Rapport définitif - Rapport No. 396, Octobre 2021

Cas no 3379 (Afrique du Sud) - Date de la plainte: 14-AVR. -20 - Clos

Allegations: The complainant alleges mass dismissals of its members by a metal-producing company in the context of restructuring and alleges that sections 23(1) and 189(1) of the Labour Relations Act, on which the dismissals were based, are contrary to ILO Conventions on freedom of association, in that they exclude minority unions from retrenchment consultations and do not allow them to make observations in case of extension of collective bargaining agreements.

1. 52. The complaint is contained in a communication dated 14 April 2020 from the Association of Mineworkers and Construction Union (AMCU).
2. 53. The Government provided its observations in a communication dated 15 December 2020.
3. 54. South Africa has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 55. In its communication dated 14 April 2020, the complainant alleges the illegal dismissal of 103 of its members by the Royal Bafokeng Platinum Limited (hereinafter “the metal-producing company” or “the company”) in 2015 and denounces the lack of consultation with the complainant – a minority union – both during the retrenchment consultations and before the extension of the retrenchment agreement to its members in application of sections 23(1) and 189(1) of the Labour Relations Act (LRA) (see appendix). The complainant alleges that, in practice, employees facing mass retrenchments have no right to be represented by minority unions of their choice in circumstances where other unions have concluded a collective agreement with the employer, that any retrenchment agreement reached between the employer and a majority union can be extended to minority union members without any participation from the workers’ union of choice and that the national laws governing the subject are thus not in line with the principles of freedom of association.
2. 56. In particular, the complainant indicates that at the time of the dismissals it was a minority union at the company, representing 11 per cent of the total workforce and did thus not have organizational rights. As for the context of the dismissals, the complainant states that the company concluded a collective agreement with two other unions – the National Union of Mineworkers (NUM), which represented around 56 per cent of the workers, and the UASA – The Union (UASA), which represented 2 per cent of the workforce. The collective agreement provided for a retrenchment exercise, in consultation with the NUM and the UASA, which led to the conclusion of a retrenchment agreement, which was extended to apply to the complainant’s members in line with section 23(1)(d) of the LRA. The agreement stated that 103 AMCU members would be retrenched and that any unfair dismissal dispute that could arise therefrom would be waived and considered as fully and finally settled. Not having been informed about the dismissals, the concerned workers arrived at work on 30 September 2015, were herded into buses by the company’s security personnel and were issued notices of dismissal, even when the fixed-term contracts of some of them did not contain a clause permitting the company to retrench them.
3. 57. The complainant first launched an application before the Labour Court to challenge the procedural fairness of the dismissals under section 189A(13) of the LRA, as well as the substantive fairness of the dismissals before the Commission for Conciliation, Mediation and Arbitration, which ruled in November 2015 that it lacked jurisdiction to conciliate the matter. During the proceedings, the company claimed that the retrenchments were permissible, as the consultation agreement did not require the company to consult with the AMCU, and that the concerned employees were non-suited because it had been agreed that their claims were fully and finally settled and waived. The company’s defence was upheld and the AMCU thus filed an application to challenge the constitutionality of sections 23(1) and 189(1) of the LRA on the basis that they violated the right of freedom of association. The complainant submits that the Minister of Defence played an active role in opposing the AMCU’s claim throughout the process and the respondents contended that the principle of majoritarianism (as developed in the collective bargaining context) could also be used to retrench employees without consulting with their trade union and to hold them bound to a collective agreement with another trade union which extinguishes their right to challenge the fairness of their retrenchment. The Labour Court, the Labour Appeal Court and the Constitutional Court upheld the company’s defence.
4. 58. Firstly, the complainant argues that by promulgating the above sections of the LRA and defending the conduct of the company, the Government acted in breach of Conventions Nos 87 and 98 and that the majority judgment of the Constitutional Court failed to give effect to these Conventions and to the right of freedom of association. Instead, it puts forward the minority judgments which recognize the right of all minority unions to participate in retrenchment consultations as the failure to permit such participation undermines the right to freedom of association and thus fails to give effect to ILO Conventions. According to the complainant, forcing workers to be represented by a rival union is incompatible with freedom of association, even more so in the context of the country where the rivalry between the NUM and the AMCU is extreme and has on many occasions led to bloodshed. The involvement of minority unions is therefore fundamental to ensure a fair and equitable outcome.
5. 59. Secondly, the complainant considers that the ILO sets a higher standard of procedural fairness than that in sections 23 and 33 of the LRA by providing that non-parties should be given an opportunity to submit their observations or make representations before any extension of a collective agreement. The ILO, while promoting majoritarianism, also sets a higher standard than section 189 of the LRA, by providing that minority unions should be involved in at least making representations or having the right to speak. The complainant therefore alleges that the country’s extension and retrenchment consultation provisions clearly do not contain such safeguards, as illustrated by the AMCU, which was not given an opportunity to submit observations, make representation or even speak during the retrenchment consultations before the extension of the retrenchment agreement. The complainant also states that, in line with the Collective Agreements Recommendation, 1951 (No. 91), procedural rules need to allow for a transparent decision-making process in which due consideration is given to the views of non-parties to the agreement before the extension decision is taken.
6. 60. Thirdly, the complainant argues that the extension process permitted by section 23 of the LRA does not involve an independent agency and extensions are permitted between employers and majority unions in a process which is secret, lacks transparency and excludes minority unions. Objective, precise and pre-established criteria must be set in order to avoid any risk of bias or abuse in a context in which the most representative trade unions are given certain rights and advantages which are absent from section 23 of the LRA. The complainant submits that these are important safeguards to ensure proper protection of the right to freedom of association.
7. 61. Finally, the complainant submits that the law, as promulgated in sections 23 and 189 of the LRA and as interpreted by the Constitutional Court and supported by the Government, clearly discriminates against minority unions and their members by effectively banning them from participating in instances as in the present case.
8. 62. In line with the above, the complainant asks the Committee to request the Government to: (i) take immediate steps to reform its laws and provide expressly for minority trade unions to have the right to represent their members during retrenchment consultations and to submit observations, make representations and have the right to speak to the employer during retrenchment consultations irrespective of any extension of collective agreements to minority union members; (ii) ensure that extensions of collective agreements are supervised by an independent agency and set objective, precise and pre-established criteria for extensions in order to avoid any risk of bias, abuse or discrimination; and (iii) ensure that the company takes steps to reinstate the retrenched workers and to involve the AMCU in the consultation and extension process, or alternatively pay each of the AMCU’s members 12 month-compensation.

B. The Government’s reply

1. 63. In its communication dated 15 December 2020, the Government states that the complainant’s main allegation is that sections 23 and 189 of the LRA discriminate against minority unions and their members by effectively banning them from participating in the decisions to extend collective agreements to minority unions and their members and in retrenchment consultations. The Government summarizes the essence of the complaint to be to request the Government to apply the LRA in a manner which the complainant believes to be consistent with ILO Conventions, in particular to: (i) recognize the right of all minority unions to participate in retrenchment consultations; (ii) with regard to the standard of procedural fairness, provide that non-parties should be given an opportunity to submit their observations or make representations before any collective bargaining agreement is extended to them and provide that minority unions should be involved in at least making representations or have the right to speak during negotiations or consultations on retrenchments; and (iii) provide for the involvement of minority unions and a role for an independent agency in case of extension of collective agreements.
2. 64. The Government indicates that the complaint has been subject to judicial scrutiny at the national level at the Labour Court, the Labour Appeal Court and the Constitutional Court, which held that the LRA was in compliance with the South African Constitution and with ILO Conventions on freedom of association. It points out that the complainant recognizes the binding nature of the Constitutional Court judgments with regard to its complaint, as well as the promotion of majoritarianism by the ILO.
3. 65. With regard to the issue of retrenchment consultations, the Government emphasizes the judgment of the Constitutional Court which stated that “consultation is a statutory entitlement, flowing from the LRA, not a fundamental right enshrined in the Bill of Rights” and that it does not mean that “every union must be truly equal and enjoy each and every statutory entitlement, regardless of size”. The Government adds that section 189 of the LRA was drafted with a view to providing the fairest procedure for dismissals for operational reasons in compliance with international standards, including the Termination of Employment Convention, 1982 (No. 158) and the Workers’ Representatives Convention, 1971 (No. 135). It also considers that the proposed recommendations made by the complainant to include all minority unions in retrenchment consultations would create chaos in the workplace by introducing processes that not only undermine the principle of majoritarianism, but also add to an already lengthy process further processes that would undermine the requirement to conclude consultations expeditiously.
4. 66. The Government also indicates that the courts have held on numerous occasions that the hierarchy that governs the consultation process under section 189 of the LRA realizes the purpose of the law, which is the promotion of orderly collective bargaining. To allow a multiplicity of small unions to participate in retrenchment consultations under section 189 of the LRA would defeat the very purpose of promoting orderly collective bargaining. Furthermore, the exclusion of minority union members from retrenchment consultations does not create a disadvantage since it is an objective process that affects workers in a given category regardless of their union affiliation. In the specific case, all employees were equally represented by the recognized union, retrenchments were collective in nature with collective outcomes and the AMCU members were thus not going to influence the outcome any differently even if they had participated in the consultations.
5. 67. The Government adds that while the complainant alleges that sections 23 and 189 of the LRA clearly discriminate against minority unions and their members by effectively banning them from participating in instances as in the present case, this was not borne out by the judicial scrutiny of the relevant sections. In particular, the Constitutional Court held that “the LRA, though premised on majoritarianism does not make it an implement of oppression. It does not entirely suppress minority unions. Its provisions give ample scope for minority unions to organize within the workforce – and to canvass support to challenge hegemony of established unions. It is precisely because the LRA accords the AMCU these rights that the AMCU, as an insurgent force in the established union field, was able to increase its membership, its strength and its influence as powerfully as it has. And this is important in determining the extent of the limitation on rights that section 23(1)(d) imposes.” The Government therefore submits that the safeguards provided in sections 23 and 189 of the LRA sufficiently protect individuals and minority union members in the event of retrenchments and that these protections have been subjected to judicial scrutiny and were found sufficient and in compliance with international standards.
6. 68. In conclusion, the Government urges the Committee to find that there is no substance in the complaint since the laws are in compliance with ILO Conventions, provide sufficient safeguards for the protection of individual employees and minority unions also play a role in the implementation of the majoritarianism principle.

C. The Committee’s conclusions

1. 69. The Committee recalls that the present case concerns allegations of mass dismissals of the complainant’s members by a metal-producing company in the context of economic restructuring, where the complainant – a minority union – was excluded from the retrenchment discussions and was not given an opportunity to provide observations on the extension of the retrenchment agreement to its members.
2. 70. The Committee notes that there is no dispute with regard to the factual circumstances leading to the case, in particular that: (i) in 2015, the metal-producing company and two unions – the NUM representing the majority of the workers (56 per cent according to the complainant, 75 per cent according to the judgment of the Constitutional Court) and the minority UASA – concluded a collective agreement and later an addendum, in which the parties agreed to consult exclusively among each other over any dismissals for operational requirements; (ii) the consultation culminated in the signing of a retrenchment agreement, which was extended in terms of section 23(1)(d) of the LRA to employees who were not members of the parties to the agreement, in particular to members of the AMCU, and also contained a full and final settlement clause whereby all those party to the agreement waived their rights to challenge the lawfulness or fairness of their retrenchment; and (iii) as a result of the retrenchment exercise, a part of the workforce was dismissed (the complainant submits that the 103 dimissed employees were all members of the AMCU, while the judgment of the Constitutional Court indicates that 103 employees were dismissed, some of whom were AMCU members). The Committee observes, however, that there is a difference of opinion between the complainant and the Government on whether the exclusion of the complainant, as a minority union, from retrenchment discussions and from providing observations on the extension of the retrenchment agreement to its members, under sections 23(1) and 189(1) of the LRA, was in compliance with the principles of freedom of association and collective bargaining.
3. 71. The complainant for its part alleges that the application in practice of sections 23(1) and 189(1) of the LRA is contrary to the principles of freedom of association and collective bargaining in that it effectively bans minority unions from representing their members in case of mass retrenchments in circumstances where other unions have concluded a collective agreement with the employer and that forcing workers to be represented by a rival union is also incompatible with freedom of association, especially in the context of the country where the rivalry between the NUM and the complainant is extreme and has on many occasions led to bloodshed. The complainant therefore suggests that the right of all minority unions to participate in retrenchment consultations is fundamental to ensure a fair and equitable outcome.
4. 72. The Committee however notes that the Government contends that section 189 of the LRA was drafted with a view to providing the fairest procedure for dismissals for operational reasons in compliance with international standards, that the hierarchy that governs the consultation process realizes the purposes of the LRA, which is the promotion of orderly collective bargaining and that the recommendations made by the complainant to allow a multiplicity of minority unions to participate in retrenchment consultations would create chaos in the workplace by undermining the principle of majoritarianism and the requirement to conclude consultations expeditiously. The Committee observes that, according to the Government, the safeguards provided in the above sections of the LRA sufficiently protect individuals and minority union members in the event of retrenchment, even if they are excluded from consultations, since retrenchment is an objective process affecting workers in a given category regardless of their union affiliation and all employees in this specific case were equally represented by the recognized unions. The Committee further notes from both the complainant’s and the Government’s information that the substance of the case underwent judicial scrutiny by the Labour Court, the Court of Appeal and the Constitutional Court, all of which held that sections 23(1) and 189(1) of the LRA were in line with Conventions Nos 87 and 98, in that they promoted majoritarianism but also provided for safeguards of the rights of minority unions. The Courts held in particular that the legislator had opted for a system where a majority trade union, after concluding a collective agreement with an employer, enjoyed the exclusive right to be consulted during a retrenchment process and that the exclusion of minority unions from retrenchment consultations did not mean that their members were not represented.
5. 73. The Committee understands from the above that the main issue of the case is the extent to which minority unions can participate in negotiations with the employer on retrenchments affecting their members in the context of enterprise restructuring under section 189(1) of the LRA and whether, in the specific case of the complainant, its exclusion from the retrenchment consultations was in line with the principles of freedom of association and collective bargaining. The Committee observes that the legislation in the country opted for a system where the most representative organization enjoys privileges with regard to collective bargaining rights so as to facilitate orderly collective bargaining and that section 189(1) of the LRA establishes a hierarchy in the consultation process in case of mass dismissals, where the employer is firstly obliged to consult any persons required to be consulted as per a valid collective agreement and only in the absence of a collective agreement, should the consultations involve a workplace forum, any registered trade union whose members are likely to be affected by the proposed dismissals or the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose. The Committee recalls in this regard that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1351]. The Committee therefore considers that, as drafted, section 189(1) of the LRA is not per se incompatible with freedom of association in that, while giving priority in retrenchment negotiations to trade unions which have concluded a collective agreement with the employer, it also provides for consultations with other unions or directly with the concerned workers, in case no collective agreement providing for consultations had been concluded.
6. 74. The Committee takes due note of the complainant’s concerns that forcing workers to be represented by a rival union is incompatible with freedom of association, specifically in case of retrenchment discussions and given the particular context of strong union rivalry in the country. The Committee recalls that minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim [see Compilation, para. 545].
7. 75. The Committee further notes that the complainant also denounces the extension of the retrenchment agreement to its members, in that it holds the members bound to a collective agreement concluded by the employer with another trade union and extinguishes their right to challenge the fairness of their retrenchment, and alleges that the complainant was not given an opportunity to submit observations on the subject. In more general terms, the complainant alleges that the extension of collective agreements permitted by section 23(1) of the LRA does not involve an independent agency, that extensions are permitted between employers and majority unions in a process which is secret, lacks transparency and excludes minority unions and that objective, precise and pre-established criteria must be set to ensure proper protection of the right to freedom of association. The Committee observes that section 23(1) of the LRA allows the extension of collective agreements to employees who are not members of the trade union or trade unions party to the agreement if: the employees are identified in the agreement; the agreement expressly binds the employees; and the trade union or those trade unions (party to the agreement) have as their members the majority of employees employed by the employer in the workplace. The Committee understands that these conditions were fulfilled in the present case and recalls that when the extension of an agreement applies to workers who are not members of the signatory unions, this situation does not contradict the principles of freedom of association, in so far as it is the most representative organization that negotiates on behalf of all workers. The Committee observes that the arguments put forward by the complainant ignore the very basis of majority representation in collective bargaining to cover all workers so as to avoid differing treatment at the same workplace and to ensure orderly industrial relations. Moreover, the conditions for extension set out under Recommendation No. 91, referred to by the complainant, concern extension across an entire sector or territory which is of a quite different nature than the determination that a collective agreement concluded with majority representation in a given workplace would cover the entire workforce.
8. 76. In line with the above, the Committee considers this case closed and will not pursue its examination.

The Committee’s recommendation

1. 77. In the light of its foregoing conclusions, the Committee invites the Governing Body to consider that this case does not call for further examination.

Appendix

1. Section 23(1) of the Labour Relations Act  provides:
2. A collective agreement binds –
3. (a). the parties to the collective agreement;
4. (b). each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;
5. (c). the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates –
   • (i). terms and conditions of employment; or
   • (ii). the conduct of the employers in relation to the employees or the conduct of the employees in relation to the employers;
6. (d). employees who are not members of the registered trade union or trade unions party to the agreement if –
   • (i). the employees are identified in the agreement;
   • (ii). the agreement expressly binds the employees; and
   • (iii). that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.
7. Section 189(1) of the LRA states:
8. When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult –
9. (a). any person whom the employer is required to consult in terms of a collective agreement;
10. (b). if there is no collective agreement that requires consultation –
    • (i). a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and
    • (ii). any registered trade union whose members are likely to be affected by the proposed dismissals;
11. (c). if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or
12. (d). if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.