POPCRU v SACOSWU & Others (CCT152/17) [2018] ZACC 24 (23 August 2018)

Principle:

  1. The principle of majoritarianism embraced by our labour law is not incompatible with the principle of freedom of association which finds expression in the right to form and join a union of one's choice. Any statutory provision that prevents a trade union from bargaining on behalf of its members or representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing workers who belong to one trade union to be represented by a rival union at disciplinary hearings seriously undermines their right to freedom of association.
  2. Neither section 18 nor section 23 precludes the conclusion of a collective agreement between an employer and a minority union where a section 18 agreement between the same employer and a majority union exists.

Facts:

The judgment deals with a dispute between two rival unions over the right of a minority union to acquire organisational rights from an employer, where the majority union has a pre-existing collective agreement with the employer setting a threshold of representativeness for admission to a Departmental Bargaining Council, which the minority union does not meet.

The Department of Correctional Services concluded a collective agreement with the Police and Prisons Civil Rights Union (POPCRU), the majority union in the Departmental Bargaining Council, under s18(1) of the LRA. S18(1) provides for an employer and a majority union to establish thresholds of representativeness in order to acquire organisational rights under sections 12 (workplace access), 13 (stop orders) and 15 (union leave). S18(2) provides that any such threshold agreement is only binding if it is applied equally to any union seeking such organisational rights at that workplace.

The collective agreement between the Department and POPCRU fixed 9 000 union members in the Department as the threshold that every union had to meet before it could acquire the relevant organisational rights provided for in the LRA. Notwithstanding this, the Department concluded a collective agreement with the South African Correctional Services Workers Union (SACOSWU), in terms of which it granted SACOSWU certain organisational rights despite the fact that that SACOSWU did not meet the threshold fixed in the s18(1) collective agreement between the Department and POPCRU.

As a result, POPCRU disputed whether the Department was entitled to conclude this collective agreement. POPCRU argued that its threshold collective agreement was binding on SACOSWU under s23(1)(d), which provides that a collective agreement with a majority union is binding on all employees in the workplace, including non members of the majority union. In response, SACOSWU argued that the employer was entitled to grant it organisational rights, in light of s20 which states that "nothing in this Part (of the Act) precludes the conclusion of a collective agreement that regulates organisational rights".

The dispute journeyed through the dispute mechanisms under the LRA. The arbitrator concluded that the Department and SACOSWU were entitled to conclude the collective agreement providing SACOSWU organisational rights, notwithstanding the threshold agreement between the Department and POPCRU. POPCRU was successful in having this award set aside on review in the Labour Court, but on appeal the Labour Appeal Court concluded that the Department and SACOSWU were entitled to conclude the collective agreement.

The Constitutional Court disconcertingly gave 3 judgments in this matter - 2 minority judgments and the judgment agreed by the majority of the judges. The presence of the minority judgments owed much to a debate over whether the subject matter of the dispute was 'moot' and needed to be decided, due to the fact that the collective agreement with POPCRU was no longer in force at the time the dispute was referred to the Labour Court. Nevertheless, the majority judgment decided it was in the interests of justice and the public interest for the ConCourt to decide the matter. Our focus is on the majority judgment.

Although disagreeing with some of the reasoning adopted by the LAC, the ConCourt dismissed the appeal against the LAC judgment and agreed that the Department and SACOSWU were entitled to conclude their collective agreement. The ConCourt found that neither s18 nor s23 precludes the conclusion of a collective agreement between an employer and a minority union, where a section 18 threshold agreement between the same employer and a majority union exists.

The ConCourt pointed out that a minority union may access organisational rights in sections 12, 13 and 15 in a number of ways:

  • First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer;
  • Second, it may bargain and conclude a collective agreement with an employer, in terms of which it would be permitted to exercise the relevant rights; and
  • Third, a minority union may refer the question as to whether it can exercise those rights to arbitration in terms of section 21(8C) of the LRA. If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.

The ConCourt pointed out that the interpretation of s18 advanced by POPCRU would effectively deny minority unions the right to engage in collective bargaining, which is a right conferred on every trade union by the Constitution, regardless of whether the union has a majority or minority status.

We think this ConCourt judgment shows clearly that the LRA should not be interpreted in a manner that denies minority unions the right to engage in their Constitutional right to collective bargaining, whilst recognising that an employer may not necessarily be obliged to grant that minority union the rights it seeks. But where an employer, for whatever reason, agrees to grant a minority union certain organisational rights or enter into collective bargaining with that minority union, the LRA should not be interpreted to prevent this. Whilst that minority union may not have been entitled to enforce those rights through the statutory provisions of the LRA, the LRA should not be interpreted to prevent an employer from agreeing to grant those rights.

The ConCourt emphasised that the principle of majoritarianism embraced by our labour law is not incompatible with the principle of freedom of association, which finds expression in the right to form and join a union of one's choice. Forcing workers who belong to one union to be represented by a rival union at disciplinary hearings would seriously undermine their right to freedom of association.

Extract from the judgment:

(Jafta J:)

[90]  Significantly, it emerges from this statement that the principle of majoritarianism which is embraced by our labour law is not incompatible with the principle of freedom of association which finds expression in the right to form and join a union of one's choice. Workers form and join trade unions for protecting their rights and advancing their interests at the workplace. Any statutory provision that prevents a trade union from bargaining on behalf of its members or forbidding it from representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing workers who belong to one trade union to be represented by a rival union at disciplinary hearings seriously undermines their right to freedom of association described earlier.

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[95]  The text of the section limits its content and scope to the right to determine a threshold in terms of a collective agreement. Section 18 does not authorise the employer and a majority union to determine which constitutional rights other unions that are not parties to the collective agreement, may exercise. The section does not refer at all to the right to engage in collective bargaining. Nor does it mention freedom of association, which enables every worker to form or join a trade union of their own choice.

[96]  It is not surprising that section 18 does not prohibit collective bargaining between an employer and a minority union where there is a collective agreement between that employer and the majority trade union. Such a prohibition would be inconsistent with the Constitution and international law. Over and above that, the prohibition if it were to exist, would be meaningless. This is because section 20 declares that nothing in Part A of Chapter III, where section 18 is located, precludes the conclusion of a collective agreement that regulates organisational rights.

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[98]  It is important to note that this Court rejected the proposition that minority unions were precluded from concluding collective agreements on organisational rights where there was an existing agreement between the employer and a majority union. The Court preferred a wider reading of section 20, which was supported by the text and was also consonant with the LRA's commitment to freedom of association and the promotion of orderly collective bargaining. It was held, in addition, that the wider reading was in line with "the internationally recognised rights of minority unions to seek to gain access to the workplace . . . through the techniques of collective bargaining".

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[101]  Therefore, neither section 18 nor section 23 precludes the conclusion of a collective agreement between an employer and a minority union where a section 18 agreement between the same employer and a majority union exists.

[102]  When properly construed Chapter III of the LRA reveals that a minority union may access organisational rights in sections 12, 13 and 15 in a number of ways. First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer. In that event, a minority union does not have to bargain before exercising the rights in question. Second, such union may bargain and conclude a collective agreement with an employer, in terms of which it would be permitted to exercise the relevant rights. Third, a minority union may refer the question whether it should exercise those rights to arbitration in terms of section 21(8C) of the LRA. If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.

[103]  The interpretation of section 18 advanced by POPCRU here is not supported by the text of the provision. But not only that. POPCRU's construction would effectively deny minority unions the right to engage in collective bargaining. This right is conferred on every trade union by the Constitution, regardless of whether the union has a majority or minority status.