Three gold mines are members of an organisation of employers, the Chamber of Mines of SA, and collective agreements have been concluded centrally with at least three trade unions who represent the majority of employees in all those mines. Agreements are extended across the three gold mines and all their mining operations. In other words an umbrella has been created which forms one large workplace. This structure enables the Chamber to prevent minority trade unions such as AMCU from striking in support of its demands.
Labour Justice Cele held that the wage agreement concluded by the Chamber had been extended in term of sec 23(1)(d) of the LRA on a ‘per employer basis, which, in my view, is clearly permissible’. The Chamber was granted an interim interdict having shown the existence of a prima facie right, that irreparable harm would be caused to its members and that the balance of convenience favours the granting of relief in the absence of any satisfactory alternative remedy.
Saflii have kindly made the judgment freely available and click here to read it in full: Chamber of Mines of SA v AMCU 30.01.2014 case J99/14 per Cele J
Extracts from the judgment of Cele J
[36] The workplace, according to the respondents is simply the area where the organisational rights are to be exercised. It was conceded though that the greatest difficulty in defining a workplace arises in the context of a business which operates at different sites or has different divisions. Different operations where employees work independently of one another are contemplated as constituting a workplace. The respondents contend that such independence may be established with reference to one or more of the criteria of size, function or organization. Indeed these criteria are not defined and must be interpreted with reference to a specific organization.
[37] Yet, with reference to the companies represented by the Chamber, a common thread appears to run through each in that each company has various mining operations, all of which are involved in the production of gold where mining licences are held by the company and not by individual mines. Each company is tightly controlled from a head office or corporate office, with the structure of the management portfolios reflecting how the company is managed overall. Financial and production planning, including the setting of production targets and staff levels, occurs at head office-level. Financial management is dealt with centrally and this includes the management of debtors and creditors, and the receipt of income.
[38] Centralised shared or support services are provided to the operations for example, human resources, and IT systems. Procurement is managed centrally, with the mines not procuring their own goods and services. Each mine is run by a General Manager who reports into head office and is subject to overarching company policies and controls. Operating procedures, mining methodologies, and plant processes are standardised across each company. Security systems and IT systems are standardised across the company. All assets are owned by the company, with movable assets being transferred between the operations. All gold production is sold to Rand Refinery on a total production basis, not per mine. Recruitment of personnel is run centrally. All employees are employed directly by the company, and may be transferred between operations. Employee remuneration is managed centrally. Human resources policies are standardised across the company.
[39] Collective bargaining has for many years been taking place at a centralised-level, with limited bargaining, typically over work practices occurring at mine-level. Organisational rights are granted on a company-wide basis by AGA. Sibanye grants organisational rights on a per operation basis subject to an overarching company policy and subject to collective bargaining occurring centrally. Harmony has granted organisational rights at mine-level, but the agreements also require collective bargaining to take place centrally.
[40] Accordingly, I find that the applicant succeeded in proving that the various operations or mines making up Harmony, AGA and Sibanye constitute a single workplace. The respondents did not effectively dispute that NUM, Solidarity and UASA in conjunction with each other had majority representation within the Harmony, AGA and Sibanye workplace, as now determined, at the time of the conclusion of the wage agreement. Only a bold denial statement was made which carried less evidential weight against the detailed explanation of the applicant. From the figures given by the applicant NUM was the majority union which, in conjunction with Solidarity and UASA formed an even larger majority. Unlike in [Transnet SOC Ltd v National Transport Movement and Others [2014] 1 BLLR 98 (LC)] this was not the ganging up of the minority unions against one union. The majoritarian principle should accordingly carry the day in a democratic collective bargaining exercise.
[41] The respondents have raised an important constitutional issue of the right of the employees, being members of AMCU, to strike, to collectively bargain and a right to freedom of association. Section 23 (1) (d) was said not to expressly permit the limitation of the right to strike of non-parties to the collective agreement. It was contended furthermore, that it was clear from the text of section 23 (1) (d) (iii) that the section was intended to apply to the workplace of an individual employer and not to employers acting collectively. The respondents submitted that the words “the employer in the workplace” clearly demonstrate that the reach of the provision did not extend to permit the conclusion of collective agreements by more than one employer jointly as the applicant has purported to have done in this instance. The submission was that the words “that person is bound by a collective agreement” in s 65 (1) (a) must be interpreted restrictively to be limited to the parties to that collective agreement. The further submission was that the Act and particularly the provisions of section 23(1) (d) read with section 65 (1) (a) & (b) must be read restrictively and in a manner which is consistent with the Bill of Rights. I concur with these meritorious submissions.
[42] The effect of the collective agreement being assailed by the respondents needs then to be considered. In doing so, the constitutional right of the employer to engage in collective bargaining should similarly be upheld. As already pointed out earlier, Sibanye, AGA and Harmony currently recognise 4 unions for the purposes of collective bargaining, namely NUM, AMCU, UASA and Solidarity. The collective agreement binds each company, individually, with each of the unions. Put differently, the pulling out of one of the companies, for instance due to liquidation, would not affect the legality and validity of the collective agreement. Seen in that light, each company has entered into a collective agreement with each of the unions, without the other company or companies lending legality or efficacy to the collective agreement, in the same manner as a federation could represent a group of unions. Accordingly, the provisions of section 23(1) (d) read with section 65 (1) (a) and (b) are applicable in this matter, without violating the meaning of the words “the employer in the workplace”. In any event, a registered employers’ organisation is expressly referred to in section 23 (1) (c) of the Act as a possible party to a collective agreement.
[43] In Mzeku and Others v Volkswagen SA (Pty) Ltd and Others [2001] 8 BLLR 857 (LAC), the LAC found that, in terms of section 23 (1) (d), a majority union can conclude a collective agreement that is binding even on employees who are not its members. What remains clear is that section 23 (1) (d) of the Act can be extended only to the employees who are not parties to the collective agreement. It may not lawfully be extended to the employers. It is, inter alia, in this respect that section 23 (1) (d) differs from section 32 of the same Act. The submission by the respondents that sector level collective agreements may only be extended to non-parties by the Minister of Labour, in terms of section 32 of the Act, after the majority parties in the sector have established a Bargaining Council for the sector and area in terms of Part C to the Act, has nothing to do with the extension of collective agreements in terms of section 23 (1) (d) of the Act. The submission that the applicant is purporting to by-pass the legislative scheme for the promotion of Sectoral collective bargaining by concluding an agreement between itself and the three unions and then to extend it to non-parties in the sector is far from the truth.
[44] The constitutional right of employees to strike in this matter must not be seen in isolation from the right of the members of NUM, Solidarity and UASA to collectively bargain with their employers. Accepting that NUM, Solidarity and UASA represented the majority of the employees in the workplace, it would be constitutional to allow the democratic process of the majoritarian representation to prevail. If the minority employees represented at the workplace by AMCU were to succeed and have a new wage agreement to come about and to supplant the existing collective agreement, the minorities would be governing for the majority in the workplace. That result is certainly undesirable. Clearly therefore the submissions by the respondents are untenable.