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

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On the eve of what is now commonly referred to as the annual strike season,
the Labour Appeal Court was once again called upon to consider a series of
complex issues which invariably arise within the context of the right to strike.


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By Anastasia Vatalidis, Director at Werksmans Attorneys
On the eve of what is now commonly referred to as 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 a
series of complex issues which invariably arise within 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 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 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 in
question as it was the majority union at a number of the employers? individual
mines. In order to determine whether 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 took the view that the definition of
workplace should be interpreted to read that the general rule is that all places
where the employees of an employer work constitute a single workplace. The
second part of the definition should be read as a proviso to this general rule.
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; that operating procedures are standardised
across an employer?s branches and ultimately determined by a central board;
and that 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 - in order 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 LAC?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.

VARYING INTERPRETATIONS
Outside of the mining sector, the Labour Appeal Court?s construction of the
workplace could have a very different outcome in light of rapidly changing
business models. The reality of modern multifaceted corporations is that not all
operational decisions taken at a branch level are subject to the approval of a
central board; geographic and cost efficiency considerations may dictate that a
business conduct its financial management and production planning at a branch
level; and it may be impractical to conduct recruitment centrally. The evolving
and expansive nature of modern business may result in more branches being
classified as independent workplaces, thereby potentially requiring employers to
accommodate more than one union.
While the objective of recognising a union such as AMCU at a particular mine
may be genuine, one cannot but wonder at which point multiple union
representation in the workplace would justify accommodating further unions,
even at the cost of majoritarianism. There is, after all, no correlation between
the number of unions granted organisational rights and the quality and
effectiveness of the union representation in a particular employer?s workplace.

Bearing in mind that labour relations and more particularly, the facilitation of
trade union representation must be manageable for employers both financially
and logistically, perhaps the debate should shift from being one about
majoritarianism and increasing the number of unions exercising organisational
rights, to one around how one can ensure union representation is more
effectively utilised.

CONCLUSION
In light of the Labour Appeal Court?s latest construction of the workplace
and the growing move away from the traditional centralised business, outside of
the mining sector, employers with a seemingly small workforce may find
themselves bargaining collectively with different unions representing employees
at each independent branch. Ironically, on the other hand, given the centralised
nature of the mining industry and legislature?s support for majoritarianism, the
challenges facing minority unions - even those unions representing thousands
of employees in the mining industry seeking to secure a seat at the bargaining
table - are far from over.
Perhaps the only certainty in the debate is 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 disposal of the employee caught at the centre of the debate.
What do you think?
When does the right to strike cease to be a right?


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