this Chapter, the limitation
must comply with section 36(1).
(6) National legislation may recognise union security arrangements contained in
collective agreements. To the extent that the legislation
may limit a right in
this Chapter, the limitation must comply with section
36(1).”
| [13] | In section 23, the
Constitution recognises the importance of ensuring fair labour relations. The
entrenchment of the right of workers
to form and join trade unions and to engage
in strike action, as well as the right of trade unions, employers and employer
organisations
to engage in collective bargaining, illustrates that the
Constitution contemplates that collective bargaining between employers and
workers is key to a fair industrial relations environment. This case concerns
the right to strike. That right is both of historical
and contemporaneous
significance. In the first place, it is of importance for the dignity of
workers who in our constitutional order
may not be treated as coerced employees.
Secondly, it is through industrial action that workers are able to assert
bargaining power
in industrial relations. The right to strike is an important
component of a successful collective bargaining system. In interpreting
the
rights in section 23, therefore, the importance of those rights in promoting a
fair working environment must be understood.
It is also important to comprehend
the dynamic nature of the wage-work bargain and the context within which it
takes place. Care
must be taken to avoid setting in constitutional concrete,
principles governing that bargain which may become obsolete or inappropriate
as
social and economic conditions change. |
| [14] | Two questions now arise for
consideration. First, whether the application for leave to appeal should be
granted and secondly, if
it should, the merits of the
appeal. |
The application for leave to
appeal
| [15] | Two issues arise in this
regard – the question of whether the Court has jurisdiction in the matter
and, if it does, the question
of whether it is in the interests of justice for
the Court to entertain the appeal. In terms of section 167(3)(b) of the
Constitution,
this Court has jurisdiction to decide constitutional matters and
issues connected with constitutional matters. The issue in this
case concerns
the interpretation of provisions of the Labour Relations Act. The applicants
argue that the interpretation adopted by the majority of the LAC constitutes an
infringement of their constitutional right
to strike; alternatively they argue
that the Act itself limits unjustifiably the constitutionally entrenched right
to strike. The
issues in the case clearly constitute constitutional
matters.[11] |
| [16] | The next question that
arises is whether it is in the interests of justice that leave to appeal be
granted. The Court has already
developed principles governing the phrase
“interests of
justice”.[12] An important
consideration relevant to the interests of justice for the purposes of this case
is the nature of the constitutional
issue at stake and its
importance.[13] Here we are
concerned with the interpretation of provisions of the Act. The interpretation
adopted by the LAC restricted the ability
of the union and its members to strike
in the circumstances of this case. This restriction, the applicants argue,
results in a limitation
of their constitutional right to strike. The LAC
interpretation, if it stands, will affect all trade unions and their members who
are similarly situated. The importance of the issue thus extends beyond the
interests of those directly involved in it. This is
an important consideration
in determining whether it is in the interests of justice to entertain the
appeal. |
| [17] | This Court has also held
that prospects of success on appeal will be an important though not
determinative criterion.[14] In
this regard, no certificate has been provided by the
LAC[15] indicating its views on
whether there are prospects of success or not. However, the LAC was divided on
the interpretation of the
relevant provisions of the Act. Moreover, the
conclusion of the court of first instance, the Labour Court, coincided with that
of
the dissent in the LAC. A reading of the provisions of the Act makes it
clear that there is no express provision prohibiting strikes
by minority unions
and the issue requires a careful consideration of the provisions of the Act in
the context of the Constitution.
In the circumstances, I am satisfied that
there are sufficient prospects of success on
appeal. |
| [18] | Both respondents argued
that the constitutional matter had not been adequately raised in the LAC and
that accordingly it would not
be in the interests of justice for this Court to
entertain the appeal. There can be no doubt that, where possible,
constitutional
matters must be raised at the earliest opportunity by litigants
and that this Court will be reluctant to entertain an appeal where
a
constitutional issue has not been properly raised earlier in the
litigation.[16] |
| [19] | It is plain from all three
judgments in the LAC that the judges of that Court were alert to the
constitutional implications of the
interpretive question at issue. Accordingly,
it cannot be said that this Court has been deprived of the collective wisdom and
expertise
of the LAC on the constitutional matter raised here. Nor can it be
said that either of the respondents were not fully and timeously
alerted to the
constitutional issue in the appeal. I cannot conclude that this factor should
weigh against the grant of the application
for leave to
appeal. |
| [20] | Finally, the first
respondent argued that the legislature had established specialist courts to
resolve disputes in the field of labour
relations expeditiously and that
therefore this Court should be slow to interfere in such disputes. This is so
and is a factor relevant
to the interests of justice. However, in this case the
applicants argue that the decision reached by the LAC infringes their
constitutional
rights. This Court must uphold the Constitution and ensure that
the rights entrenched in it are protected. The Court would be shirking
that
duty were it to hold that it should never entertain appeals from the LAC.
Where, as in the present case, the applicants argue
that their rights (and the
rights of others) are being infringed by a judgment of that Court, that will be
a factor in favour of
granting leave to appeal. |
| [21] | In all these circumstances,
it is in the interests of justice for this Court to entertain the appeal and I
turn now to consider the
merits of the
appeal. |
Relevant statutory provisions
| [22] | Chapter III, Part A of the
Act regulates organisational rights. In particular, as described above, section
12, 13 and 15 of the Act
confer enforceable organisational rights upon
“sufficiently representative” trade unions. These rights relate to
access
to the workplace, stop-order facilities and time off for union
activities. Section 14 and 16 confer enforceable organisational rights
on
unions who are representative of a majority of the employees at a particular
workplace. As stated above, section 14 relates to
the recognition of union shop
stewards, while section 16 relates to the disclosure of
information. |
| [23] | The mechanism for
enforcement of the organisational rights conferred by Chapter III, Part A of the
Act is provided, in the first place
by section 21 of the
Act.[17] The section provides that
a union must notify an employer of the rights it is seeking to exercise and must
then meet with the employer
to conclude a collective agreement in respect of
those rights. If an agreement cannot be reached, either the union or the
employer
may refer the dispute to the CCMA which must seek to resolve the
dispute through conciliation. If that fails, either party has a
right to refer
the matter to arbitration. |
| [24] | Ordinarily the scheme of
the Act is that where a dispute may be referred to arbitration, it is not a
matter that can constitute the
basis for a strike. Section 65(1)(c) provides
that: |
“(1) No person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or a lock-out
if
–
(a) . . . .;
(b) . . . .;
(c) the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of this
Act;”.[18]
However,
section 65(2) creates an exception to this rule. It provides that:
(2) (a) Despite section 65(1)(c), a person may take part in a strike or lock-out
or in any conduct in contemplation or in furtherance
of a strike or lock-out if
the issue in dispute is about any matter dealt with in sections 12 to 15.
(b) If the registered trade union has given notice of the proposed strike in
terms of section 64(1) in respect of an issue in dispute
referred to in
paragraph (a), it may not exercise the right to refer the dispute to arbitration
in terms of section 21 for a period
of 12 months from the date of the
notice.”
Accordingly, a trade
union or employer still dissatisfied after the failure of the section 21
conciliation proceedings may opt for
industrial action or for arbitration. If a
union opts for strike action, however, it may not then refer the matter to
arbitration
for a period of 12 months from the date on which it gives notice of
the strike in terms of section 64(1) of the
Act.[19]
| [25] | So far, the scheme of the
Act is clear. Sufficiently representative trade unions, and those unions that
claim to be sufficiently
representative, may seek to enforce those
organisational rights which they claim the Act confers upon them by adjudication
(mediation
and arbitration) or by industrial action. It is not clear what
options (if any) those unions that are not sufficiently representative
to be the
beneficiaries of the rights conferred by Chapter III, Part A of the Act have to
obtain organisational rights. There is
no express provision of the Act
regulating their position. The question that arises is whether the Act must
necessarily be interpreted
to preclude non-representative unions from obtaining
organisational rights, either through agreement with the employer, or through
industrial action. |
| [26] | In determining the proper
meaning of this Act in this respect it is important to note the purpose of the
Act expressly stated in section
1: |
“The purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by fulfilling the
primary objects of this Act, which are
–
(a) to give effect to and regulate the fundamental rights conferred by section
27 of the Constitution;
(b) to give effect to obligations incurred by the Republic as a member state of
the International Labour Organisation;
(c) to provide a framework within which employees and their trade unions,
employers and employers’ organisations can
–
(i) collectively bargain to determine wages, terms and conditions of employment
and other matters of mutual interest; and
(ii) formulate industrial policy;
and
(d) to promote
–
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour
disputes.”
The first purpose
of the Act is thus to give effect to constitutional
rights.[20] Secondly, the Act also
makes clear that it is intended to give legislative effect to international
treaty obligations arising from
the ratification of International Labour
Organisation (ILO) conventions. South Africa’s international obligations
are thus
of great importance to the interpretation of the Act. Thirdly, the Act
seeks to provide a framework whereby both employers and employees
and their
organisations can participate in collective bargaining and the formulation of
industrial policy. Finally, the Act 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.
| [27] | The Act contains a further
important interpretive instruction. Section 3 provides
that: |
“Any person applying this Act must interpret its provisions
–
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the
Republic.”
Once again this provision
emphasises that the Act is to be interpreted to give effect to constitutional
rights and to international
law obligations.
| [28] | Section 39(1) of the
Constitution provides that: |
“When interpreting the Bill of Rights, a court, tribunal or forum
–
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.”
As has
already been acknowledged by this
Court,[21] in interpreting section
23 of the Constitution an important source of international law will be the
conventions and recommendations
of the ILO.
| [29] | There are two key ILO
Conventions relevant to the issue at hand: the Freedom of Association and
Protection of the Right to Organise
Convention, 1948 (No. 87) and the Right to
Organise and Collective Bargaining Convention, 1949 (No.
98).[22] South Africa is a member
of the ILO and has ratified both these
Conventions.[23] There are also two
key supervisory bodies engaged in ensuring the observation and application of
these Conventions: the Committee
of Experts on the Application of Conventions
and Recommendations;[24] and the
Freedom of Association Committee of the Governing Body of the ILO. The
Committee of Experts is composed of twenty recognised
experts in the field of
labour law who are independent of their governments and appointed by the
Governing Body of the ILO on the
recommendation of its
Directive-General.[25] It reviews
the national reports received from member states on the implementation of the
conventions. |
| [30] | The Freedom of Association
Committee hears complaints about alleged breaches of the principles of freedom
of association and has developed
a complex jurisprudence on freedom of
association.[26] The Committee
comprises three representatives each of governments, employers and workers, with
an independent chairperson. Its
decisions are therefore an authoritative
development of the principles of freedom of association contained in the ILO
conventions.
The jurisprudence of these committees too will be an important
resource in developing the labour rights contained in our
Constitution. |
| [31] | 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 organise members, to represent members in
relation to individual
grievances and to seek to challenge majority unions from
time to time.[27]
| [32] | Although none of the ILO
Conventions specifically referred to mentions the right to strike, both
committees engaged with their supervision
have asserted that the right to strike
is essential to collective
bargaining.[28] The Committees
accept that limitations on the right to strike for certain categories of workers
such as essential services,[29] and
limitations on the procedures to be
followed[30] do not constitute an
infringement of the freedom of association. |
| [33] | These principles culled
from the jurisprudence of the two ILO committees are directly relevant to the
interpretation both of the relevant
provisions of the Act and of the
Constitution. |
| [34] | Of importance to this case
in the ILO jurisprudence described is firstly the principle that freedom of
association is ordinarily interpreted
to afford unions the right to recruit
members and to represent those members at least in individual workplace
grievances; and secondly,
the principle that unions should have the right to
strike to enforce collective bargaining demands. The first principle is closely
related to the principle of freedom of association entrenched in section 18 of
our Constitution,[31] which is given
specific content in the right to form and join a trade union entrenched in
section 23(2)(a), and the right of trade
unions to organise in section 23(4)(b).
These rights will be impaired where workers are not permitted to have their
union represent
them in workplace disciplinary and grievance matters, but are
required to be represented by a rival union that they have chosen not
to
join. |
| [35] | The second principle
relates to the right of a union to take industrial action to pursue its demands.
Once again, the question is
whether the workers’ right to strike in order
to force an employer to recognise shop stewards for the purposes of grievance
and disciplinary proceedings, amongst other things, has been limited by the Act.
Prohibiting the right to strike in relation to a
demand that itself relates to a
fundamental right otherwise not protected as a matter of right in the
legislation would constitute
a limitation of the right to strike in section 23.
No substantial argument was submitted on behalf of the employer or the
Department
of Labour as to why such a limitation would be
justifiable. |
| [36] | Taking these two principles
together, it can be said that the jurisprudence of the enforcement committees of
the ILO would suggest
that a reading of the Act which permitted minority unions
the right to strike over the issue of shop steward recognition, particularly
for
the purposes of the representation of union members in grievance and
disciplinary procedures, would be more in accordance with
the principles of
freedom of association entrenched in the ILO Conventions. Similarly, it would
avoid a limitation of the right
of freedom of association in section 18 of our
Constitution; and the rights of workers to form and join trade unions and to
strike;
as well as the right of trade unions to organise and bargain
collectively entrenched in section 23 of our Constitution. It should,
however,
be emphasised that no substantial argument was addressed to us as to why an
interpretation of the statute that would have
the effect of limiting the
constitutional rights in issue would be justifiable. It is not appropriate
therefore to see grounds for
such justification if an interpretation of the Act
which avoids such limitation is possible. |
| [37] | 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.[32] 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 may 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 section 36 of the Constitution. |
| [38] | It is now necessary to turn
to consider the specific provisions of the Act in some greater detail. In
reaching his conclusion that
the provisions of the Act must necessarily be
interpreted to deny minority unions a right to strike over organisational
rights, Zondo
JP relied on the procedure provided by section 21 and, in
particular, section 21(8) and section
21(11).[33] Section 21(8) provides
that in determining whether a union is representative for the purposes of the
organisational rights, the
commissioner must seek “to minimise the
proliferation of trade unions” in a workplace, “encourage a system
of a
representative union” and “minimise the financial burden”
on an employer occasioned by granting organisational
rights to more than one
union. These principles are clearly of particular importance where the
commissioner is concerned with a
dispute about what constitutes
“sufficiently representative” for the purposes of sections 12, 13
and 15. They can be
of almost no application in relation to sections 14 and 16
where the decisive criterion is whether the union or unions concerned
represent
a majority of the workforce. Section 21(11) provides that an employer who
considers a union to have lost its representative
status may apply to the CCMA
to withdraw organisational rights conferred by the statute. Du Plessis AJA also
referred to section
18 of the Act to support the conclusion of the
majority.[34] This provision
permits employers and unions to conclude a collective agreement to establish the
specific threshold necessary to
exercise the rights in sections 12, 13 and 15
defined in the Act as “sufficiently representative”. Du Plessis AJA
reasoned
that this provision, too, suggested that minority unions could not use
strike action to obtain organisational rights in conflict
with such an
agreement. |
| [39] | The interpretation by the
majority of the LAC is one which the text may plausibly bear. However, it fails
to take into account sufficiently
the considerations that arise from the
discussion of the ILO Conventions outlined above and, in particular, does not
avoid the limitation
of constitutional rights. The question we must answer,
therefore, is whether the Act is capable of an interpretation that does avoid
limiting constitutional rights. |
| [40] | In my view, there is such
an interpretation. Part A of Chapter III of the Act expressly confers
enforceable organisational rights
on certain unions – unions that are
either sufficiently representative (sections 12, 13 and 15) or majority unions
(section
14 and 16). These are enforceable rights and the mechanism for their
enforcement is also provided for in Part A. That mechanism
is conciliation
followed by arbitration. Unusually, in the overall scheme of the Act, unions
and employers are given a choice between
arbitration and industrial action
should conciliation fail. There is nothing in Part A of Chapter III, however,
which expressly
states that unions which admit that they do not meet the
requisite threshold membership levels are prevented from using the ordinary
processes of collective bargaining and industrial action to persuade employers
to grant them organisational facilities such as access
to the workplace,
stop-order facilities and recognition of shop stewards. These are matters which
are clearly of “mutual interest”
to employers and unions and as such
matters capable of forming the subject matter of collective
agreements[35] and capable of being
referred to the CCMA for
conciliation,[36] the condition
precedent to protected strike action. |
| [41] | Section 20 of the Act which
forms part of Chapter III, Part A confirms this as
follows: |
“Nothing in this Part precludes the conclusion of a collective agreement
that regulates organisational rights.”
Both Zondo JP
and Du Plessis AJA were of the view that this provision did not mean that
minority unions could conclude collective
agreements affording organisational
rights but is a “clarificatory provision” which provides that
agreements between
representative unions (within the definition of the section)
and employers may “regulate” rights. Such a reading of
section 20
is a narrow one and not one suggested by the ordinary language of the text which
states that nothing in Part A of Chapter
III prevents collective agreements
being concluded. Any other provision of the chapter which suggests the contrary
is to be read
subject to this provision. In an Act committed to freedom of
association and the promotion of orderly collective bargaining, which
requires
that employers and unions should have freedom to conclude agreements on all
matters of mutual interest, a narrow reading
of section 20 is an inappropriate
one. Moreover, the rights conferred by Part A of Chapter III may in any event
be regulated by
the collective agreements expressly contemplated by section 21.
In my view, a better reading is to see section 20 as an express
confirmation of
the internationally recognised rights of minority unions to seek to gain access
to the workplace, the recognition
of their shop-stewards as well as other
organisational facilities through the techniques of collective
bargaining.
| [42] | On this approach the proper
interpretation of section 21 would be different from that suggested by the
judges in the LAC. There is
some suggestion in all three LAC judgments that the
section 21 procedure is available even to those trade unions that are admittedly
not sufficiently representative to be entitled to exercise the particular
organisational rights concerned. On the interpretation
of the Act adopted here,
section 21 is available in two circumstances. The first is where a sufficiently
representative union wishes
to use the procedure to determine the manner in
which the rights are to be exercised. The second is where there is a dispute as
to whether the union is sufficiently representative or not. Section 21 on its
own terms, however, is not available to a union that
admits that it is not
sufficiently representative as contemplated by the Act. On the other hand,
however, section 21 should not
be read to deny such unions the right to pursue
organisational rights through the ordinary mechanisms of collective
bargaining. |
| [43] | Where employers and unions
have the right to engage in collective bargaining on a matter, the ordinary
presumption would be that both
parties would be entitled to exercise industrial
action in respect of that matter. There is nothing in sections 64 or 65
suggesting
that there is a limitation on the right to strike in this regard.
Davis AJA in his dissent in the LAC also pointed to the fact that
there was no
express limitation on the right to strike in this respect. It was his view that
in the absence of any express prohibition,
the Act should be read so as to
afford the right to strike to minority unions in these cases consistently with
the right to strike
in the Constitution. On the interpretation adopted here,
the provisions of section 65(1)(c) and 65(2) have no application to the
dispute.
These provisions are relevant only to those disputes which parties may refer to
arbitration. Where a union concedes that
it is not entitled to the rights in
sections 12 - 15 because it is not representative as contemplated in Chapter
III, Part A, the
arbitration procedure is not open to it and accordingly section
65(1)(c) poses no bar to industrial action. The precise scope and
purpose of
section 65(2) is therefore of no application
either. |
| [44] | The respondent argued that
because the union had sought to ground its demand in section 14 and relied on
section 21 in its reference
to the CCMA, it was prevented from asserting a
different approach in this Court. It would be inconsistent with the overall
purposes
of the Act for the union to be deprived of relief because of the manner
in which it had formulated the dispute. It is correct that
the employer has an
interest in understanding the nature of the rights asserted by the union. By
the time the matter was argued
in this Court, however, the employer was fully
informed of the union’s position. It would not be appropriate to
determine
the legal issue in this case on the basis of the manner in which the
union sought to characterise the dispute in the
CCMA. |
| [45] | The implications of both
the approach to interpretation adopted here, and the interpretation itself will
be important for labour law.
However, its effect may have only a limited impact
on industrial relations practice. A minority union that does not qualify even
as “sufficiently representative” will rarely be able to launch an
effective strike against an employer to secure access
to the workplace,
stop-order facilities or time off for trade union activities. The more members
the union has, the more likely
the employer will accept that it is sufficiently
representative within the meaning of the Act, at least for the purposes of
sections
12, 13 and 15. The approach preferred in this judgment will have its
greatest effect in relation to the recognition of shop stewards.
Unions are
only entitled to have their shop stewards recognised when they can establish
they are the majority unions. The limitation
on the right of union members to
be represented by their own shop stewards is where the nub of the constitutional
complaint lies.
However, the interpretation adopted does not mean that minority
unions will be entitled to have their shop stewards recognised.
It means only
that the recognition of their shop stewards is a legitimate subject matter for
bargaining and industrial action.
Employers will not be obliged to recognise
shop-stewards for all or any of the purposes contemplated by section 14. The
precise
purposes for which recognition is granted, if granted at all, will be a
matter for the process of collective bargaining to
resolve. |
| [46] | I conclude therefore that
the relevant provisions of the Act can be read so as to avoid the limitation of
fundamental rights occasioned
by the interpretation placed upon those provisions
by the LAC. It must follow that the interpretation adopted by the majority in
the LAC is not the constitutionally appropriate interpretation of the relevant
provisions of the Act. This reasoning, however, should
not be considered to
preclude the right of the legislature to limit the rights in this fashion or any
other, if it can do so in a
justifiable way for an important governmental
purpose. Such a case was not made out and need not be considered further here.
I
should also add that the question of the limitation of the rights of minority
unions in relation to disclosure of information as
contemplated by section 16 of
the Act may well raise different issues which could result in a different
outcome. It is not necessary
to consider that further
here. |
Order and costs
| [47] | In the circumstances, the
appeal is allowed. During the hearing, both parties accepted, given that this
litigation was between two
non-governmental parties, that the ordinary rules of
costs should apply and that costs should follow the result. Although the rule
of costs in labour matters is often different to the ordinary rule, it seems
appropriate that the applicants who have successfully
defended a constitutional
right should be entitled to their costs in this Court and in the court
below. |
| [48] | The following order is
made: |
1. The application for leave to appeal is granted and the appeal is
upheld.
2. The order of the LAC is set aside and replaced with an order in the following
terms:
2.1 The appeal is dismissed.
2.2 The appellant is ordered to pay the respondent’s
costs.
3. The respondent is ordered to pay the costs of the applicants in the
Constitutional Court. Such costs to include the costs of
two
counsel.
Chaskalson CJ, Langa DCJ,
Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J and Yacoob J
concur in the judgment of O’Regan
J.
NGCOBO J:
Introduction
| [49] | I have read the judgement
of O’Regan J. I concur in the order that she proposes; however, I differ
in the approach I take to
the issues confronting us, in my emphasis and in the
extent to which I elaborate on the reasoning, but not
otherwise. |
| [50] | The outcome of this
application for leave to appeal depends upon the true issue that was in dispute
between NUMSA and Bader Bop.
In this Court, as in the court below, there was an
issue as to the true nature of the dispute between the parties, in particular,
the issue concerned the question whether NUMSA was seeking the statutory
organisational rights conferred by section 14 of the Part
A of Chapter III or
whether it was seeking organisational rights outside those conferred by section
14. If NUMSA was seeking the
statutory organisational rights, the application
cannot succeed because NUMSA was admittedly an unrepresentative union and thus
not
entitled to these rights. However, if NUMSA was seeking organisational
rights outside Part A of Chapter III, then three issues arise
for our
consideration, namely; (a) whether an unrepresentative union can assert
organisational rights outside of Part A of Chapter
III of the Labour Relations
Act, 1995 (LRA); (b) if they do have that right, whether they have the right to
strike in the pursuit
of such organisational rights; and (c) what mechanism they
have for the enforcement of such rights. |
| [51] | The issues raised in this
case require us to construe the LRA, a statute which was enacted to give effect
to section 23 of the Constitution.
In a recent judgment of this Court, we held
that “the proper interpretation of the LRA will raise a constitutional
issue”.[37] In announcing
this approach, we also held that this does not mean that we will hear all
appeals from the LAC dealing with the interpretation
and application of the LRA,
but “will be slow to hear appeals from the LAC unless they raise important
issues of principle.”[38] The
present application raises such issues. It is in the interests of justice for
us to hear this case. But first, the true nature
of the dispute between NUMSA
and Bader Bop must be determined. |
The true
nature of the dispute
| [52] | It is the duty of a court
to ascertain the true nature of the dispute between the parties. In
ascertaining the real dispute a court
must look at the substance of the dispute
and not at the form in which it is
presented.[39] The label given to a
dispute by a party is not necessarily
conclusive.[40] The true nature of
the dispute must be distilled from the history of the dispute, as reflected in
the communications between the
parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration (CCMA), before and after
referral
of such dispute.[41] These
would include referral documents, the certificate of outcome and all relevant
communications. It is also important to bear
in mind that parties may modify
their demands in the course of discussing the dispute or during the conciliation
process.[42] All of this must be
taken into consideration in ascertaining the true nature of the
dispute. |
| [53] | Initially NUMSA claimed
that it had a majority representation at Bader Bop and on this basis sought to
assert the organisational rights
in section 12, 13 and 14 of Part A of Chapter
III. It would appear that the section 12 and 13 rights were readily conceded.
When
Bader Bop convincingly demonstrated that NUMSA had no more than 26.6%
representation and that GIWUSA had approximately 66%, NUMSA
accepted this,
albeit reluctantly. It nevertheless persisted in seeking the organisational
rights. But this time, as evidenced
in a letter, dated 24 February 2000,
written by NUMSA to Bader Bop, its claim was based “upon consolidation of
its membership
in respect of [Bader Bop’s] sister plant Bader Sewing where
[it] enjoys majority membership and further, in terms of sections
4(1), (2) and
(3) of Chapter II of the LRA and section 27 of the Constitution.” The
reference to section 27 of the Constitution
should be a reference to section 23.
In a letter of 8 March 2000, Bader Bop disputed both NUMSA’s claim and its
basis. |
| [54] | It is clear that NUMSA
subsequently modified not only the basis for its claim but also its claim. It
was no longer claiming majority
support at Bader Bop but its claim for majority
support was based on its combined membership at Bader Bop and Sewer. In
addition,
it also added section 4 of the LRA (freedom of association) as a basis
for claiming organisational rights. The latter claim was
clearly not based on
Part A of Chapter III. In my view, the dispute between NUMSA and Bader Bop
consisted of two alternative disputes,
namely, whether NUMSA could assert
majority status on the basis of its combined membership at Bader Bop and Bader
Sewing; and if
not, whether NUMSA was nevertheless entitled to obtain
organisational rights outside of the ambit of Part A of Chapter
III. |
| [55] | By the time the dispute
reached the Labour Court, NUMSA was asserting only organisational rights outside
of Part A of Chapter III.
This is apparent from its answering affidavit in
which it denied that section 14(1) precludes a union from exercising the
organisational
rights referred to in section 14 unless the union has majority
support. In support of this denial, it referred to section 20 which
provides
that nothing in Part A precludes the conclusion of a collective agreement that
regulates organisational rights.[43]
This denial coupled with the reliance on section 20 evidences an intention to
seek organisational rights outside of Part A. |
| [56] | This must be viewed against
the acceptance by NUMSA that it does not enjoy majority representation at the
workplace. It seems to
me that where a union accepts that it is not a
representative union as defined in the LRA and accepts that Part A does not
confer
any rights upon it, but nevertheless contends that it is entitled to
section 14 organisational rights, the dispute which arises must
be whether such
union is entitled to organisational rights outside Part A. To assert the use of
the label “section 14”
as conclusive of the nature of the dispute is
to elevate form over substance. |
| [57] | In these circumstances, to
describe the dispute as relating to the statutory organisational rights
conferred by Part A, is to lose
sight of the true nature of the dispute between
NUMSA and Bader Bop. In my view, the real dispute between the parties was
whether
NUMSA was entitled to obtain organisational rights outside of the ambit
of Part A of Chapter III. It now remains to consider the
issues that flow from
this dispute. |
Issues to be decided
| [58] | The issues that fall to be
decided therefore are: |
(a) Whether NUMSA is entitled to obtain the organisational rights outside of
Part A of Chapter III.
(b) If so, whether NUMSA can resort to a strike in the pursuit of those
rights;
(c) Whether such a strike is limited by
section 65(1)(c); and
(d) Whether section 21 provides an exclusive mechanism for the enforcement of
organisational rights, including those that fall outside
Part
A.
(a) Is an unrepresentative union entitled
to obtain organisational rights outside of Part A of Chapter III?
| [59] | Section 4 of Chapter II of
the LRA confers on workers the right to join a trade union of their choice.
This right comprehends the
other rights associated with it such as the right to
elect trade union representatives; the right to be represented by such
representatives
at disciplinary enquiries; the right to organise; and the right
to bargain collectively to obtain these rights. |
| [60] | Part A of Chapter III
confers organisational rights upon representative unions as defined in that
Part. The effect of this is that
representative unions are entitled as of right
to these organisational rights – they need not bargain for them. But the
extent
of their entitlement again depends on whether the union concerned is a
majority union or a sufficiently representative union. The
question which
arises is whether by conferring these rights on the representative unions, the
LRA intended to deny them to unrepresentative
unions. This is essentially a
matter of construction. |
| [61] | In construing Part A it is
necessary to have regard to the Constitution, the primary objects of the LRA, as
well as its relevant provisions
and the ILO
Conventions.[44] The Constitution
guarantees to every worker the right “to form and join a trade
union”[45]; and the right
“to participate in the activities and programmes of a trade
union”.[46] To every trade
union, the Constitution guarantees the right to
organise[47] and to bargain
collectively.[48] The LRA gives
effect to these constitutional rights in section
4.[49] One of the declared primary
objects of the LRA is “to provide a framework within which employees and
their trade unions, employers
and employers’ organisations can . . .
collectively bargain to determine . . . matters of mutual
interest”.[50] The ILO
Conventions: Freedom of Association and Protection of the Right to Organise
(Convention 87 of 1948) and the Right to Organise
and Collective Bargaining
(Convention 98 of 1949) recognise these rights. Both were ratified by South
Africa on 19 February 1996. |
| [62] | In my view, Part A does not
preclude an unrepresentative union from obtaining organisational rights if this
part is properly construed
in the light of section 23 of the Constitution,
section 4 of the LRA and the ILO Conventions. Neither does the LRA. On the
contrary,
Part A and in particular section 20, supports the conclusion that the
intention of Part A is not to deny organisational rights to
unrepresentative
unions by expressly conferring such rights on representative
unions.[51] |
| [63] | Section 20 provides that
nothing in Part A must be construed as precluding a collective agreement that
regulates organisational rights.
Section 21(3) and (4) contemplate that the
employer and the representative union will conclude a collective agreement,
presumably
to regulate the exercise of the organisational rights. If section 20
is construed to refer to a collective bargaining agreement
contemplated in
section 21, it is superfluous. But the section has a meaning if it is construed
to refer to agreements conducted
outside the ambit of Part A’s statutory
rights. |
| [64] | Section 20 permits
representative unions to regulate organisational rights outside of the ambit of
Part A. It permits the modification
of those rights by way of agreement but
subject to limitations imposed, such as those to be found in section 18. The
section is
silent on collective agreements with unrepresentative unions. The
LRA does not prohibit these agreements either. There is therefore
nothing to
preclude an agreement with an unrepresentative union which confers
organisational rights on it – provided such agreement
does not prevent the
exercise of statutory organisational rights by a representative union. Thus
construed section 20 refers to
agreement outside the ambit of Part A. This
construction gives effect to the constitutional rights of unrepresentative
unions and
the workers conferred by section 23 of the Constitution as given
effect to by section 4 of the LRA. Moreover, this construction
gives effect to
the primary object of the LRA “to provide a framework within which
employees and their trade unions, employers
and employers’ organisations
can . . . collectively bargain to determine . . . other matters of mutual
interest”.[52] |
| [65] | I agree with the comment on
section 20 that: |
“The general intention behind the Act is that voluntarism (provided, at
any rate, that it is collective) should prevail over
state regulation. As a
result, the rights conferred by the Act are generally residual: they are
normally subordinate to arrangements
that the parties collective craft for
themselves and operate only in the absence of such an agreement (see, by way of
further support
for this proposition, s 21(3)). This section gives recognition
to this principle, not merely by expressly preserving the rights
of registered
unions and employers to conclude agreements that regulate organizational rights,
but also by impliedly permitting them
to prevail over the rights conferred by
part A. The section, in other words, impliedly serves to permit an extension,
modification,
waiver or complete renunciation of the statutory rights conferred
by this
part.[53]
After
observing that the section says nothing about collective agreements with
unregistered unions and that nothing in the LRA prohibits
their conclusion, the
author concludes that the agreement envisaged in section 20 can confer
organisational rights on an unrepresentative
union, but these rights
“cannot have the effect of depriving registered unions of the rights
conferred on them by the statute”.
| [66] | Part A therefore does not
preclude an unrepresentative union from obtaining organisational rights. Unlike
representative unions that
have these rights conferred on them by Part A and
therefore need not bargain for them, an unrepresentative union must bargain for
these rights. But can such a union embark upon strike action in support of its
claim to organisational rights? |
(b) Does an
unrepresentative union have a right to strike in the pursuit of its
organisational rights?
| [67] | The right to strike is
essential to the process of collective bargaining. It is what makes collective
bargaining work. It is to
the process of bargaining what an engine is to a
motor vehicle. Section 64(1) of the LRA confers this right upon every
worker.[54] The Constitution
guarantees this right to every worker in section
23(2)(c).[55] Once it is accepted
that an unrepresentative union has a right to bargain collectively to obtain
organisational rights, as it must
be, it must follow that it has the right to
resort to strike action in the pursuit of those rights. However, the strike
must comply
with the procedural requirements in section 64, namely, conciliation
and 48 hours notice. |
(c) Does section
65(1)(c) limit such right to strike?
| [68] | Limitations on the right to
strike are contained in section 65, which
provides: |
“(1) No person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or a
lock-out if
–
(a) that person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the issue in dispute;
(b) that person is bound by an agreement that requires the issue in dispute to
be referred to arbitration;
(c) the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of this
Act;
(d) that person is engaged in –
(i) an essential service; or
(ii) a maintenance service.” (Footnote omitted.)
| [69] | None of the limitations set
out in this section applies to a strike by an unrepresentative union. Section
65(1)(c) proscribes a strike
where a party has a right to refer the dispute to
arbitration or the Labour Court. That right must be derived from the LRA. The
LRA does not confer upon an unrepresentative union the right to refer the
dispute over organisational rights either to arbitration
or the Labour Court.
It follows that section 65(1)(c) does not limit the right to strike. The
section 65(2)(a) exception does not
apply either because the organisational
rights concerned fall outside the ambit of Part
A.[56] |
| [70] | The question whether such a
right to strike will be effective is, in my view, irrelevant to the question
whether there is a right
to strike. Whether a right to strike exists is a
question of law which must be determined by construing the relevant statutory
provision. |
(d) Does Part A provide an
exclusive platform for the attainment of organisational rights?
| [71] | Relying on the phrase
“any registered trade union” in section 21, Du Plessis AJA concludes
that all registered trade unions
that seek to exercise organisational rights
must use the procedure in section 21. This requires some qualification. A
registered
trade union that claims that it has the majority or sufficient
representation must use this procedure. However, a union that accepts
that it
is not a representative union as defined in the LRA, cannot use section 21. The
section is only available to enforce the
rights conferred by Part A and those
rights are conferred on representative unions – they are not conferred
upon unrepresentative
unions and they cannot therefore be enforced by such
unions through section 21. |
| [72] | Du Plessis AJA points out
certain anomalies that may arise if an unrepresentative union were to ignore the
provisions of Part A in
enforcing organisational rights. The first concerns the
inequality that will arise in the application of the LRA while the second
concerns the fact that the dispute resolution mechanism in subsections (8) and
(9) of section 21 will serve no purpose. The point
to be stressed here is one
already made, namely, that Part A provides a platform for the enforcement of
organisational rights conferred
on representative unions in Part A – it
has no application to organisational rights sought outside of Part
A. |
| [73] | As I understand the anomaly
relating to unequal application of the statute, it is said to arise because an
unrepresentative union
can seek organisational rights outside Part A, while
representative unions are required to seek those rights under Part A. In
dealing
with section 20, I have indicated that that section allows both
unrepresentative and representative unions to conclude collective
agreements to
regulate organisational rights outside of Part A. To that extent therefore,
both unions enjoy the same rights. |
| [74] | Nor does the fact that
representative unions have to go through section 21 of Part A while
unrepresentative unions do not, result
in an unequal treatment of representative
unions. Part A confers organisational rights on representative unions, and they
are thus
relieved of the onerous duty to bargain for those rights. They are
entitled to those rights as of right if they meet the threshold
representation
required. By contrast, these rights are not conferred upon unrepresentative
unions. To obtain them, they must bargain
for them. These two groups of unions
are therefore not similarly situated so as to require similar
treatment. |
| [75] | Moreover, both groups of
unions are not hit by section 65(1)(c). Representative unions are exempted
because section 65(2)(a) provides
as such. Unrepresentative unions are exempted
because the LRA does not give them the right to refer the dispute either to
arbitration
or to the Labour Court. The LRA does not confer organisational
right on unrepresentative unions. There is no provision for their
enforcement
in the LRA. That being the case, the union need only submit the dispute
relating to such rights for conciliation and,
if conciliation fails, the union
would be entitled to call a strike on requisite
notice. |
Conclusion
| [76] | I conclude therefore that
NUMSA was entitled to: (a) seek organisational rights relating to shop stewards
outside the ambit of Part
A of Chapter III of the LRA and (b) embark upon strike
action in the pursuit of such organisational rights. In the result I concur
in
the order which O’Regan J proposes in her
judgment. |
For the applicants: MSM Brassey SC and NH Maenetje, instructed by Cheadle
Thomson and Haysom Inc, Johannesburg.
For the first respondent: JG Grogan,
instructed by RC Futter Attorneys, Port Elizabeth and Knobel & Meyburgh
Attorneys, Johannesburg.
For the second respondent: Q Pelser SC and E Seima, instructed by the State
Attorney, Johannesburg.
[1] In the case of National
Education, Health and Allied Workers Union v University of Cape Town and
Others Case No CCT 2/02, as yet unreported judgment of this Court dated 6
December 2002.
[2] Directions were given on 6 May
2002.
[3] Above n 1.
[4] Section 12 of the Act provides as
follows:
“Trade union access to
workplace
(1) Any office-bearer or official of a representative trade union is entitled to
enter the employer’s premises in order to
recruit members or communicate
with members, or otherwise serve members interests.
(2) A representative trade union is entitled to hold meetings with employees
outside their working hours at the employer’s
premises.
(3) The members of a representative trade union are entitled to vote at the
employer’s premises in any election or ballot contemplated
in the trade
union’s constitution.
(4) The rights conferred by this section are subject to any conditions as to
time and place that are reasonable and necessary to
safeguard life or property
or to prevent the undue disruption of
work.”
[5] Section 13 of the Act provides as
follows:
“Deduction of trade union subscriptions or
levies
(1) Any employee who is a member of a representative trade union may authorise
the employer in writing to deduct subscriptions or
levies payable to that trade
union from the employee’s wages.
(2) An employer who receives an authorisation in terms of subsection (1) must
begin making the authorised deduction as soon as possible
and must remit the
amount deducted to the representative trade union by not later than the 15th day
of the month first following
the date each deduction was made.
(3) An employee may revoke an authorisation given in terms of subsection (1) by
giving the employer and the representative trade
union one month’s written
notice or, if the employee works in the public service, three months’
written notice.
(4) An employer who receives a notice in terms of subsection (3) must continue
to make the authorised deduction until the notice
period has expired and then
must stop making the deduction.
(5) With each monthly remittance, the employer must give the representative
trade union –
(a) a list of the
names of every member from whose wages the employer has made the deductions that
are included in the remittance;
(b) details of the amounts deducted and remitted and the period to which the
deductions relate; and
(c) a copy of every notice of revocation in terms of subsection
(3).”
[6] Section 14 of the Act provides as
follows:
“Trade union
representatives
(1) In this section, ‘representative trade union’ means a registered
trade union, or two or more registered trade unions
acting jointly, that have as
members the majority of the employees employed by an employer in a
workplace.
(2) In any workplace in which at least 10 members of a representative trade
union are employed, those members are entitled to elect
from among themselves
–
(a) if there are 10 members of
the trade union employed in the workplace, one trade union representative;
(b) if there are more than 10 members of the trade union employed in the
workplace, two trade union representatives;
(c) if there are more than 50 members of the trade union employed in the
workplace, two trade union representatives for the first
50 members, plus a
further one trade union representative for every additional 50 members up to a
maximum of seven trade union representatives.
(d) if there are more than 300 members of the trade union employed in the
workplace, seven trade union representatives for the first
300 members, plus one
additional trade union representative for every 100 additional members up to a
maximum of 10 trade union representatives;
(e) if there are more than 600 members of the trade union employed in the
workplace, 10 trade union representatives for the first
600 members, plus one
additional trade union representative for every 200 additional members up to a
maximum of 12 trade union representatives;
and
(f) if there are more than 1000 members of the trade union employed in the
workplace, 12 trade union representatives for the first
1000 members, plus one
additional trade union representative for every 500 additional members up to a
maximum of 20 trade union representatives.
(3) The constitution of the representative trade union governs the nomination,
election, term of office and removal from office of
a trade union
representative.
(4) A trade union representative has the right to perform the following
functions –
(a) at the request of
an employee in the workplace, to assist and represent the employee in grievance
and disciplinary proceedings;
(b) to monitor the employer’s compliance with the workplace-related
provisions of this Act, any law regulating terms and conditions
of employment
and any collective agreement binding on the employer;
(c) to report any alleged contravention of the workplace-related provisions
of this Act, any law regulating terms and conditions of
employment and any
collective agreement binding on the employer to –
(i) the employer;
(ii) the representative trade union; and
(iii) any responsible authority or agency; and
(d) to perform any other function agreed to between the representative trade
union and the employer.
(5) Subject to reasonable conditions, a trade union representative is entitled
to take reasonable time off with pay during working
hours
–
(a) to perform the functions of
a trade union representative; and
(b) to be trained in any subject relevant to the performance of the functions
of a trade union representative.”
[7] Section 15 of the Act provides as
follows:
“Leave for trade union
activities
(1) An employee who is an office-bearer of a representative trade union, or of a
federation of trade unions to which the representative
trade union is
affiliated, is entitled to take reasonable leave during working hours for the
purpose of performing the functions
of that office.
(2) The representative trade union and the employer may agree to the number of
days of leave, the number of days of paid leave and
the conditions attached to
any leave.
(3) An arbitration award in terms of section 21(7) regulating any of the matters
referred to in subsection (2) remains in force for
12 months from the date of
the award.”
[8] Section 16 of the Act provides as
follows:
“Disclosure of
information
(1) For the purposes of this section, ‘representative trade union’
means a registered trade union, or two or more registered
trade unions acting
jointly, that have as members the majority of the employees employed by an
employer in a workplace.
(2) Subject to subsection (5), an employer must disclose to a trade union
representative all relevant information that will allow
the trade union
representative to perform effectively the functions referred to in section
14(4).
(3) Subject to subsection (5), whenever an employer is consulting or bargaining
with a representative trade union, the employer must
disclose to the
representative trade union all relevant information that will allow the
representative trade union to engage effectively
in consultation or collective
bargaining.
(4) The employer must notify the trade union representative or the
representative trade union in writing if any information disclosed
in terms of
subsection (2) or (3) is confidential.
(5) An employer is not required to disclose information
–
(a) that is legally
privileged;
(b) that the employer cannot disclose without contravening a prohibition
imposed on the employer by any law or order of any court;
(c) that is confidential and, if disclosed, may cause substantial harm to an
employee or the employer; or
(d) that is private personal information relating to an employee, unless that
employee consents to the disclosure of that information.
(6) If there is a dispute about what information is required to be disclosed in
terms of this section, any party to the dispute may
refer the dispute in writing
to the Commission.
(7) The party who refers the dispute to the Commission must satisfy it that a
copy of the referral has been served on all the other
parties to the
dispute.
(8) The Commission must attempt to resolve the dispute through conciliation.
(9) If the dispute remains unresolved, any party to the dispute may request that
the dispute be resolved through arbitration.
(10) In any dispute about the disclosure of information contemplated in
subsection (6), the commissioner must first decide whether
or not the
information is relevant.
(11) If the commissioner decides that the information is relevant and if it is
information contemplated in subsection (5)(c) or (d),
the commissioner must
balance the harm that the disclosure is likely to cause to an employee or
employer against the harm that the
failure to disclose the information is likely
to cause to the ability of a trade union representative to perform effectively
the
functions referred to in section 14(4) or the ability of a representative
trade union to engage effectively in consultation or collective
bargaining.
(12) If the commissioner decides that the balance of harm favours the disclosure
of the information, the commissioner may order the
disclosure of the information
on terms designed to limit the harm likely to be caused to the employee or
employer.
(13) When making an order in terms of subsection (12), the commissioner must
take into account any breach of confidentiality in respect
of information
disclosed in terms of this section at that workplace and may refuse to order the
disclosure of the information or
any other confidential information which might
otherwise be disclosed for a period specified in the arbitration award.
(14) In any dispute about an alleged breach of confidentiality, the commissioner
may order that the right to disclosure of information
in that workplace be
withdrawn for a period specified in the arbitration
award.”
[9] Section 11 of the Act. The Act
contains no further definition of the meaning of “sufficiently
representative”. However,
section 18 of the Act does permit a majority
trade union to enter into a collective agreement with an employer to provide a
specific
threshold for the exercise of these rights. See further discussion
below at para 38.
[10] Section 14(1) of the Act.
[11] Fredericks and Others v MEC
for Education and Training, Eastern Cape and Others [2001] ZACC 6; 2002 (2) SA 693 (CC);
2002 (2) BCLR 113 (CC) at para 11.
[12] See, for example, MEC for
Development Planning and Local Government, Gauteng v Democratic Party and
Others [1998] ZACC 9; 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 (CC) at para 32; S v
Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12; Fraser v
Naude and Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) at para 10;
Islamic Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3; 2002 (4) SA 294 (CC); 2002 (5) BCLR 433 (CC) at paras 15-9; Khumalo and
Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 10;
and Minister of Health and Others v Treatment Action Campaign and Others
(1) [2002] ZACC 16; 2002 (5) SA 703 (CC) (appeal against interim execution order) at para
8.
[13] Khumalo v Holomisa, id
at para 14.
[14] See Fraser v Naude,
above n 12 at para 10; and Minister of Health v Treatment Action
Campaign, above n 12 at para 10.
[15] For the reasons given in
Kem-Lin Fashions v Brunton and Another 2002 (7) BLLR 597 (LAC).
[16] See Carmichele v Minister of
Safety and Security and Another [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995
(CC) at paras 50-60.
[17] “21. Exercise of
rights conferred by this Part
(1) Any registered trade union may notify an employer in writing that it seeks
to exercise one or more of the rights conferred by
this Part in a workplace.
(2) The notice referred to in subsection (1) must be accompanied by a certified
copy of the trade union’s certificate of registration
and must specify
–
(a) the workplace in respect of which the trade union seeks to exercise the
rights;
(b) the representativeness of the trade union in that workplace, and the facts
relied upon to demonstrate that it is a representative
trade union; and
(c) the rights that the trade union seeks to exercise and the manner in which it
seeks to exercise those
rights.
(3) Within 30 days of receiving the notice, the employer must meet the
registered trade union and endeavour to conclude a collective
agreement as to
the manner in which the trade union will exercise the rights in respect of that
workplace.
(4) If a collective agreement is not concluded, either the registered trade
union or the employer may refer the dispute in writing
to the Commission.
(5) The party who refers the dispute to the Commission must satisfy it that a
copy of the referral has been served on the other party
to the dispute.
(6) The Commission must appoint a commissioner to attempt to resolve the dispute
through conciliation.
(7) If the dispute remains unresolved, either party to the dispute may request
that the dispute be resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered trade union
is a representative trade union, the commissioner
–
(a) must seek –
(i) to minimise
the proliferation of trade union representation in a single workplace and, where
possible, to encourage a system of
representative trade union in a workplace;
and
(ii) to minimise the financial and administrative burden of requiring an
employer to grant organisational rights to more than one
registered trade
union;
(b) must consider –
(i) the
nature of the workplace;
(ii) the nature of the one or more organisational rights that the registered
trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is situated; and
(iv) the organisational history at the workplace or any other workplace of
the employer; and
(c) may withdraw any of the organisational rights conferred by this Part and
which are exercised by any other registered trade union
in respect of that
workplace, if that other trade union has ceased to be a representative trade
union.
(9) In order to determine the membership or support of the registered trade
union, the commissioner may
–
(a) make any necessary inquiries;
(b) where appropriate, conduct a ballot of the relevant employees; and
(c) take into account any other relevant
information.
(10) The employer must co-operate with the commissioner when the commissioner
acts in terms of subsection (9), and must make available
to the commissioner any
information and facilities that are reasonably necessary for the purposes of
that subsection.
(11) An employer who alleges that a trade union is no longer a representative
trade union may apply to the Commission to withdraw
any of the organisational
rights conferred by this Part, in which case the provisions of subsections (5)
to (10) apply, read with
the changes required by the
context.”
[18] See Ceramic Industries Ltd
t/a Betta Sanitary Ware v National Construction Building and Allied Workers
Union (2) (1997) 18 ILJ 671 (LAC) at 675 C-D per Froneman DJP.
[19] In his judgment in the LAC,
Zondo JP pointed to two anomalies in section 65(2)(b). The first relates to the
fact that it is only
a union which is barred for a period of twelve months from
the notice of a strike from referring an organisational rights dispute
to
arbitration; and secondly, the fact that an employer can, arguably, defeat the
union’s right to strike as conferred by section
65(2)(b). See Baderbop
(Pty) Ltd v NUMSA and Others 2002 (2) BLLR 139 (LAC). Neither of these
issues arises for consideration in this case.
[20] Although the Act refers to
section 27 of the interim Constitution, for the purposes of interpretation of
the Act, that should be
read to refer to section 23 of the 1996
Constitution.
[21] See South African National
Defence Union v Minister of Defence and Another [1999] ZACC 7; 1999 (4) SA 469 (CC); 1999
(6) BCLR 615 (CC) at para 25.
[22] See also the Workers’
Representatives Convention, 1971 (No. 135) and the Collective Bargaining
Convention, 1981 (No. 154).
[23] Both were ratified on 19
February 1996.
[24] A useful account of the
observations and surveys of the Committee of Experts on issues relating to
freedom of association is to be
found in the ILO publication: Freedom of
Association and Collective Bargaining: General Survey by the Committee of
Experts on the Application of Conventions and
Recommendations (ILO, Geneva
1983).
[25] See Valticos and Von Potobsky
International Labour Law 2nd (revised) ed (Kluwer, Deventer 1995) at 284,
para 658.
[26] A digest of these decisions is
published. See Freedom of Association: Digest of decisions and principles of
the Freedom of Association Committee of the Governing Body of the ILO 4th
(revised) ed (ILO, Geneva 1996).
[27] See para 141 of the General
Survey, above n 24; and the Digest, id at paras 310, 313 and chapter
4 generally. See also WB Creighton “Freedom of Association” in R
Blanpain (ed) Comparative Labour Law and Industrial Relations in
Industrialised Market Economies vol 2 4th (revised) ed (Kluwer, Deventer
1990) at 36.
[28] See the General Survey,
above n 24 at para 200; and the Digest, above n 26 at paras 473-6. The
right to strike is expressly protected by Article 8 of the International
Covenant on Economic, Social
and Cultural Rights.
[29] See the General Survey,
above n 24 at para 214.
[30] Id at paras
219-21.
[31] Section
18 provides: “Everyone has the right to freedom of association.”
[32] 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 NO and
Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at paras 22-3. See
also De Lange v Smuts NO and Others [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR
779 (CC) at para 85.
[33] The full text of section 21 is
provided above n 17.
[34] Section 18 of the Act provides
as follows:
“Right to establish thresholds of
representativeness
(1) An employer and a registered trade union whose members are a majority of the
employees employed by that employer in a workplace,
or the parties to a
bargaining council, may conclude a collective agreement establishing a threshold
of representativeness required
in respect of one or more of the organisational
rights referred to in sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is not binding
unless the thresholds of representativeness in the
collective agreement are
applied equally to any registered trade union seeking any of the organisational
rights referred to in that
subsection.”
[35] A “collective
agreement” is defined in s 213 of the Act as follows:
“‘collective agreement’ means 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 –
(a) one or more employers;
(b) one or more registered employers’ organisations; or
(c) one or more employers and one or more registered employers’
organisations”.
[36] See section 134 of the Act.
[37] National Education, Health
and Allied Workers Union v University of Cape Town and Others, Case
No CCT 2/02, as yet unreported judgment of this Court dated 6 December 2002 at
para 14.
[38] Id at para 31.
[39] Coin Security Group (Pty)
Ltd v Adams and Others (2000) 21 ILJ 925 (LAC) at para 16; Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others
(1) (1998) 19 ILJ 260 (LAC) at 269G-H.
[40] Coin Security id at para
16.
[41] Fidelity Guards Holdings
(Pty) Ltd, above n 3 at 265B-E and 269H-I; compare also Mine Surface
Officials Association of South Africa v President of the Industrial Court and
Others (1987) 8 ILJ 51 at 59I-60E.
[42] NTE Ltd v Ngubane and
Others (1992) 13 ILJ 910 (LAC) at 920J-921A.
[43] Section 20 is discussed more
fully at paras 63-6.
[44] The LRA must be construed in
the light of these instruments because section 3 requires
that:
“Any person applying this Act must interpret its provisions –
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the
Republic.”
[45] Section 23(2)(a).
[46] Section 23(2)(b).
[47] Section 23(4)(b).
[48] Section 23(5).
[49] Section 4
provides:
“(1) Every employee has the right
–
(a) to participate in forming a trade union
or federation of trade unions; and
(b) to join a trade union, subject to its
constitution.
(2) Every member of a trade union has the right, subject to the constitution of
that trade union –
(a) to participate in its lawful
activities;
(b) to participate in the election of
any of its office-bearers, officials or trade union representatives;
(c) to stand for election and be eligible for appointment as an office-bearer
or official and, if elected or appointed, to hold office;
and
(d) to stand for election and be eligible for appointment as a trade union
representative and, if elected or appointed, to carry out
the functions of a
trade union representative in terms of this Act or any collective agreement.
(3) Every member of a trade union that is a member of a federation of trade
unions has the right, subject to the constitution of
that federation –
(a) to participate in its lawful
activities;
(b) to participate in the
election of any of its office-bearers or officials; and
(c) to stand for election and be eligible for appointment as an office-bearer
or official and, if elected or appointed, to hold office.”
[50] Section 1(c)
provides:
“The purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by fulfilling the
primary objects of this Act, which are –
. . . .
(c) to provide a framework within which employees and their trade unions,
employers and employers’ organisations can
–
(i) collectively bargain to
determine wages, terms and conditions of employment and other matters of mutual
interest; and
(ii) formulate industrial policy;” (footnote omitted).
[51] Section 20
provides:
“Nothing in this Part precludes the conclusion of a collective agreement
that regulates organisational
rights.”
[52] Section 1(c) of the LRA.
[53] Brassey “Commentary on
the Labour Relations Act” (1999) Vol 3 (Juta, Cape Town) A3: 26.
[54] Section 64(1)
provides:
“(1) Every employee has the right to strike and every employer has
recourse to lock-out if –
(a) the
issue in dispute has been referred to a council or to the Commission as required
by this Act, and –
(i) a certificate stating that the dispute remains unresolved has been
issued; or
(ii) a period of 30 days, or any extension of that period agreed to between
the parties to the dispute, has elapsed since the referral
was received by the
council or the Commission; and after that –
(b) in the case of a proposed strike, at least 48 hours’ notice of the
commencement of the strike, in writing, has been given
to the employer, unless
–
(i) the issue in dispute relates to a collective agreement to be concluded in
a council, in which case, notice must have been given
to that council; or
(ii) the employer is a member of an employers’ organisation that is a
party to the dispute, in which case, notice must have
been given to that
employers’ organisation; or
(c) in the case of a proposed lock-out, at least 48 hours’ notice of
the commencement of the lock-out, in writing, has been
given to any trade union
that is a party to the dispute, or, if there is no such trade union, to the
employees, unless the issue
in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been given to that
council;
or
(d) in the case of a proposed strike or lock-out where the State is the
employer, at least seven days’ notice of the commencement
of the strike or
lock-out has been given to the parties contemplated in paragraphs (b) and
(c).”
[55] Section 23(2)(c)
provides:
“Every worker has the right –
. . . .
(c) to strike.”
[56] Section 65(2)(a) provides:
“Despite section 65(1)(c), a person may take part in a strike or a
lock-out or in any conduct in contemplation or in furtherance
of a strike or
lock-out if the issue in dispute is about any matter dealt with in sections 12
to 15.”
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