SACOSWU v POPCRU & others (LAC JA87/2015, judgment 31 May 2017)

Principle:

The LRA does not prohibit bargaining with a minority union, nor does the employer breach an existing s18(1) collective threshold agreement by doing so.

Facts:

POPCRU concluded an agreement establishing representation thresholds with the Department of Correctional Services (DCS) for the acquisition of s 12, 13 and 15 organisational rights by minority trade unions in the workplace. Thereafter the DCS concluded a collective agreement with the appellant, SACOSWU, a minority union which had not attained the stipulated representativeness threshold, granting to the union stop order facilities for a limited period and the right to represent members in grievance and disciplinary proceedings. POPCRU referred a dispute concerning the interpretation and application of its collective agreement with the DCS to the GPSSBC for conciliation and then arbitration. The arbitrator dismissed POPCRU's application.

On review, the Labour Court (POPCRU v Ledwaba NO & others (JR 636/2012) [2013] ZALCJHB 244 (5 September 2013)) found that the arbitrator's reliance on theBader Bop decision constituted an error of law because in that matter no threshold agreement applied. Since the agreed threshold had not been achieved by SACOSWU, the Court found that the DCS was not entitled to conclude a collective agreement with SACOSWU. The award of the arbitrator was set aside and substituted with an order declaring the SACOSWU collective agreement invalid and setting it aside. The court declared that SACOSWU was not entitled to exercise organisational rights in the DCS or conclude a collective agreement with the DCS until the agreed representation threshold had been achieved.

On appeal to the LAC the decision of the Labour Court was set aside on the basis that s 20 of the LRA provides that nothing in Part A of Chapter III, which must include a s 18(1) threshold agreement, precludes the conclusion of a collective agreement that regulates organisational rights. This accords with the recognition that minority unions are entitled to have access to the workplace so as to challenge the hegemony of majority unions, at least to represent their members. On the same basis, the deduction of trade union subscriptions for a limited period was permissible. The appeal was consequently upheld.

Extract from the judgment:

Savage JA

[1]   This appeal is concerned with whether an employer is precluded from according certain limited organisational rights to a minority union when it falls short of the representation threshold agreed between the employer and a majority trade union in the workplace in terms of s18(1) of the Labour Relations Act 66 of 1995 (LRA). In a dispute concerning the interpretation and application of the applicable threshold agreement, the third employer (the arbitrator) found that the employer was entitled by virtue of s20 to enter into a collective agreement with a minority union in spite of a representation threshold having been agreed in terms of s18(1). On review, the Labour Court (Snyman AJ) set aside the arbitration award on the basis that the threshold agreement was binding on the employer and the s20 agreement with the minority union was declared invalid and unenforceable.

.....................

[22]   On 19 February 1996, South Africa ratified both ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise8 and Convention No. 98 on the Right to Organise and Collective Bargaining. The ratification of these conventions accords with the s18 right of freedom of association in our Constitution, and the right to fair labour practices in s23, which includes the right of employees to form and join trade unions, to strike and the right of trade unions, employers and employers' organisations to bargain collectively.

[23]   The ILO relies on two supervisory bodies to implement the two Conventions: the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association (CFA). These bodies take the view that the majoritarian system is compatible with freedom of association, provided that minority unions are not prevented from functioning, from making representations on behalf of their members, and representing members in individual grievance disputes. The CFA recognises that while it is generally to the advantage of workers and employers to avoid the proliferation of competing unions, a monopoly imposed by law is at variance with the principle of freedom of association, with workers entitled to belong to other unions. A distinction in levels of representation should, the CFA has found, therefore not result in the most representative being granted privileges which extend beyond that of priority in representation, nor should they deprive minority unions of the essential means for defending the occupational interests of their members, organising their administration and activities and formulating their programmes. Furthermore, minority trade unions, who are denied the right to negotiate collectively, should be permitted to perform their activities so as at least to speak on behalf of their members and represent them in the case of an individual claim or grievance.

[24]   The legislative choice made in favour of majoritarianism and against the proliferation of trade unions in the workplace is evident in Part A of Chapter III of the LRA. While s11 defines a "representative trade union" for purposes of the Part as "a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace", s18(1) permits a trade union whose members are either a majority, or are parties to a bargaining council, to establish representativeness thresholds for the enjoyment of ss12, 13 and 15 organisational rights.

[25]   However, also in Part A, is s20 which provides that:

'Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights'.

[26]   Bader Bop was concerned with the right to strike in support of a minority union's demand for the recognition of shop stewards and the right to represent its members in disciplinary and grievance proceedings, in circumstances where no threshold agreement existed. In that matter, the Court rejected as "inappropriate" a narrow reading of section 20 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'.

[27]   While recognising that the rights conferred by Part A of Chapter III may be regulated by the collective agreements contemplated by section 21, the Court stated that s20 serves as -

'...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.'

[28]   The Court there also found that -

'...a majoritarian system can operate fairly only in accordance with certain conditions. It must allow minority unions to co-exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions.'

[29]   In Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (AMCU), in a challenge to the constitutionality of s23(1)(d), the Constitutional Court recognised majoritarianism as both a premise of and recurrent theme throughout the LRA. Reference was made to Kem-Lin Fashions CC v Brunton in which it was stated that the LRA reflected a policy choice that -

'...the will of the majority should prevail over that of the minority. This is good for orderly collective bargaining as well as for the democratisation of the workplace and sectors. A situation where the minority dictates to the majority is, quite obviously, untenable. But also a proliferation of trade unions in one workplace or in a sector should be discouraged. There are various provisions in the Act which support the legislative policy choice of majoritarianism.'

[30]   Yet, the Court in AMCU recognised that while the extension of collective agreements to non-parties under section 23(1)(d) gives enhanced power within a workplace to a majority union for powerful reasons that enhance employees' bargaining power through a single representative bargaining agent,majoritarianism is not "an implement of oppression" and -

'...does not entirely suppress minority unions. Its provisions give ample scope for minority unions to organise within the workforce - and to canvass support to challenge the hegemony of established unions'.

[31]   Part A of Chapter III expressly confers enforceable organisational rights on certain unions - unions that are either sufficiently representative (sections 12, 13 and 15) or majority unions (sections 14 and 16). These are enforceable rights and the mechanism for their enforcement is also provided for in Part A. There is however nothing in Part A of Chapter III -

'...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 "mutual interest" to employers and unions and as such matters capable of forming the subject matter of collective agreements...'

[32]   In finding the POPCRU threshold agreement in terms of s18(1) incompatible with the SACOSWU agreement, the Labour Court approached the matter on the basis that the threshold agreed by POPCRU and the DCS closed the door on any access to the workplace by SACOSWU, as a minority trade union. S18(1) provides that:

'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 thresholds of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15.'

[33]   It follows that the agreed threshold which may be the subject of a s18(1) agreement has the effect of giving meaning to what constitutes "sufficiently representative", as provided in s11, in order for a union to be conferred ss12, 13 and 15 organisational rights in a workplace. Where a union has achieved the threshold agreed by way of a s18(1) agreement, ss12, 13 and 15 rights will then as a matter of right be conferred on the union. However, as was made clear in Bader Bop, there is nothing in Part A of Chapter III which expressly states that unions which do not meet the required threshold are prevented from using the ordinary processes of, as is relevant for current purposes, collective bargaining to persuade the employer to grant such rights to the minority union.

[34]   Furthermore, since s20 provides that "nothing" in Part A precludes the conclusion of an agreement regulating organisational rights, on a plain reading of the provision "nothing" appears to me to mean nothing in the Part, including a s18(1) agreement. To find differently would amount to a narrow reading of s20, which Bader Bop found to be "inappropriate". This means that even where a s18(1) agreement exists, this does not preclude the conclusion of a s20 collective agreement between an employer and a minority union which has bargained for the rights contained in that agreement. Were s18(1) to be interpreted so as to bar the conclusion of such an agreement under s20, this would, as was cautioned in both Bader Bop and AMCU, serve to disregard the "internationally recognised rights of minority unions to seek to gain access to the workplace", to organise within the workforce or to canvass support to challenge the hegemony of established unions.

[35]   There is therefore merit in SACOSWU's contention that the minimum threshold agreed in a s18(1) agreement to obtain ss12, 13 or 15 organisational rights, establishes a minimum, which, once reached, permits the rights to be conferred by the employer on such a union with no need to bargain for them. Having regard to s20, and despite a s18(1) agreement having been concluded, a minority trade union is not barred from seeking to be granted ss12, 13 or 15 organisational rights and to conclude a collective agreement with the employer in order to record the grant of any such rights.

[36]   While s 23(1) provides that a collective agreement is binding on the parties to it, a threshold agreed by an employer obliges the employer to confer ss12, 13 and s15 rights upon a union which had achieved the threshold agreed in the s18(1) agreement. It does not bar the employer from bargaining collectively with a minority union which seeks to have any organisational rights conferred on it, nor does the existence of a s18(1) agreement oblige the employer to deprive a minority union of any such organisational rights.

[37]   That this is so is starkly highlighted by the issue of representation of members of minority unions in individual disciplinary or grievance proceedings. Since a majoritarian system can only operate fairly where a minority union is allowed to co-exist, including "...to represent members in relation to individual grievances", to deny an employee a choice and impose on him or her representation by a majority union, of which that employee is not a member, is conceivably contrary to and in breach of the employee's constitutional rights to freedom of association and to join a trade union and the right in s23(1) to fair labour practices.

[38]   An employer may determine whether it wants to bargain with a minority union, the extent to which it will do so and whether it will conclude a collective agreement with the minority union. This includes bargaining collectively on the grant of any organisational rights to that union. The LRA does not prohibit the bargaining with a minority union on such matters, nor does the employer breach an existing s18(1) collective threshold agreement in doing so. This is so, in that, the effect of the s18(1) threshold which has been agreed to, is to oblige the employer to confer ss12, 13 and 15 rights upon unions that had achieved that threshold, but not to constrain the employer's entitlement to bargain with those unions that have not.

[39]   It is so that the employer's election to bargain with the minority union in such circumstances may have consequence for the relationship with the majority union, and that such consequence may play out either in the course of the collective bargaining relationship, or through the exercise of other legal remedies. However, since the threshold agreement does not provide a bar to the conclusion of a s20 collective agreement with the minority union regarding ss12, 13 or 15 organisational rights, the existence of the threshold does not distinguish the matter from Bader Bop. This is so given the recognition that minority unions are entitled to co-exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions.'

[40]   It follows that the Labour Court erred in approaching the matter on the basis that s18 seeks to avoid the proliferation of minority trade unions in a workplace, through regulating the admission of trade unions to the bargaining relationship and that the provision would serve no purpose if s20 was permitted to override it. The admission of trade unions to the bargaining relationship at different levels involves the exercise of power as between the parties and the balancing of competing constitutional and other legal rights and obligations. An agreed threshold does not firmly bar a minority trade union from having access to the workplace. This is so given the recognition that the majoritarian system is compatible with the right to freedom of association, provided that minority unions are not prevented from functioning, making representations on behalf of their members, and representing members in individual grievance disputes. It follows that the s18(1) agreement was correctly interpreted by the arbitrator to permit the conclusion of the agreement with SACOSWU allowing the union s12 rights, in order to serve members' interests by representing employees in disciplinary and grievance proceedings. Having found this to be so, it is not necessary to deal with SACOSWU's contention that s14 provided a right to such representation, save to state that the union's reliance on that provision was misplaced in the circumstances of this matter.

[41]   Turning to the s13 right, to have subscriptions deducted for a limited period only, 36 by the time the matter came before the Labour Court the limited period, for which the deduction of union subscriptions had been sought, had elapsed. Nevertheless, the parties agreed that the issue was not moot insofar as the principle involved remained at stake.

[42]   The deduction of subscriptions is pivotal to the continued operation of a trade union. This includes a minority trade union, which when subscriptions are deducted, is placed in a position in which it may co-exist within the majoritarian system. The ILO has recognised the deduction of trade union subscriptions by employers as a matter which should be dealt with through collective bargaining between employers and trade unions.

[43]   SACOSWU sought the deduction by DCS of subscriptions from its members by the DCS for a limited period only. For the reasons stated previously, the DCS was not prevented from acceding to that request by virtue of the s18(1) agreement and permitting such subscriptions for the limited period sought, in accordance with the applicable international standards. To have refused such request would have unduly restricted the SACOSWU's right of access, as a minority union, to the workplace. The determination of the arbitrator in that regard cannot be faulted.

[44]   Turning to remedy, it fell to the arbitrator, in the interpretation of the s18(1) agreement, to determine whether that agreement barred the conclusion of an agreement with SACOSWU to exercise the rights sought by it, namely the right to represent its members in grievance and disciplinary proceedings and the right to have subscriptions deducted for a limited period. The material before the arbitrator was insufficient to warrant a conclusion that SACOSWU was entitled to exercise wider s12 to s16 organisational rights in the workplace. As much was conceded by counsel for both parties and to this extent only the arbitration award falls to be substituted with an appropriate order.

[45]   For all of the above reasons, the appeal must succeed. There is no reason in law or fairness why the costs of the appeal, including the costs of two counsel, should not follow the outcome.

Order

[46]   In the result, an order is made as follows:

  1. The appeal is upheld with costs, including the costs of two counsel.
  2. The orders of the Labour Court are set aside and replaced with the following order:

    1. 'Save for the substitution of the arbitration award as set out below, the application to review and set aside the arbitration award is dismissed:

    2. 'The collective agreement entered into with POPCRU in terms of section 18(1) of the LRA establishing representation thresholds for the exercise of organisational rights under s 12, s 13 and s 15 in the workplace of the Department of Correctional Services, does not prevent the Department from entering into a valid and enforceable collective agreement with SACOSWU in terms of s 20 to permit the union to represent its members at internal disciplinary and grievance proceedings in the workplace.'
    3. There is no order as to costs.'