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”.
Framework
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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
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.
Introductory remarks
 During the course of this presentation I will argue that
section 18 of the LRA:
o falls foul of international labour standards on the right to
freedom of association and the right to organise;
o results in the unlawful and unconstitutional infringement on
the constitutional right to freedom of association;
o results in the unlawful and unconstitutional infringement
on the right to organise; and
o cannot constitute a reasonable and justifiable limitation of
these rights, as contemplated by section 36(1) of the
Constitution.
Majoritarianism and pluralism
 The model of majoritarianism bestows a degree of primacy
on unions with majority membership (at least 50%+1) in a
workplace.
(Van Niekerk et al Law @ Work 361 )
 Pluralism can be described 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 al Labour Relations Law 246.)
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.
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).
The majoritarian approach of the
LRA
 Zondo JP (as he then was) in the matter of Kem-Lin Fashions
CC v Brunton & another confirmed this policy 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)
Section 18 and its impact on
minority trade unions
 Section 18(1) of the LRA states as follows:
”An employer and a registered trade union whose members
are a majority of the employees employed by that employer in
a workplace, or the parties to a bargaining council, may
conclude a collective agreement establishing a threshold of
representativeness required in respect of one or more of the
organisational rights referred to in sections 12, 13 and 15.”
Section 18 and its impact on
minority trade unions
 Section 18(2) of the LRA provides as 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.
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.
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.
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.
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.
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)
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.
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
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).
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.)
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.)
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)
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.)
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]
o The right to organise [section 23 (4)(b)]
 The limitation of rights [section 36]
 Section 39(2)
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.
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.
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.”
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).
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.
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.
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.
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:
o the nature of the right;
o the importance of the purpose of the limitation;
o the nature and extent of the limitation;
o the relation between the limitation and its purpose; and
o less restrictive means to achieve its purpose.
Thank you/ questions