Numsa v Anglo Gold Ashanti & another  11 BLLR 1128 (LC)
Where an employer consults with the recognized representative trade union(s) in terms of a collective agreement over the agreed retrenchment procedure, the employer is not obligated in law to consult with any other registered union whose members are likely to be affected or any individual employee over the retrenchment.
Section 189(1) of the LRA sets out who must be consulted in a pre-retrenchment consultation in a hierarchial format. The Act stipulates different categories including "any person whom the employer is required to consult in terms of a collective agreement" and "any registered trade union whose members are likely to be affected by the proposed dismissals".
The question arose in this case whether these categories include a minority union or not, in the context of a recruitment drive by NUMSA at AngloGold in 2015 and 2016. Despite its recruitment efforts, NUMSA had not secured recognition for the purpose of collective bargaining nor had it secured organisational rights, apart from stop-order facilities. During 2017 AngloGold sold the whole or part of its Kopanong mine to Village Main Reef Limited and the Moab Khutsong mine to Harmony Gold Mining Company. AngloGold issued an internal brief that the sale of these mines fell within the ambit of section 197 of the LRA (a business transfer as a 'going concern').
In a letter to NUMSA, AngloGold stated that during January 2018 NUMSA had 625 members, but following the sales of Kopanong and Moab Khutsong mines, NUMSA only had 40 members at Off-Mine Regional Services. AngloGold had concluded with each of the recognised trade unions (NUM, Solidarity, UASA and AMCU) an identical Labour Relations Recognition and Procedural Framework Agreement (Framework Agreement). Following a retrenchment consultation process, AngloGold dismissed several employees including members of NUM, Solidarity, AMCU, UASA and NUMSA. The retrenchment consultation was conducted with NUM, Solidarity, AMCU and UASA, but NUMSA was not invited to the consultation process. AngloGold's section 189(3) notice inviting consultation, was not sent to NUMSA.
NUMSA disputed that the Framework Agreements were collective agreements as envisaged by section 189(1)(a) of the LRA, and accordingly AngloGold was required in terms of section 198(1)(c) to consult with it as it is the registered trade union whose members are likely to be affected by the proposed dismissals. The employer's position was that several collective agreements contemplated by section 189(1)(a) had been concluded with each of the recognized trade unions (NUM, Solidarity, UASA and AMCU), and disputed that it had not complied with a fair procedure as it was not obliged in terms section 189(1)(c) to consult with NUMSA.
NUMSA approached the Labour Court for an order compelling AngloGold to permit NUMSA to participate fully in the consultation process. The Labour Court refused the application, holding that where an employer consults with the recognized representative trade union(s) in terms of a collective agreement over the agreed retrenchment procedure, the employer is not obliged to consult with any other union or any individual employee over the retrenchment.
This judgment is in line with the general recognition that collective agreements are the major way that obligations are created to regulate the workplace. Section 198(1) creates a hierarchy of rights - the obligation to consult any registered union whose members are likely to be affected in terms of s198(1)(c) only kicks in if there is no collective agreement or workplace forum in place. The judgment reinforces the principle that usually it is only the majority or recognised trade union(s) with whom an employer is obliged to consult.
Extract from the judgment:
 The issue is whether NUMSA should be included in the facilitated consultation process that is already underway between AngloGold and NUM, Solidarity, UASA as well as AMCU. AngloGold contends that it is under no obligation to consult with NUMSA by virtue of the hierarchical consultation process as set out in sections 189(1)(a) of the LRA. It is common cause that AngloGold concluded with each of the recognised trade unions namely, NUM, Solidarity, UASA and AMCU an identical Labour Relations Recognition and Procedural Framework Agreement (Framework Agreement). As a result, it argued that NUMSA, not being a consulting party, has no locus standi to bring this application.
 Section 189 provides as follows:
- 'When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-
- any person whom the employer is required to consult in terms of a collective agreement;
- if there is no collective agreement that requires consultation-
- a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and
- any registered trade union whose members are likely to be affected by the proposed dismissals;
- if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or
- if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.'
 Reference to some of the provisions of the collective agreements AngloGold sought to rely on that are relevant to this application is necessary. The parties agreed as follows:
'2.3. The Agreement will apply to the Parties and provide for mechanisms and infrastructure to enhance consultation, communication and negotiations between the parties on matters of mutual interest, subject to the confines as outlined in clauses 6.5 and 220.127.116.11. The purpose of this agreement is to create an inclusive Labour Relations Recognition and procedural framework for South Africa.' Clause 13 provides for the formation of the South African Regional Steering Committee (SARSC) composed of management and NUM, AMCU, UASA and Solidarity. Clause 14 sets out the term of reference of SARSC and it provides as follows:
'14.1. The South African Regional Steering Committee (SARSC) will provide a mechanism for management and unions to interact in a structured manner about matters that affect management and the union relations. Clause 20 provides for the retrenchment procedure and states as follows:
14.5. It will act as a consultative and advisory forum for the matters within the scope and mandate of management of South Africa.
14.6. It will seek to achieve consensus through joint problem solving, common goals and shared values.'
'The Company undertakes to follow procedure applicable in terms of the relevant sections of the Act should dismissals on account of Operational Requirements become necessary.' NUMSA referred this Court to Aunde South Africa (Pty) Ltd v NUMSA in which the LAC dealt with the hierarchy of consultation and stated as follows:
' Where an employer consults in terms of agreed procedures with the recognised representative trade union in terms of a collective agreement which requires the employer to consult with it over retrenchment, such an employer has no obligation in law to consult with any other union or any individual employee over the retrenchment. If such a consultation exercise culminated in a collective agreement that complies with the requirements of a valid collective agreement, all employees including those who are not members of the representative trade union that consulted with the employer are bound by the terms of such collective agreement irrespective of whether they were party to the consultation process or not. Thus, where an employer consults with the recognized representative trade union(s) in terms of a collective agreement over the agreed retrenchment procedure, such an employer is not obligated in law to consult with any other union or any individual employee over the retrenchment.
 It is apparent that the current matter is distinguishable from Aunde on facts. In Aunde, the appellant excluded the respondent, NUMSA, from consultations on the basis that NUMSA was no longer a union whose members formed the majority of the employees. As such it contended that it had no obligation to consult NUMSA in relation to the retrenchment exercise. In excluding NUMSA, the appellant relied on clause 4.1 and clause 16 which were summarised by the LAC as follows:
' Clause 4.1 that vaguely states that UASA is recognised as "the sole bargaining representative of the employees in the bargaining unit for all other work related plant level issues, including any need to consult as required by the LRA" should not be considered in isolation and out of context of the entire agreement. Of importance is clause 16 of the agreement which specifically refers to a "Retrenchment Procedure". Clause 16 states that a retrenchment procedure "will be negotiated between the parties as soon as possible". It is common cause that at the time of the dismissal of the respondent's members, there was no negotiated retrenchment procedure between the appellant and UASA in existence. The appellant could therefore not have acted in terms of clause 16 of the agreement.' In this regard, the LAC found as follows:
' Section 189(1) of the Act that has been referred to above places a duty on any employer to consult any person it is required to consult in terms of a collective agreement or other persons or structure where there is no collective agreement. It would therefore be unreasonable to interpret clause 4.1 of the agreement in such a way that it included consultation in terms of section 189 (1) of the Act when the procedure required to consult in terms of section189 (1) of the Act had not been negotiated with UASA in particular.' In the current matter, NUMSA took issue with the body that AngloGold is consulting with over the current retrenchment as it includes further nominees and is facilitated by the CCMA. NUMSA further challenges AngloGold's suggestion that the facilitating commissioner would have the power to rule that a NUMSA representative can be included in the proceedings. In this regard, NUMSA argued that AngloGold can only rely on a collective agreement in the hierarchy of consultation when such collective agreement contains specific negotiation procedure, the consulting parties are identified and when the parties are complying with those agreed procedures.
 Clauses 2, 13, 14 and 20 of the collective agreement should be considered in the context of the whole agreement. It is apparent that the collective agreements entered into between AngloGold and NUM, Solidarity, AMCU as well as UASA provides for SARSC to consult over matters of mutual interest and dismissals for operational requirements are matters of mutual interest. Thus, this is an issue in respect of which SARSC must consult over.
 It is further apparent that AngloGold undertook to follow the procedure applicable in terms of the relevant section of the LRA should dismissals on account of operational requirements become necessary. The relevant section in this regard is section 189 and 189A of the LRA. Section 189(1)(a) requires AngloGold to consult any person whom the employer is required to consult in terms of a collective agreement, which is NUM, Solidarity, AMCU and UASA.
 The fact that the body that AngloGold is consulting with over the current retrenchment includes further nominees and is facilitated by the CCMA is of no consequence. Section 189A(3) provides for the appointment of a CCMA commissioner to facilitate the retrenchment process and although AngloGold is not obligated in law to consult with any other person, it may do so. As such, AngloGold is under no obligation to consult with NUMSA. It follows that NUMSA's application to compel AngloGold to comply with a fair procedure should be dismissed.
 In terms of section 162 of the LRA, the Court has a wide discretion in awarding costs. The Constitutional Court has recently reiterated in Zungu v Premier of the Province of Kwa-Zulu Natal and Others, that costs orders should be made in accordance with the requirements of law and fairness. In this matter, there is no reason why the costs should not follow the cause.
 In the circumstances, I make the following order.
- This application is dismissed with costs.