The extension of collective agreements to minority union members based on the principle of majoritarianism does not unreasonably limit the constitutional right to strike.
In Association of Mineworkers and Construction Union and others v Chamber of Mines of South Africa and others  7 BLLR 641 (CC). The Chamber of Mines on behalf of various gold mining companies concluded a collective wage agreement with major trade unions (NUM, Solidarity and UASA) who together represented a majority of workers in the gold mining sector. The Association of Mineworkers and Construction Union (AMCU) refused to sign the agreement and gave notice that it would strike for higher wages than that agreed to in the collective wage agreement.
Was AMCU bound to the collective agreement?
AMCU did not consider itself bound to the agreement despite the agreement being extended to all employees in the sector in terms of section 23(1)(d) of the Labour Relations Act, 1995 (LRA). The section stipulates that a collective agreement binds employees who are not members of the unions which are party to the agreement provided that the trade union(s) who enter into the agreement have as their members the majority of the employees in the workplace of the employer.
AMCU argued that the collective agreement could not extend to the individual mines in which it enjoyed majority representation. The court considered whether each mine constituted a “workplace” as mentioned in section 23(1)(d) of the LRA or whether all the mines together constituted a single workplace because each mining house operated integrally as a single workplace and that each AMCU-majority mine was not an independent operation. AMCU did not enjoy majority representation and was bound to the collective agreement.
The reasonable and justifiable limitation on AMCU’s right to strike
Because section 65(1)(a) of the LRA prohibits a person from striking if that person is bound by a collective agreement in respect of the issue in dispute, AMCU was not allowed to strike as it was bound by the collective wage agreement.
Although AMCU challenged the constitutionality of section 23(1)(d) in limiting its right to strike, the court held that the infringement on the right to strike is reasonable and justifiable for three reasons:
- It promotes the principle of majoritarianism which is required for effective collective bargaining;
- The limitation on the right to strike is not indefinite. The collective agreement only applies for the duration of the agreement and the right to strike is only limited to the specific issue (wages) covered in the agreement. AMCU may strike on issues that are not covered in the agreement.
- The extension of a collection agreement may be taken on review to the courts to ensure that there is no arbitrariness or irrationality.
The recognition of the principle of majoritarianism should encourage employees and trade unions not to engage in strikes if they are bound by a collective agreement that addresses the issue in dispute. Additionally, parties to collective agreements should also be certain that they enjoy majority representation in the workplace of the employer before assuming that the collective agreement extends to individuals who are not party to the agreement.
This article was written by Rukshana Parker, Candidate Attorney, Norton Rose Fulbright South Africa Inc