Is 'Workplace' an individual operation or the collective (Sect 213 (C)-LRA)?
CC#100319 Amcu vs SA Chamber of Mines (2017)
The LRA definition of ‘Workplace’ in Section 213 find special application in the context of trade unions seeking to exercise organizational rights. Freedom of Association is a constitutional right supported by the LRA, hence our legislation supports a system of collective bargaining for better wages and terms and conditions of employment. South Africa is well known for its well-established trade unions that plays an integral role in the wealth creation of our country. Even so, the labour market in South Africa is only about 40% unionized.
In terms of the LRA, a trade union seeking to lay claim to legislative organizational rights, should be a registered union with its members being sufficiently represented in the workplace. The LRA makes provision for trade unions that are mere sufficiently representative and those trade unions who has as its members the majority in the workplace. Majority trade unions may lay automatic claim to all five organizational rights found in the LRA. This, however, does not prevent a minority union from obtaining organizational rights through a process of collective bargaining.
But within what context then, should employers consider whether a trade union, seeking organizational rights, are sufficiently representative of its employees in the workplace? Afterall, the LRA does not define a sufficiently representative trade union. Representativity is defined within the context of the collective in the workplace. Even though lower thresholds have been accepted, the question often arises as to what is considered the workplace? Often employers are challenged with smaller trade unions seeking organizational rights at one of its branches, whereby the unions claim that a majority of the employers’ staff are members of the union. But, is it really such a simple matter that a union can lay claim to being a sufficiently or majority trade union within a company in circumstances where the employer operates numerous branches within an industry? Can a trade union claim they are sufficiently represented if they merely have employees at a particular branch listed as members of the union. It indeed may be the case!
In Amcu vs SA Chambers of Mines, the Constitutional Court addressed this matter. The dispute before the court was, at large, based on the applicant being aggrieved against what they regarded as the unconstitutionality of section 23 (1)(d) of the LRA, which effectively limits a minority trade union from embarking on strike action in circumstances where the majority union/s concluded a collective agreement that regulate a certain matter in dispute. Section 23 (1)(d) effectively prevents strike action in such circumstances if the parties to the agreement have extended the terms of the agreement to non-parties. At the heart of this dispute was the application of the definition of ‘workplace’ in terms of Section 213 of the LRA as in order to ‘lock’ a minority union out from embarking on strike action, the union/s who are party to the agreement, must have as its members the majority in the workplace.
Section 213 defines workplace as –
(c) in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”.
Amcu, one of the competing unions within the chamber of mines, has as its members the majority in five of the mines, however in totality it was a minority union. Amcu’s claim at the courts was that the interpretation of the definition of workplace should be broadly interpreted to mean that individual operations should be considered as workplace, hence they will not be locked in to the collective agreement as they themselves will then be the majority union in each of these five mines.
Does the definition of ‘workplace’ mean all the mines of the Chamber member companies overall where Amcu was in the minority, or the individual goldmines, where it had the majority? Of note is that the definition focus on employees as a collective and that location, in itself, is immaterial. ‘Workplace’, thus, has a special meaning. Workplace is not the place where any single employee works, like the individual’s workshop, desk or office. It is where the employee of an employer, collectively work. This then supports the objectives of the statute of orderly collective bargaining.
Location is not primary, functional organization is. This then means that the ‘place’ or ‘places’ where workers work may constitute as single workplace. A default rule is thus that regardless of the places (one or more), where employees work, they are all part of the same workplace, but, that different ‘operations’ may be different workplaces only if they meet the criteria as defined. That is whether an operation is independent, not where it is located. Thus, each independent operation may constitute a separate ‘workplace’.
“Hence the proviso determines not so much whether separate physical places of work are separate workplaces, but rather whether independent “operations”, however geographically dispersed, are separate workplaces. The pivotal concept is independence. If there are two or more operations and they are “independent of one another by reason of their size, function or organisation” then “the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”. This is a test of functional organisation, and not geography or location. It requires one to determine whether the employer companies conduct two or more operations “that are independent of one another by reason of their size, function or organisation”.
In casu, each mining company (not single mine) constituted a single industry-wide workplace.
The clarification then given by the Constitutional Court is that it is not the location of the operation that is key, but whether each operation conducts its function independent of each other or as a collective. At many chain stores, as example, one will find that the group’s organization and functionality operates as a unit. As such, the entire group is considered as a single workplace. If a company, however, has branches that are independent from its other in terms of its operation or function, then each independent unit may be regarded as a workplace, independent from each other.
It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Senior Labour Relations Specialist for Ulwazi Labour Relations and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512 or visit:www.ihconsult.co.za/labour/