2020 volume 4 p 777

• Published date: 14 October 2020
• Date: 14 October 2020

[ISSN 0257 – 7747] TSAR 2020

. 4

777

Aantekeninge

AN UPDATE OF RECENT LABOUR LAW DEVELOPMENTS FROM

SOUT H AFRICA N COURT S 2020

1 Introduction

2 Collective bargaining

3 Unfai r labour practices

4 Unfair dismissals

5 Compensation

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7 Fixed-term contracts

8 Retirement age

9 Cond itions of employment

10 Jur isd ict ion

11 Contr act of employment

12 Unfair discriminat ion

1 Introduction

This contribution summarises and discusses recent developments from June 2019

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interesting judgments delivered by South African courts on the labour law issues

listed above. The judgments discussed herein have been selected because they

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2 Collective bargaining

2.1 Majoritarianism

The constitutional court in AMCU v Royal Bafokeng Platinum Ltd was called upon

to conside r if there is an oblig ation upon employers t o consult with m inority union s

or individual employees during ret renchment consultation processes (2020 3 SA 1

(CC)). The employer operated a mi ne in which the majority of the employees were

members of the National Union of Mineworkers (N UM) and the United Association

of South A frica (UASA). However, se veral employees sw itched union s and became

members of the Association of Mineworkers and Const ruction Union (AMCU).

In terms of a collective agreement, the employer recognised NUM and UASA for

bargaining purposes and extended operational rights to them – to the exclusion

of AMCU. The employer undertook only to consult with NUM and UASA on the

retrenchment of employees. The retrenchment agreement reached by the employer,

NUM and UASA was extended to all other minority unions and employees in terms

of the collective bargaining agreement.

Section 23(1)(d) of the Labour Relations Act 66 of 1995 (the act) allows an

employer and a majority trade un ion to conclude and extend a collective agreeme nt

to employees or members of a union that are not par ty to the agreement. Section

189(1) provides for employers to consult with workers or any workplace forum

before retrenching. Section 189(1) excludes consultation with any trade union not

2020 TSAR 777

© Juta and Company (Pty) Ltd

TSAR 2020 . 4 [ISSN 0257 – 7747]

778 VAN STA DE N

mentioned in the collective agreement where one has been concluded. AMCU

approached the constitutional court to challenge the constitutionality of these

sections after the labour cou rt and the labour appeal court refused to overturn the

dism issal of 103 of its m embers.

The majority of the court p er Froneman J amazingly held that, although section

23(1) of the Constitution of the Republic of South Africa, 1996 provides that

everyone has the right to fair labou r practices, this provision does not expressly or

by implication guarantee a right to be individually consulted i n the retrenchment

process (par 101). The majority held that neither the constitution nor the act provides

textual or contextual support for any individual right in t he consultation process

(par 118). Without reference to any authority for its presupposition, the majority

held that the right not to be unfai rly dismissed is sourced from the act and not t he

constitution (pa r 104). The majority averred that even if sect ion 189(1) did limit the

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of section 36 of the constitution (par 130). The majority however did not engage

in an analysis based on the factors listed in section 36 to justify their conclusion.

They held that it would be counter productive to allow for individual con sultations

instead of consultations w ith majority unions, as an individual employee, or even

a group of individual employees, has scant bargaining clout, particularly where the

employer is preoccupied with processing dismissal for operational requirements. A

majority union, by contrast, wields coercive power, by immediate or future th reat

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on retrenchment, or bet ter yet, fewer or no dismissals (par 121-122). The majority

therefore held that there is no procedural u nfairness in the consult ation process

under section 189.

The minority of the cou rt per Ledwaba AJ, by contrast , held that section 189(1) was

unconstitutional, as it limited the right to fair labour practices guaranteed in section

23(1) of the constitution (pa r 99). The minority held that the right to individual

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(par 65). The minority t herefore proposed that section 190(1) should be declared

invalid and remedied to include a right of consultation for minority unions and

individual employees.

The proposition of the majority decision, that the right not to be u nfairly dismissed

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has previously held that the right to fair dism issals is essential to the constitutional

righ t to fair labour practic es. In National Ed ucation Health & Allied Workers Union

v University of Cape Town it was stated: “In my view the focus of section 23(1) is,

broadly speaking, t he relationship between the worker and the employer and the

continuation of that relationship on te rms that are fair to both” (2003 3 SA 1 (CC)

par 40).

Because section 189(1) excludes consultation with any tr ade union not mentioned

in the collective agreement where one has been concluded, it ostensibly violates

several constitutional r ights, such as the rule of law; the right to equal ity; the right

to dignity; the right to freedom of association; the right to fair labour practices and

the right of access to in formation. The l imitation of these rights is generally held to

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prioritises majority unions over minority unions, aims to achieve and to promote

orderly collective bargaining whilst advancing economic development, social

justice, labour peace and demo cratisation of the workplace (s 1 of the act).

The constitutional cou rt has however held that majoritarianism does not exclude

the existence and operat ion of minority unions and that majorit arianism is allowed to

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