Majoritarianism, South African courts have acknowledged, is the concept that the will of the majority is favoured over the will of the minority in serving the legislative purpose of advancing labour peace, orderly collective bargaining and the democratisation of the workplace. But a fundamental pitfall of majoritarianism is the possibility that the rights of the minority could be infringed pursuant to the will of the majority.

This possibility was illustrated on 30 September 2015, when a group of employees arrived at work only to be told that they had been retrenched. The employees had not been engaged in a meaningful joint consensus-seeking consultation process prior to being retrenched as required by section 189 of the Labour Relations Act, 1995 (“LRA”).

Section 189(1) of the LRA provides that:

“(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-

(a) any person whom the employer is required to consult in terms of a collective agreement;

(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;

...”

The constitutional validity of section 189(1) of the LRA was called into question in Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others. In this case, the Constitutional Court was called upon to determine whether a collective agreement providing a majority trade union with the exclusive right to be consulted with when the employer contemplates dismissing employees due to its operational requirements passes constitutional muster.

At the time, the National Union of Mineworkers (“NUM”) represented a majority of employees employed at Royal Bafokeng Platinum Limited’s workplace. UASA (formerly known as the United Association of South Africa) and the Association of Mineworkers and Construction Union (“AMCU”) enjoyed minority support in the workplace. AMCU represented approximately 11% of employees at Royal Bafokeng’s workplace.

NUM, UASA and Royal Bafokeng entered into a collective agreement in terms of which the parties agreed to consult exclusively over any dismissals related to Royal Bafokeng’s operational requirements. In August 2015, Royal Bafokeng, after issuing employees with notices in terms of section 189(3) of the LRA, commenced consultations with NUM and UASA, to the exclusion of other trade unions (including AMCU), in accordance with the collective agreement.

The consultation process resulted in NUM, UASA and Royal Bafokeng concluding a further collective agreement in terms of which Royal Bafokeng dismissed 103 employees (some of whom were AMCU members) for reasons related to its operational requirements (the “retrenchment agreement”). The retrenchment agreement was extended to employees who were not members of NUM or UASA, including members of AMCU, in terms of section 23(1)(d) of the LRA. It also contained a clause in terms of which the members of the NUM and UASA, and those members of AMCU to whom the retrenchment agreement was extended, waived their rights to challenge the lawfulness or fairness of their dismissals.

The Labour Court decision

AMCU thereafter challenged the fairness of their members’ dismissals. At the Labour Court, AMCU sought to challenge the constitutionality of section 189(1) and section 23(1)(d) of the LRA. AMCU also sought to have the retrenchment agreement (and its extension) set aside on the basis of the principle of legality, which requires the exercise of public power to be rationally linked to the purpose for which the power was granted. The Labour Court found that sections 23(1)(d) and 189(1) did not violate any constitutional rights. However, the Labour Court did not pronounce on the relief sought by AMCU to have the retrenchment agreement set aside. AMCU appealed against the Labour Court’s judgment and sought the same relief on appeal.

The Labour Appeal Court decision

In the Labour Appeal Court (“LAC”), AMCU requested that sections 189(1) and 23(1)(d) be constitutionally interpreted to provide that an employer is obliged to consult with minority trade unions, irrespective of whether there is a valid collective agreement between an employer and a majority union that states otherwise. In particular, AMCU’s challenge was aimed at the application of the principle of majoritarianism to the retrenchment process. The LAC found no merit in AMCU’s argument that the principle of majoritarianism played no role in the retrenchment process. Accordingly, the LAC dismissed AMCU’s appeal in its entirety. AMCU thereafter appealed to the Constitutional Court and persisted with the relief sought in the LAC.

The Constitutional Court decision

In the Constitutional Court, AMCU argued that, by creating an exclusive consultation regime, section 189(1)(a) of the LRA infringes minority unions’ and non-unionised employees’ rights to fair labour practices guaranteed in terms of section 23(1) of the Constitution of South Africa. This is because it excludes them from the very process that determines their fate.

Royal Bafokeng relied on the primacy that collective bargaining is afforded in terms of the LRA and accordingly argued that there is no need to interfere with the principle of majoritarianism. This, they argued, is because the retrenchment process is a collective one and the rights in issue are therefore collectively held.

The Constitutional Court found that the constitutional challenge to section 23(1)(d) of the LRA should be dismissed because AMCU failed to show that the section infringed on any of their members’ constitutional rights.

Insofar as the challenge to section 189(1) is concerned, Froneman J, writing for the majority of the Constitutional Court, found that there was no entitlement to individual consultations under section 189 of the LRA. Furthermore, section 23(1) of the Constitution, which provides that every employee has the right to fair labour practices, does not expressly or impliedly guarantee a right to be individually consulted in a retrenchment process. The Constitutional Court also found that:

  • one of the objects of the LRA is to give effect to the fundamental rights conferred by section 23 of the Constitution and that is given effect to in chapter VIII of the LRA, which deals with unfair dismissals and unfair labour practices;
  • the procedure for dismissals based on operational requirements is exhaustively set out in section 189 of the LRA which excludes any requirement of individual or parallel consultation in the retrenchment process outside the confines of the hierarchy section 189(1) itself creates;
  • the consultation process (and the hierarchy prescribed section by 189(1)) is procedurally fair and accords with international standards; and
  • compliance with section 189 of the LRA (which will render any dismissals procedurally fair) does not mean that the substantive unfairness of dismissals related to operational requirements may not be challenged.

The Constitutional Court accordingly found that a majority-driven collective bargaining process passes constitutional muster in the context of a retrenchment and that no right to further individual or dual consultation outside of the hierarchy prescribed by section 189(1) exists. In the circumstances, the court found that a retrenchment agreement could lawfully be extended across the workplace to apply to persons who were not consulted during the consultation process. The Constitutional Court found that the provisions of section 189(1) of the LRA were not unconstitutional, nor were they irrational, and it accordingly dismissed AMCU’s application for leave to appeal.

The judgment of the Constitutional Court can be considered as another victory for the principle of majoritarianism in the South African labour relations dispensation.

Reviewed by Lauren Salt, an Executive in ENSafrica’s employment department.