Majoritarianism, Minority Unions and the granting of Organisational Rights: The ball is in the employer’s court

An overview of the Labour Relations Act, 1995 allowing an employer and a majority trade union in the workplace to conclude a collective agreement establishing thresholds of representativeness for the exercise of the organisational rights.

This article has been published by Ludwig Frahm-Arp of Fasken Martineau who has agreed to Simmons & Simmons making it available on elexica.

Section 18(1) of the Labour Relations Act (LRA), 1995 allows an employer and a majority trade union in the workplace to conclude a collective agreement establishing thresholds of representativeness for the exercise of the organisational rights set out in sections 12, 13 and 15 of the LRA.

The question before the Labour Appeal Court in SACOSWU v POPCRU and others (JA87/2015) [2017] ZALAC 36 was whether an employer is precluded from according certain of the organisational rights set out in sections 12, 13 and 15 of the LRA to a minority union when it falls short of the representation threshold agreed between the employer and the majority trade union in terms of section 18 (1).

In this case, the Department of Correctional Services concluded an agreement with the majority union, Polica and Prisons Civil Rights Union (POPCRU), and Democratic Nursing Organisation of South Africa (DENOSA), another union, establishing representation thresholds. The agreement further stated that the agreement binds the parties to it “and all employees who are not members of a registered trade union admitted to the department council, as well as members of registered trade unions admitted to the council who are not parties to this agreement.” In 2009, South African Correctional Services Workers Union (SACOSWU), a minority union sought, permission to represent its members in disciplinary and grievance proceedings and for its union subscription fees to be deducted by the Department from SACOSWU’s members for a limited period.

On 05 November 2010, the National Commissioner of Correctional Services informed SACOSWU in writing that it was granted the right to represent its members in disciplinary hearings and that the Department would assist SACOSWU with deductions pending the finalisation of Treasury taking over the function to make deductions. This agreement constituted a collective agreement between SACOSWU and the Department.

POPCRU was displeased with the conclusion of the collective agreement between SACOSWU and the Department and referred an “interpretation and application of a collective agreement” dispute to the General Public Service Sectoral Bargaining Council seeking a finding that the decision of the Department to grant SACOSWU organisational rights was invalid and unenforceable.

The arbitrator held that the collective agreement between SACOSWU and the Department was valid and enforceable based on section 20 of the LRA which states that nothing in Part A of Chapter II of the LRA precludes the conclusion of a collective agreement regulating organisational rights. This was based on a broad interpretation of the LRA which the arbitrator found should not be interpreted to preclude non-representative unions from obtaining organisational rights, either by agreement with the employer or through industrial action.

POPCRU took the matter on review in the Labour Court. The Labour Court held that the collective agreement concluded between SACOSWU and the Department was “entirely incompatible” with the section 18(1) agreement entered into with POPCRU in terms of section 18(1) and that the two agreements could not exist mutually because the agreement in terms of section 18(1) established a representation threshold and that agreement was extended to non parties under section 23(1)(d) and accordingly bound SACOSWU. Further, the right to trade union representation in disciplinary proceedings was specifically limited to trade unions admitted to the bargaining council which SACOSWU was not a part of because it did not meet the required threshold. The court stated that since POPCRU is a majority union, the agreement with it must receive priority given the principle of majoritarianism. The collective agreement between SACOSWU and the Department was thus found by the Labour Court to be invalid and unenforceable.

The matter was taken on appeal to the Labour Appeal Court by SACOSWU. SACOSWU submitted that the LRA must be read to avoid the limitation of fundamental rights and that owing to section 20, nothing prevented the Department from granting it organisational rights if it chose to. POPCRU argued that permitting the Department to enter into an agreement with a minority union would render section 18 nugatory and fly in the face of the principle of majoritarianism.

The LAC held that a minority union is not barred from seeking to be granted section 12, 13 or 15 organisational rights and to conclude a collective agreement with the employer to record this notwithstanding a section 18(1) agreement having been concluded.

First, the LAC relied on Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC) where the Constitutional Court held that nothing in the LRA states that unions which admit that they do not meet the requisite membership threshold levels are prevented from using the ordinary processes of collective bargaining and industrial action to persuade employers to grant them organisational facilities.

Second, the LAC held that the “nothing” referred to in section 20 means nothing in that Part of the LRA including a section 18(1) agreements precluding the conclusion of a collective agreement that regulates organisational rights. The effect of a section 18(1) threshold is to oblige the employer to grant unions that have met the threshold the rights set out in section 12, 13 and 15 but not to limit the employer’s prerogative to bargain with unions that have not reached the threshold.

The LAC recognised that the majoritarian system was preferred in approaching collective bargaining under the LRA but stated the following regarding the approach it took in this judgment:

“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.”

The effect of this case is that a section 18(1) agreement is binding only to the extent that it gives meaning to the term “sufficiently representative” for purposes of collective bargaining.

This case confirms that allowing minority unions to function and challenge the hegemony of majority unions is compatible with the system of majoritarianism and that to the extent of such compatibility, an interpretation imposing less limitation on the fundamental rights of minority unions must be preferred. Where a section 18(1) agreement has been concluded, unions, including minority unions, still have the right to demand collective bargaining from an employer. Ultimately, the employer retains the choice of deciding whether to bargain collectively or not with any union, notwithstanding the terms of a section 18(1) agreement.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.