In UASA, Solidaity and NUM v Lonmin Platinum PLC and AMCU (HO1312-18), the CCMA was tasked with determining the question of whether three minority trade unions, acting jointly, could obtain organisational rights at Lonmin in order to challenge the influence of the majority union (AMCU).

Section 18 of the Labour Relations Act, 1995 (the LRA) allows an employer and a majority trade union to conclude a collective agreement establishing a representivity threshold which effectively excludes minority trade unions from gaining organisational rights at the employer’s workplace.  This is part of the principle of majoritarianism endorsed by the LRA.

Section 21(8C) however allows a minority trade union, or minority trade unions acting jointly, to obtain organisational rights (despite the fact that they do not meet the threshold) if they represent a “significant interest or substantial number” of employees in the workplace.

Typically such attempts to gain organisational rights have met with little success due to the institutional desire to avoid the proliferation of trade unions at a workplace.

In a novel development, three rival trade unions (UASA, Solidarity and NUM) joined forces to create a self-styled ‘Coalition’ in order to gain organisational rights in competition with AMCU. Lonmin and AMCU in turn both opposed the application.

In a well-reasoned award, the CCMA ruled that despite the protestations from Lonmin and AMCU that the granting of organisational rights to the Coalition would lead to a proliferation of trade unions and thus inter-union rivalry and possible violence, it was fair to grant organisational rights to the Coalition, essentially because it represented a substantial number of the employees at Lonmin and could not be proven to be a sham.

The Commissioner thus granted organisational rights to the Coalition, subject to certain safeguards so as to ensure that the unprecedented cooperation between the three minority trade unions was not simply a marriage of convenience. In summary, the Coalition will henceforth be obliged to exercise those organisational rights as a single entity.

Clients who are exposed to multi trade union workplaces will need to take heed of the possibility that rival trade unions may see the sense in increased cooperation.  This will no doubt render more complex, the collective bargaining environments at play.  Clients may also wish to revisit the recognition agreements that they have with the majority trade union in order to ensure that the principle of majoritarianism remains entrenched for practical purposes.

This article was written by Jason Whyte, Director, Norton Rose Fulbright South Africa Inc

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