ARE THE IMPACTS OF MAJORITARIANISM ON MINORITY TRADE UNIONS

UNCONSTITUTIONAL?

By

Submitted in partial fulfilment of the requirements for the degree

BACHELOR OF LAWS

in the

DEPARTMENT OF CRIMINAL AND PROCEDURAL LAW

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

In Jesus name

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 ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.
2. I declare that this assignment is my own, original work. Where I have
used someone else’s work, I have indicated this by using the prescribed
style of referencing. Every contribution to, and quotation in, this
assignment from the work or works of other people has been referenced
according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.

NAME:
SIGNATURE:
………………………………………………………………….………………….
STUDENT NUMBER:
MODULE CODE: RRLLB81
DATE:
TOPIC SELECTED: MERCANTILE LAW: Topic 2: Labour Law
THE IMPACT OF THE PRINCIPLE OF MAJORITARIANISM AS PROMOTED BY
THE LABOUR RELATIONS ACT 66 OF 1995 ON WORKERS AND MINORITY
TRADE UNIONS
MARK RECEIVED FOR ASSESSMENT 1:
MARK RECEIVED FOR ASSESSMENT 2:

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 ARE THE IMPACTS OF MAJORITARIANISM ON MINORITY TRADE UNIONS
UNCONSTITUTIONAL?

ABSTRACT

The statues and values entrenched in both the Constitution, as well as the Labour
Relations Act allow for trade unions and trade union workers to (peacefully and
legally) enforce change and to radically transform the circumstances within their
respective workforces. The principle of majoritarianism however, may pose a threat
to said values embedded in this specific legislation. There is clear evidence that the
impacts of majoritarianism have categorically negative consequences on minority
trade unions and minority trade union workers. The impacts of majoritarianism
directly impact the way in which minority enjoy basic fundamental rights within their
workspaces. It effects their freedom of association, their right to collective
bargaining, and the privileges of organisational rights. When an individual’s right to
equality within the workplace is compromised, an investigation must be done into the
constitutionality of the existing principles in place. This study sets to investigate
whether the principles of majoritarianism are unconstitutional.

KEYWORDS

majoritarianism, unconstitutional, organisational rights, minority, equality, trade

unions

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LIST OF ABBREVIATIONS AND ACRONYMS

LRA Labour Relations Act

AMCU Association of Mineworkers & Construction Union

NUM National Union of Mineworkers

CCMA Commission for Conciliation, Mediation and Arbitration

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 TABLE OF CONTENTS

Title entry Page number

1. Problem statement……………………………………………………………………….6

2. Hypothesis……………………………………………………………………………......6

3. Introduction……………………………………………………………………………….7

4. Majoritarianism and Collective Bargaining……………………………………………8

5. Freedom of Association………………………………………………………………...9

6. Organisational Rights…………………………………………………………………..11

7. Minority trade unions……………………………………………………………………13

8. Conclusion……………………………………………………………………………….14

9. Bibliography……………………………………………………………………………...15

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1 - Problem statements

 Investigation upon the unconstitutionality of the principles of majoritarianism.

 Are the consequences of majoritarianism effecting the integrity of the
principles of equality entrenched in the Constitution?
 How does one define the dynamics in a trade union? i.e., major vs minority
trade workers.
 Do minority unions fully enjoy the same legislative freedoms established in the
Constitution and in the LRA, as those of the majority unions?
 Is there a resolution to the negative effects of majoritarianism?

2 - Hypothesis

The following investigation presumes that the impacts of majoritarianism on minority

trade unions supposes a threat to the values and principles kept by Constitution of
South Africa. The effects of majoritarianism aid in debilitating certain rights of
minority trade workers by effecting their capacities in bargaining, freely associating
and general equality in the workplace.

This research presumes that the principles of majoritarianism are supported by

South African legislation, local courts, and the Constitution. Due to the existence of
these obvious statutory obstacles, and institutions, this research further submits that
this is a negative and clear bias against minority trade union workers. Furthermore,
upon investigation this research will offer that the impacts of majoritarianism are not
only negative but also unconstitutional to minority trade unions.

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3 – Introduction

To quote author Leo Tolstoy, ‘Wrong does not cease to be wrong because the
majority share in it1.’ The fundamental concept of this quotation will be pertinent
throughout this research.

South Africa’s historical social context is important to consider, as this Republic’s

Constitution and values entrenched within it are to be regarded and preserved
throughout social and economic practices invariably. The Republic’s Constitution,
more specifically Section 23 therefore, advocates and safeguards the rights of
workers to form and additionally join trade unions (freedom of association). It is quite
evident and glaringly obvious to survey that the legislation set forth in the LRA holds
firm bias for majoritarianism. Individuals that are considered part of the majority rule
of a trade union enjoy the rights of freedom of association, organisational rights and
collective bargaining, among other benefits. The LRA further maintains statutory
constraints for minority trade unions. Organisational rights may aid unions in building
up a presence in the workplace2. However, minority trade unions, do not meet certain
(statutory) thresholds allowing them to derive any satisfaction from organisational
rights. The limiting effects of these statutory barriers directly and negatively impair
the advancement and the capacity of minority trade unions. Thus, having adverse
effects on their ability to (fairly) collectively bargain and their right of freedom of
association, a doctrine which is established in this Republic’s Constitution. Moreover,
this begs the question of whether the impact and ramifications of majoritarianism on
minority trade unions are likely unconstitutional or in conflict with Section 23 of the
Republic’s Constitution. It must be emphasised that a degree of unconstitutionally
exists when the legislation directly detailed in the Constitution is not actively upheld.
This fact cannot be sugar-coated and dismissed.

This study sets out to investigate whether the legislation set out in Section 23 of the
Constitution are in direct conflict with the statutory limitations outlined in LRA for
minority trade unions. Additionally, this study will establish whether the obstruction of
the rights (being) freedom of association, organisational rights and collective
bargaining is unconstitutional to minority trade unions.

4 – Majoritarianism and Collective Bargaining

1
A Confession (1882) page 21.
2
Garbers The New Essential Labour Law 409.

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Majoritarianism, plainly, as defined by the Constitutional Court, majoritarianism is the
will of the majority and reigning over will of the minority 3. Although seemingly simple
to understand, the root of the principalities of majoritarianism are that rights of the
minority may (possibly) be infringed in pursuit of the will of majority 4. In the Chamber
of Mines case5 distinguished at minimum a few principles of the LRA in relation to
majoritarianism6: It emphasised that the legislation in section 23 was not an
oppressive tool for minority trade union but still allowed for them to exercise
organisational rights. This showed favour for the principles of majoritarianism and
generally minimised the reality of the obstacles that minority trade unions face.
Regarding legislature, section 23(1)(d) of the LRA expressly dictates:

"A collective agreement binds ... employees who are not members of the registered trade
union or trade unions party to the agreement if-

i. the employees are identified in the agreement;

ii. the agreement expressly binds the employees; and

iii. that trade union or those trade unions have as their members the majority of employees
employed by the employer in the workplace."

In its essence, this would in turn bound minority trade union members to the
conditions made by collective bargaining effects without their authorisation.
Moreover, section 65 of the LRA, another statutory limitation for minority trade unions
to overcome, sets out that striking is prohibited in by individuals that are bound in
collective agreements. A theme of suppressing minority trade unions efforts is
seemingly concerning throughout the LR Act.

Any South Africa native is not naïve to the effects that strike violence, and uproar
caused when trade unions when they are undertaking collective bargaining efforts
and exercises within their workplaces. The trade unions conduct and endeavours
have a substantial impact on the economy and health and safety of South Africans at

3
Transport & Allied Workers Union of SA v Putco Ltd 2016 (4) SA 39 (CC) (Putco) par 61.
4
Defining majoritarianism (see Braatvedt and Van Wyk).
5
Association of Mineworkers & Construction Union v Chamber of Mines of SA (2017) 38 ILJ 831
(CC).
6
Le Roux, R: The tentacles of majoritarianism, par 7.

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large7. The effects of strikes include death 8, damage to property, and general unrest
and fear amongst citizens. The argument presented is that minority union workers do
not share the sentiments as that of their majority colleagues, yet more often than not
are bound by the same consequences of the majorities trade union operations. i.e., a
result of unemployment by the company. The mining sectors, namely AMCU and
NUM, can attest that the relationship between minority trade union groups and
majority union groups is a rather hostile and contentious relationship.

In the case of POPCRU v Ledwaba9 it saw the employer, the Department of

Correctional Services, conducting collective bargaining with POPCRU (majority
union) note that (minority union) SACOSWU was not a part this. Simplified, the
employer and the majority group, for a period of 5 years, agree on thresholds for
representativeness and organisational rights. These agreements applied to all
employees (minority group) regardless of their membership status, under Section
23(1)(d).

The minority group decides to enter into a collective agreement with the employer to
grant itself organisational rights. As a group they do not meet the representativeness
threshold, however the bargaining council arbitrator determined that the agreement
is valid under Section 20 of the LRA, after the majority group contests it (the minority
group was awarded organisational rights during this time). Eventually, the courts rule
in favour of the majority group and discount all agreements and rights afforded to the
minority group.

Digressing, an enquiry is posed that minority trade unions do not enjoy the same
advancement of their agenda as those of a majority trade union groups do.

5 - Freedom of Association

In this Republic, the doctrine of freedom of association is highly regarded and well
protected. It consists of two dimensions: shielding employees from state infringement
of this right and safeguarding their freedom of association against employer
encroachments. The LRA and the Constitution plays a pivotal role in ensuring

7
T Cohen, ‘Limiting organisational rights of minority unions: POPCRU v Ledwaba 2013 11 BLLR 1137
(LC)’.
8
According to figures compiled by the South African Institute of Race Relations (SAIRR) it sees nearly
200. people being killed due to strike action (see Windgrin 2013).
9
POPCRU v Ledwaba 2013 11 BLLR 1137 (LC) [2014] PER 60.

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employers do not infringe upon employees' freedom of association. Consequently,
the right to freedom of association applies to all employees (every citizen that
participates in society generally), regardless of their affiliation with majority or
minority unions. This is important, minority trade union groups are intended to enjoy
this right of freedom liberally. Freedom of association must be understood as a
constitutional functional guarantee that secures an equilibrium between workers and
employees in regard to bargaining authority 10. Essentially this doctrine is for the
protection of labourers to protect and uphold their joint concerns and objectives11.

Section 18 and 23 of the Constitution speak directly to advocacy of the freedom of

association. Section 18 speaks to the legislation that grants ‘every individual’ the
right to enjoy this freedom of association, with that it is necessary to emphasise that
minority are not excluded in this. It is evident that this is not a statutory hurdle that
minority trade union groups need to overcome, in fact it supports that all workers
may associate where they see fit within their beliefs and general goals within the
workplace. What’s more, section 23 of the Constitution commands the absolute
protection of this right. Companied by the section 4 of the LRA is says:

“Every employee has the right –

(a) to participate in forming a trade union or federation or trade union; and

(b) to join a trade union, subject to its constitution.”

With worthy mention to section 5(1) of the LRA conditions that no person may
discriminate against an employee that exercises any right contained within the LRA,
i.e., freedom of association. In line with the legislative force commitment to
international labour standards, the government ratified two ILO Conventions in 1996:
Convention 87 and Convention 98. In cooperation, these conventions safeguard the
agenda of the freedom of association. The right of the freedom of association is a
positive right12, hence, in turn the right to not associate (not to join) is also available
to employees.

Through academic observation, it has been established that there are three main
components of the freedom of association 13 they are namely: The right to form and
10
Von Prondzynski Freedom of Association and Industrial Relations 225.
11
McGregor Labour Law Rules 236.
12
Garbers The New Essential Labour Law 403.
13
Summers Freedom of Association and Compulsory Union Membership in Sweden and the United
States 647.

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join trade unions; the right to organize and bargain collectively; the right to strike.
Although, with a surface level telescope, one might agree that minority trade union
groups do in fact have the freedom to associate and the privileges that come with
that, again this study acknowledges that the is never a moment where minorities are
denied rights with a labour relational context. Instead, this research simply brings to
the forefront that these rights are enjoyed differently (by minority and majority
groups) and that may be unconstitutional, as there is an aspect of harmony and
equality that is lacking in regard to the statutory deterrent minority trade unions need
to triumph over to simply to heard and make necessary change in their workspaces.

6 – Organisational Rights

By academic defintion14 the purpose of organisational rights granted to unions by

LRA to enable them to function more effectively and offer support to workers. The
CCMA promotes that organisational rights are there to enable unions to organise and
represent workers at their workplaces15. Therefore, it is safe to say that
organisational rights are there for the benefit of union workers, so that they may be
on equal footing (statutorily) as their employer.

There are predominantly five organisational rights16 that workers may make use of,
namely trade union access to the workplace 17, the deduction of trade union
membership subscriptions18, the recognition of trade union representatives 19, the
granting of leave for trade union office bearers (for union activities) 20, and lastly the
right to gain access to information held by the employer21.

The realisation however, is that a representativity threshold exists and these rights
are not accessible by every single union/union member. Representation can be
upheld through majority representation and sufficient representation, however
defining sufficient representation is where the confusion arises among the law as

14
McGregor Labour Law Rules 244.
15
CCMA Info Sheet: Organisational Rights.
16
Garbers The New Essential Labour Law 406.
17
Section 12 of LRA.
18
Section 13 of LRA.
19
Section 14 of LRA.
20
Section 15 of LRA.
21
Section 16 of LRA.

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there is no set rule. Majority representation is defined as a union that represents 50%
+ 1 or more of all employees in the workplace.

Section 18 of the LRA sets the premise that an employer and the majority union can
enter into a collective agreement, and essentially agree on a level of representativity
that will need to be met in order to access these rights. This is obviously
controversial because this power can be abused22, potentially leaving minority unions
without representation and rights.

Section 21(8A)(a) to (b) of the LRA support that the arbitrator commissioner has the
authority to essentially grant rights regardless of any collective agreements made
between the employer and majority unions. In the following cases, it is established
that the commissioner sets to define sufficient representation on a case by case
basis.

In SA Clothing & Textile Workers Union vs Sheraton Textiles Pty (Ltd), the union had
30% representation in their workplace. The commissioner accepted ‘30%’ a general
figure to define sufficient representation, and further said that a union should be
regarded as sufficiently represented should they have the power to ‘influence
negotiations, the financial interests, peace and stability of the industry’. Note, 30%
was not a stable or conclusive figure in determining sufficient representation.

However, in some cases unions with lower than 30% representation have still been
regarded as sufficiently representative. In the case of the National Union of
Metalworkers of South Africa v University of Johannesburg & Others, a percentage
of 16 was considered adequate to grant sufficient representation and rights.

The commissioner also considers the number of unions within the collective
agreements. In the case of Financial Sector & Allied Workers Union of South Africa
obo Members v Assmang Beeshoek Mine, the commissioner disputed the collective
agreement as it did not meet the threshold agreement set out in section 18 (of the
LRA) and had been concluded by more than one union.

In Abanqobi Workers Union v Magma Security CC [2017] 6 BALR 609 (CCMA), the
commissioner considered that there was a high labour turnover in that industry, when
he came to define the union as sufficient.

22
Garbers The New Essential Labour Law 413.

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The cases above are not a takeaway of success on behalf of minority unions. The
lack of knowhow when addressing sufficient representation, means that minority
unions cannot participate in collective bargaining in the workplace. The right to fair
labour practice is protected by section 23 of the Constitution. Scholar Malan notes
that if the entrenched rights in this section of the Constitution are not given effect to,
the democratic integrity of the Constitution, as entrenched in section 1 thereof, is
compromised23. Yes, there are remedies available to minority unions however the
legislative legwork to get through is incredible compared the privileges afforded to
majority unions.

It cannot be candied that the principle that minority unions cannot participate freely
and fairly in the workplace, there is an absence of equality. If there is an absence of
equality, the surely the doctrines of the Constitution are not actively being upheld, in
turn threading a dangerous line of unconstitutionality.

7 - Minority trade unions

The impacts of majoritarianism, goes without saying, have negatively impacted

minority trade union groups in the workplace forums, in efforts of bargain counselling
and closed shop agreements.

The doctrine of closed shop agreements is contained in section 25 of the LRA and by
its core alludes to ‘a collective agreement between a majority trade union and an
employer, and further dictates that employees must be members of that majority
trade union’24. With that, note that now employees covered by a closed shop
agreement, this completely eliminates the conviction of freedom and association.
Furthermore, and controversially, in section 26(6) of LRA is provides that should an
employee not form part of a union, it may result in a (legally sound) dismissal. As
Garber25, puts it, that completely takes away the freedom of choice within a
workplace, i.e., diminishing the freedom of association. The provision in section 26 of
the LRA threatens the values of freedom and discrimination set within the
Constitution, and again begs a degree of unconstitutionality, closed shop
agreements directly limit minority trade unions freedom to associate. This goes

23
Malan 2010 TSAR 427-440.
24
Zothani Maseko, ‘Dispute Resolution Official at Consolidated Employers Organisation’, (16 June
2023) < https://ceosa.org.za/closed-shop-agreements-and-representation/>
25
Garbers The New Essential Labour Law 438.

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against section 36 of the Republic’s Constitution, as this study has prefaced prior a
degree of unconstitutionally exists when the legislation directly detailed in the
Constitution is not actively upheld.

The effects of majoritarianism on minority trade unions can also be observed in the
physical environment of the workplace, Currie acknowledges this 26. The sheer
weight, capacity and voting power that majority trade unions hold is justifiably unfair
to that of minority trade unions, even to employees who choose not to engage at all,
where is the space for these voices to be heard. No such space exists, again a
threat to the freedom of association and the doctrines set within the Constitution.

8 – Conclusion

This investigation concludes and upholds that the impacts of principle of

majoritarianism (negatively) repress the rights of minority trade union to freely
associate and in turn their advancement with collective bargaining within workplace
forums. This investigation further maintains that these rights are protected with the
Republics Constitution and the repression of these rights verify that a degree of
unconstitutionally exists from the impacts of principle of majoritarianism.

This study goes on to emphasise that minority trade union are not expressly denied
these rights and the enjoyment therefore but simply sustains that the enjoyment and
use of these rights are not expressed the same by majority and minority trade
unions, allowing for inequality within workplace forums.

Additionally, this investigation showcases a clear statutory bias within the LRA and
the acquiring of organisational rights and the thresholds that exist for minority trade
unions but not for majority trade unions. Biases within the workspace is
discriminatory and unconstitutional by the mere nature therefore.

A final thought, the impacts of majoritarianism on minority trade unions are

unconstitutional by nature, the initial hypothesis remains.

9 – Bibliography

1- Cases

1. Abanqobi Workers Union v Magma Security CC [2017] 6 BALR 609 (CCMA)

26
Currie and de Waal, The Bill of Rights Handbook 414.

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 2. Association of Mineworkers & Construction Union v Chamber of Mines of SA
(2017) 38 ILJ 831 (CC)
3. Financial Sector & Allied Workers Union of South Africa obo Members v
Assmang Beeshoek Mine [2019] 6 BALR 630 (CCMA)
4. National Union of Metalworkers of South Africa v University of Johannesburg
& Others [2019] 3 BALR 316 (CCMA)
5. POPCRU v Ledwaba 2013 11 BLLR 1137 (LC) [2014]
6. SA Clothing & Textile Workers Union vs Sheraton Textiles Pty (Ltd) (1997) 18
ILJ 1412 (CCMA)
7. Transport & Allied Workers Union of SA v Putco Ltd 2016 (4) SA 39 (CC)

2 - Books

1. Currie I and de Waal J The Bill of Rights Handbook 6th Ed (Juta 2013)
2. Garbers C and others, The New Essential Labour Law Handbook (7th ed,
MACE Labour Law Publications 2019)
3. Leo Tolstoy, A Confession (1882)
4. McGregor M, Labour Law Rules (3rd Ed, Siber Ink Cape Town 2017)
5. Summers, Freedom of Association and Compulsory Union Membership in
Sweden and the United States (1964) Pennsylvania Law Review
6. Von Prondzynski, Freedom of Association and Industrial Relations: A
Comparative Study (1987)

3 - Legislation

1. The Constitution of the Republic of South Africa, 1996

2. The Labour Relations Act 66 of 1995

4 - Online sources

1. CCMA Info Sheet: Organisational Rights (2021) CCMA-I822-2021-01

2. Dean Wingrin, ‘Nearly 200 killed in strike action in 13 years’, DefenceWeb (21
January 2013) http://www.defenceweb.co.za/index.php?

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 option=com_content&view=article&id=29097:nearly-200-killed-in-strike-action-
in-13-years-sairr&catid=3:Civil+Security&Itemid=113
3. Nils Braatvedt and Hassan Van Wyk, ‘South Africa: Majoritarianism Wins, But
Only Just’, Mondaq (07 February 2020) <
https://www.mondaq.com/southafrica/employee-rights-labour-relations/
891608/majoritarianism-wins-but-only-just>
4. Zothani Maseko, ‘Dispute Resolution Official at Consolidated Employers
Organisation’, (16 June 2023) < https://ceosa.org.za/closed-shop-agreements-
and-representation/>

5 - Journal articles

1. Le Roux, Rochelle. (2020). The tentacles of majoritarianism: How far can they
reach into retrenchment?. Obiter, 41(3), 483-503. Retrieved November 09,
2023, from http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-
58532020000300002&lng=en&tlng=en
2. Malan K, ‘Observations on representively, democracy and homogenisation’
(2010) TSAR
3. T Cohen, ‘Limiting organisational rights of minority unions: POPCRU v
Ledwaba 2013 11 BLLR 1137 (LC)’ (2015) Vol 17(5)

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