Johan Kruger – Head: Communication and Research Solidarity Trade Union

1. SASLAW SEMINAR 28 JANUARY 2014 Johan Kruger – Head: Communication and Research Solidarity Trade Union “The constitutionality of section 18 of the LRA and the principle of majoritarianism in labour relations”.

2. Framework • Introductory remarks • The majoritarian approach of the Labour Relations Act • Section 18 and the impact thereof on minority trade unions • International labour standards and recommendations of the Committee for Freedom of Association of the ILO • Relevant constitutional provisions • The constitutionality of section 18

3. Introductory remarks • Solidarity and other minority unions have been grappling with the application of section 18 and its impact for many years. • The tragic events at Marikana during 2012 focussed the spotlight on section 18 and its impact. The application of section 18 was a significant contributing factor that led to the unrest at Marikana during 2012. • The Framework Agreement for a Sustainable Mining Industry recognises the concern that section 18 may have the unintended consequence of infringing on certain constitutional rights of organisations and individuals.

4. Introductory remarks • During the course of this presentation I will argue that section 18 of the LRA: • falls foul of international labour standards on the right to freedom of association and the right to organise; • results in the unlawful and unconstitutional infringement on the constitutional right to freedom of association; • results in the unlawful and unconstitutional infringement on the right to organise; and • cannot constitute a reasonable and justifiable limitation of these rights, as contemplated by section 36(1) of the Constitution.

5. Majoritarianism and pluralism • The model of majoritarianismbestowsadegree of primacyonunionswithmajoritymembership (atleast 50%+1) in aworkplace. (Van Niekerk et al Law @ Work361 ) • Pluralismcanbedescribed as “... a term used by the predecessor of the LRA to describe a model of collective bargaining that, in contrast to the majoritarian model grants recognition to more than one trade union, provided they are sufficiently representative, of a defined bargaining unit. (Du Toit et alLabourRelationsLaw 246.)

6. The majoritarian approach of the LRA • Chapter III of the LRA regulates collective bargaining. • While this chapter seemingly promotes a pluralistic approach to organisational rights it is decidedly biased towards majoritarianism. • Besides the right of a majority trade union to appoint representatives and the right to disclosure of information by the employer to enable the trade union representative to effectively perform his/her duties as such, the incentives for majoritarianism in the LRA go much further.

7. The majoritarian approach of the LRA • The rights of a majority trade union also includes the right to: • enter into a collective agreement setting thresholds of representivity for the granting of access, stop-order and trade union leave rights to minority unions (section 18); • conclude agency shop and closed shop agreements (sections 25 and 26), the right to apply for the establishment of a workplace forum (section 80 and 81); and • conclude collective agreements which will bind employees who are not members of the union or unions party to the agreement (section 23).

8. The majoritarian approach of the LRA • Zondo JP (as hethen was) in the matter of Kem-LinFashions CC v Brunton & anotherconfirmedthispolicy by stating: • “The legislature has made certain policy choices in the Act which are relevant to this matter. One policy choice is that the will of the majority should prevail over the will of the minority. This is good for orderly collective bargaining as well as the democratisation of the workplace and sector. A situation, in which the minority dictates to the majority, is quite obviously, untenable." (2001)1BLLR 25 (LAC)

9. Section 18 and its impact on minority trade unions • Section 18(1) of theLRAstates as follows: ”Anemployerandaregisteredtradeunionwhosemembers are amajority of theemployeesemployed by thatemployer in aworkplace, orthepartiestoabargainingcouncil, mayconcludeacollectiveagreementestablishingathreshold of representativenessrequired in respect of oneor more of theorganisationalrightsreferredto in sections 12, 13 and 15.”

10. Section 18 and its impact on minority trade unions • Section18(2) of the LRA providesas follows: “ A collective agreement concluded in terms of subsection (1) is not binding unless the thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection.

11. Section 18 and its impact on minority trade unions (1) • Minority unions are often faced with a situation where majority trade unions and employers agree to establish an inordinately high threshold for representativeness which is unreachable for minority unions. • As a result minority unions cannot obtain organisational rights in terms of sections 12,13 and 15 of the LRA. • It is extremely difficult for a union in this position to increase its membership, which again ensures that it will never reach the set threshold. This is so despite the support that a minority union may enjoy in a certain bargaining unit in the workplace.

12. Section 18 and its impact on minority trade unions (2) • There is also a high prevalence of cases where the threshold is raised in a new collective agreement after the previous collective agreement (with a lower threshold) expires. • This is done in order to strenghten the position of the majority union and diminish the impact that a minority union had while it enjoyed recognition. • The result hereof is that a minority trade union, which has been consistently reaching thresholds for representivity within specific bargaining units, loses the recognition that it had enjoyed up to that point.

13. Section 18 and its impact on minority trade unions (2) • In these circumstances minority unions as a rule loses their members in that specific workplace, because these members fail to see the advantages of belonging to a trade union when it has no organisational or bargaining rights.

14. Section 18 and its impact on minority trade unions (3) • A further tactic often used by majority unions and employers entails the re-negotiation of an often long standing bargaining unit structure. • The aim of this tactic is to diminish the number of bargaining units by incorporating the bargaining units where minority trade unions are organised, into one bargaining unit. • The effect is that minority unions find it impossible to reach the required threshold in the new bargaining structure ( normally 50%+1) in circumstances where it has consistently done so in terms of the previous bargaining unit structure. As a result their recognition agreements are terminated.

15. International labour standards • International Labour Standards take the form of conventions or recommendations. Conventions are international treaties that bind the members States which ratify them. • By ratifying them, members States formally commit themselves to putting their provisions into effect, both in law and practice. • South Africa has ratified a number of fundamental conventions of the ILO, including the Freedom of Association and Protection of the Right to Organise Convention (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

16. International labour standards • The Constitution recognises the importance of international labour standards and expects it to find application in the interpretation of South African legislation. • Sections 39(1) and 232 of the constitution are of particular importance. • S v Makwanayane (1999) 20 ILJ 2265 (CC) confirmed that in appropriate cases, report of specialised agencies such as the International Labour Organisation may provide guidance as to the correct interpretation of particular provisions of the Bill of Rights.

17. Recommendations of the CFA • The Committee on Freedom of Association (CFA) is a Governing Body Committee of the ILO. It was established by the ILO in 1951 for the purpose of examining complaints against member states for violations of freedom of association, whether or not the member state concerned had ratified the relevant Conventions. • If the CFA finds that there has been a violation of freedom of association standards, it issues a report and makes recommendations on how the situation could be remedied. Governments are requested to report on the implementation of its recommendations

18. Recommendations of the CFA • The Digest of Decisions of the CFA contains its recommendations on majoritarianism and pluralism. • Its recommendations clearly state that, while it may be to the advantage of workers to avoid a multiplicity of trade union movements, unification through state intervention, be it a direct or indirect result of legislative provisions applicable to trade unions, is contrary to the principles embodied in articles 2 and 11 of the convention concerning Freedom of Association and Protection of the Right to Organise Convention (1948) (Convention No. 87).

19. Recommendations of the CFA And • “The fact that workers and employers generally find it in their interests to avoid a multiplication of the number of competing organizations does not, in fact, appear sufficient to justify direct or indirect intervention by the State, and especially, intervention by the State by means of legislation” (See the 1996 Digest, para. 287.)

20. Recommendations of the CFA • Favouritism or discrimination • “By placing one organization at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organization to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organization for occupational, religious, political or other reasons. The freedom of the parties to choose is a right expressly laid down in Convention No. 87.” • (See the 1996 Digest, para. 303; and 328th Report, Case No. 2139, para. 445.)

21. Recommendations of the CFA – organisational rights • Governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization. • (See the 1996 Digest, para. 954; 309th Report, Case No. 1852, para. 338; 327th Report, Case No. 1948/1955, para. 358; 330th Report, Case No. 2208, para. 604; 332nd Report,Case No. 2046, para. 446; 333rd Report, Case No. 2255, para. 131; 334th Report,Case No. 2316, para. 505; 335th Report, Case No. 2317, para. 1087; and 336th Report)

22. Recommendations of the CFA – organisational rights • Any provision which gives the authorities, for example, the right to restrict trade union activities in relation to the activities and objects pursued by trade unions in the vast majority of countries for the furtherance and defence of the interests of their members would be incompatible with the principles of freedom of association. • (See the Digest of 1985, para. 346.)

23. Relevant constitutional provisions • Founding principles • Sections 7(1) and (2) • The right to freedom of association [section 18] • The right to fair labour practices [section 23] • The right to organise [section 23 (4)(b)] • The limitation of rights [section 36] • Section 39(2)

24. Relevant constitutional provisions • The founding principles of the Constitution set positive standards to which all law in South Africa must comply with in order to be valid. • Important provisions include the founding principles of human dignity, the achievement of equality and the advancement of human rights and freedoms. • The supremacy of the Constitution and the rule of law are further important provisions for purposes of this assessment. These provisions provide the key to the understanding of the core meaning of democracy.

25. Relevant constitutional provisions • Section 7(1) of the Constitution further affirms the democratic principles and lays the foundation for the interpretation of the fundamental rights in Chapter 2 of the Constitution by stating: • “The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” • The purpose of the LRA resonates with this provision.

26. Relevant constitutional provisions • The right to fair labour practice is protected by section 23 of the Constitution. The LRA was enacted to give effect to this right, and is the national legislation envisaged by this section to regulate collective bargaining. • If any labour practice infringes this right it is unlawful and unconstitutional, subject to the application of section 36(1). • The provisions of section 39(2) “When interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purpose and objects of the Bill of Rights.”

27. S 18 in line with the CFA recommendations? • Section 18 is a state intervention through legislation, the indirect result of which is unification of trade union movements. • This is contrary to the principles embodied in articles 2 and 11 of the convention concerning Freedom of Association and Protection of the Right to Organise Convention (1948) (Convention No. 87).

28. S 18 in line with the CFA recommendations? • Through the application of section 18, minority trade unions are placed at a disadvantage, the result of which is that workers are indirectly influenced in choosing the organisation to which they intend to belong. • This is so as they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons • This falls foul of the principles of Convention no 87.

29. S 18 in line with the CFA recommendations? • Through the application of section 18, government fails to guarantee the access of trade union representatives to workplaces, as recommended by the CFA. • Section 18 gives majority trade unions and employers the right to restrict trade union activities in relation to the activities and objects pursued by trade unions in the vast majority of countries for the furtherance and defence of the interests of their members. • This falls foul of Convention no 87.

30. The constitutionality of section 18 • If the recommendations of the CFA, as discussed earlier, are to be used for interpreting section 18 and 23(4)(b) in furtherance of sections 39(1) and 232 of the Constitution, Section 18 of the LRA would constitute a labour practice which infringes the right of workers to freedom of association and the right of trade unions to organise. • This infringement is unlawful and unconstitutional unless it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

31. The constitutionality of section 18 • This limitation can not be seen as being reasonable and justifiable, as contemplated by section 36(1) of the constitution, taking into account all relevant factors including: • the nature of the right; • the importance of the purpose of the limitation; • the nature and extent of the limitation; • the relation between the limitation and its purpose; and • less restrictive means to achieve its purpose.

32. Thank you/ questions