Instrument not subject to ratification;¹Work of international supervisory bodies² 

Collective bargaining/ Right to strike/ Non-union members/ Place of work/ Reference to international law to strengthen a decision based on domestic law

In this case, the Court examined the appeal lodged by the Association of Mineworkers of SA against the sentence of the court of the first instance, which had ruled in favour of the Chamber of Mines of South Africa. The ruling of the first instance declared valid the extension of the collective agreement signed between the Chamber of Mines, the National Union of Mineworkers, the Solidarity and the United Association of South Africato include workers who were not members of those organizations. The decision had been made in line with the provisions of article 23 (1) (d) of the Labour Relations Act (LRA), which had been interpreted in the sense that every mining company constituted a workplace. The Association of Mineworkers wanted the Court to recognize the fact that, since it had majority representation in five mines, it could embark on a new negotiation process with the Chamber with the understanding that each mine was an independent workplace. Alternatively, the Association called for the definition of a workplace contained in article 23 of the Labour Relations Act (LRA) to be declared unconstitutional, since it constituted an unfair restriction on the right to strike by denying the workers who were union members and covered by the collective agreement the possibility of exercising this right.

The Court considered that there was no incongruity or absurdity resulting from the application of the statutory definition, nor was there any injustice, and consequently it rejected the main claim of the Association. In relation to the secondary claim, the Court considered that, according to article 23 of the Labour Relations Act (LRA), the right to strike was by its nature subject to restrictions; however, the question in this case was to establish whether the restrictions given on the definition of a workplace were fair and reasonable. The Court considered that this restriction had its roots in a political decision on the part of the legislator to adopt a specific model of collective bargaining in the workplace, and since this had been a majority decision, it should be considered legitimate. The Court then underlined that since the restriction on the right to strike was possible in accordance with national and international standards, the restriction subject to the action was fair. In this regard, the Court observed that:

“[The ILO’s Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association]have interpreted Conventions Nos. 87 and 98 as to includea right to strike. [...] both [bodies] accept as a starting point that the right to strike is not absolute and that it may be restricted or, in exceptional circumstances, even prohibited.

Paragraph 142 of the General Survey on the fundamental Conventions concerning rights at work in the light of the ILO Declaration on Social Justice for a Fair Globalisation tabled at the 2012 International Labour Conference reads as follows: ‘[...] If legislation prohibits strikes during the term of collective agreements, this restriction must be compensated by the right to have recourse to impartial and rapid arbitration machinery for individual or collective grievances concerning the interpretation or application of collective agreements’”.³

Subsequently, and in relation to the extension of collective agreements, the Court indicated that:

“[…] the Collective Agreements Recommendation, 1951 (No.91) provides in Article 4 that ‘the stipulations of a collective agreement should apply to all workers concerned employed in the undertakings covered by the agreement unless the agreement specifically provides to the contrary.’ In a gloss on Recommendation 91, the Committee of Experts states at paragraph 245 of the General Survey that ‘extension of collective agreements is not contrary to the principle of voluntary collective bargaining and is not in violation of Convention No. 98’”.⁴

Based on the above, the Court concluded that the restriction of the right to strike created by the definition of the workplace contained in article 23 of the Labour Relations Act (LRA) was not unconstitutional, and that the aforementioned restriction was compatible with the principles of freedom of association defined by the ILO Committee of Experts and the Committee on Freedom of Association. The Court therefore dismissed the case of the Association of Mineworkers.