Employment law tips for the mining sector

The Constitutional Court (in the matter of Association of Mineworkers and Construction Union (AMCU) and Others v the Chamber of Mines of South Africa and Others1) has recently handed down an important judgment related to employment law. The judgment is likely to be of particular interest to the mining sector and companies who have multiple operations.

In summary, the judgment:

– enforces the importance of the principle of majoritarianism enshrined in the Labour Relations Act; and
– once and for all, clarifies the definition of the term “workplace” as including, not just one – but all operations of each respective mining company.

By way of background, in 2013 following centralised wage negotiations at the Chamber a multi-year wage agreement was concluded between the mining companies and the majority trade union in the mining industry, the National Union of Mineworkers, as well as the smaller trade unions, Solidarity and UASA. The wage agreement was extended to AMCU members in terms of section 23(1)(d) of the Labour Relations Act.

AMCU objected to this extension and claimed that its members were prevented from going on strike in demand of higher wages. AMCU argued that because it had majority representation at certain individual mining operations the wage agreement could not be extended to the employees at these operations and that the definition of “workplace” is limited to individual operations and not the entirety of the mining companies’ respective operations. AMCU also challenged the constitutionality of section 23(1)(d) of the Labour Relations Act, claiming that it unfairly limited the right to strike.

The mining companies argued that the “workplace” included, within each company, the entirety of all its individual operations and that the wage agreement was validly extended to AMCU, a minority trade union. They also argued that the extension of the wage agreement was constitutionally valid and that the Labour Relations Act was premised on the application of the principle of majoritarianism.
The Constitutional Court held that the agreement was validly extended to AMCU members at the AMCU-majority mines‚ and the applicable provisions of the Labour Relations Act were constitutionally compliant. The court also accepted the mining companies’ interpretation of the term “workplace” as correct.
This is an important decision in so far as it enforces the importance of the principle of majoritarianism enshrined in the Labour Relations Act. The decision also usefully provides, once and for all, confirmation of the definition of the term “workplace”.
Johan Olivier and Prévot van der Merwe at Webber Wentzel.

1 Acting on behalf of Harmony Gold, AngloGold Ashanti and Sibanye.
2 In doing such the Constitutional Court also upheld the decision of the Labour Appeal Court in this matter.

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