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When is the right to strike not the right to strike?

Anastasia Vatalidis

On the eve of the annual strike season, the Labour Appeal Court, in the matter of Chamber of Mines of South Africa and Others v AMCU and Others was once again called upon to consider the complex issues which arise in the context of the right to strike. The dispute - which initially came before the Labour Court - took the form of an urgent application brought by the Chamber of Mines seeking to declare strike action, called by the Association of Mine and Construction Union (Amcu) in the gold mining industry, unprotected.

The Chamber argued that Amcu members were prohibited from striking as they were bound by a collective agreement concluded in 2013 between the Chamber, on behalf of Harmony Gold, AngloGold Ashanti and Sibanye Gold mines on the one hand, and NUM, Solidarity and UASA on the other. At the time the agreement was concluded, these three unions collectively represented the majority of the employees at each workplace and consequently the agreement had been extended to employees who were not members of NUM, Solidarity or UASA.

AMCU in turn argued that it was not bound by the collective agreement as it was the majority union at a number of the employers' individual mines. To determine if AMCU represented the majority of the employees at an employer's workplace, the Labour Appeal Court had to consider the meaning of the "workplace".

"Workplace" definition

The Labour Relations Act 66 of 1995 ("the LRA") defines the workplace as – 'the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation constitute the workplace for that operation.'

In the Chamber of Mines decision, Cele J said that the definition of workplace should be interpreted to read that all places where the employees of an employer work constitute a single workplace. Only if the two or more operations are independent of one another by reason of size, function and organisation, would these operations constitute distinct workplaces.

The factors which, according to Cele J, suggest an integrated business and therefore a single workplace include that:

  • All operational decisions are subject to the approval of a central board,
  • Operating procedures are standardised across an employer's branches and ultimately determined by a central board, and
  • Financial management and the production planning of an employer's business are centralised.

Looking at these factors, Cele J concluded that each of the employers in question operated a single workplace and that Amcu would have to demonstrate that it represented the majority of employees across each employer's single workplace – not only at specific mines –to be regarded as the majority union. Having established that each employer party to the collective operated a single workplace, the Labour Appeal Court rejected Amcu's claim that it was a majority trade union.

The Labour Appeal Court's decision

Having rejected Amcu's claim that it represented the majority of employees in certain instances, the Labour Appeal Court determined that AMCU members were bound by the collective agreement concluded by the Chamber and could not strike. To conclude otherwise, and have AMCU represent the minority employees and succeed in negotiating a new wage agreement, despite the existence of a binding collective agreement, would be contrary to the intention of the legislature.

Citing with authority Transnet SOC LTD v National Transport Movement and Others, Cele J held that the LRA does not preclude the minority union members from exercising their right to strike; however, the rights of the AMCU members to strike must be seen in context of the majority unions' rights to collectively bargain with employers. If one were to accept that one or more unions represented the majority of the employees in the workplace, it would be contrary to the constitutional democracy to prevent majoritarianism from prevailing.

The Labour Appeal Court decision once again highlights the challenges facing minority unions seeking organisational rights as a first step towards collective bargaining. Many argue that one underlying cause of the 2013 Marikana tragedy could be the challenges faced by AMCU to secure organisational rights or a seat at the bargaining table, despite purportedly representing thousands of employees in the mining sector.

The only certainty seems to be the legislature's continued support for majoritarianism. This would mean the battle for power between opposing unions and between unions and employers for the recognition will continue to be the order of the day - with the right to strike being the only real tool at the employee's disposal caught at the centre of the debate.

Anastasia Vatalidis is a director at Werksmans Attorneys and Head of the Labour & Employment practice area. Her main practice areas are labour and employment as well as dispute resolution. She specialises in commercial employment transactions, employment law and litigation, pension law and health and safety law. She was named as a recommended lawyer in Labour and Employment law by the Legal500.