The Extention of Collective Agreements to Minority Unions and Employees Who Are Not Parties Thereto

In Association of Mineworkers and Construction Union v Chamber of Mines of South Africa and Others CCT 87/16, the Constitutional Court (CC) had provided much needed clarity on the application of Section 23 (1) (d) of the Labour Relations Act, which extends collective agreements reached between employers and majority unions and employees to minority unions and employees not party thereto.

 

The background facts are that the Chamber of Mines of South Africa on behalf of its members began negotiating wages and working conditions with National Union of Mineworkers (NUM), Solidarity and United Association of South Africa. The Association of Mineworkers and Construction Union (AMCU) became a party to the negotiations. However, they abandoned the negotiations before the agreement could be reached because they were not happy with the offer made by the Chamber, which the other unions accepted. Furthermore, AMCU notified the chamber and the mining houses of its intention to strike believing that it is not bound by the agreement reached in the said negotiations. The Chamber of Mines responded by applying for an interdict to the Labour Court to prohibit AMCU from embarking on a strike in terms of section 65 (1), on the basis that the cause of strike was settled in the collective agreement, although AMCU was not a party to the agreement, it was bound nevertheless.

 

The main issue was whether an agreement concluded between mining companies and their collective representative on the one hand and unions representing a majority of workers of those companies binds employees at individual mines where their own union, which is not party to the agreement is the majority union. AMCU was the majority union in individual mining operations, but not in the whole company.

 

Section 23 (1) (d) stipulates that a collective agreement binds even employees who are not members of the unions party to the agreement provided those unions “…have as their members the majority of employees employed by the employer in the workplace.”

 

The meaning of the word “workplace” referred to in section 23 (1) (d) had proven to be key in determining the main issue. AMCU had argued that the word “workplace” referred to each individual mining operation.

Further, AMCU had argued that if the statutory definition of the word “workplace” is applied to section 23 (1) (d), then this section would be unconstitutional for the following reasons. The rights to fair labour practices, including the right to bargain collectively through AMCU, the right to strike and the right to freedom of association would be unjustifiably limited.

Furthermore, section 23(1)(d) violates the rule of law, because the extension of the agreement was tantamount to the exercise of public power. AMCU strongly argued that rule of law requires that public power be exercised by state actors and that perming private actors to effectively exercised public power without independent public authority oversight infringes the principle of legality. There is no remedy under the LRA to review section 23(1)(d) extensions. AMCU effectively contends that section 23(1)(d) read with section 65(1)(a) permits private parties to conclude agreements that deny no-parties the right to exercise fundamental Constitutional rights.

THE MEANING OF “WORKPLACE”

The court was of the view that workplace is not the place where any single employee works – like that individual’s workshop or assembly line or field or desk or office. However, it is where the “the employees of an employer” collectively work. The court found that location is not primary – functional organisation is. The key, according to the court, is whether an operation is independent – not where it is located.

The court held that 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.

The Court confirmed the Labour Court (LC) and the Labour Appeal Court’s (LAC) findings that the individual AMCU majority mines did not constitute independent operations. Notwithstanding, the fact that at some individual mines the companies had concluded separate recognition agreements with AMCU. According to the courts the mining house operated integrally as a single workplace, and that each AMCU majority mines was not an independent operation. The CC however, recognised that there is no definition of the word “independent” or “operation” in the statute. I am of the view that it will be very difficult for a minority union having majority in one mining operation of the company to prove that that such operation is independent in respect of size, function and organisation, from other mining operations of the company in order to constitute a workplace.

THE PRINCIPLE OF MAJORITARIANISM

The CC cited in Kem-Lin Fashions v Brunton, that if there is to be orderly and productive collective bargaining, some form of majority rule in the workplace has to apply. According to the court constitutional rights to strike is violated by section 23(1)(d), but the right can be limited, the best justification for the limitation is the principle of majoritarianism, in this context, benefit orderly collective bargaining. The court also found that section 23(1)(d) was not irrational since it passed the limitation analysis.

By Jeffery Maluleke
jeffery@dyason.co.za

Signal Jamming in Parliament

In Primedia Broadcasting (a division of Primedia (Pty) Ltd) and Others v Speaker of the National Assembly and Others (784/2015) [2016] ZASCA 142; [2016] 4 All SA 793 (SCA) (29 September 2016) the events that led to the initial application that arose as a result of the State of the Nation Address (SONA) of the 12th January 2015 were described. Two such unforgettable events are the signal jamming in Parliament and the ousting of the Economic Freedom Fighters from the chambers. As a result, the Applicants initially made the application on the following grounds – firstly, the State Security Agency employed a device that jammed mobile telecommunication signals inside Parliament, the so called “signal jammer”. Consequently journalists and MPs attending SONA were unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. Even though the latter lasted momentarily as it was swiftly addressed by the relevant authorities, it remained pivotal. Secondly, the Applicants averred that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber because the cameras would not show the actual events except to show the faces of both Speakers of Parliament in the joint sitting. The essence of the judgment in the court a quo was that the Speaker was entitled to make such a ruling which was consistent with the rules and policies of Parliament. The Applicants appealed the latter decision, this article therefore focuses on the Appeal decision.

The issue that was central to this application was that of the right to an open Parliament, whether Parliament had rules and policies consistent with the Constitution and whether any limitation of rights as a result of these rules and policies was justifiable. As a matter of course, Section 59 and 72 of the Constitution of the Republic address the issues of public participation in both Parliament and the National Council of Provinces respectively. In lieu of the fact that not all public persons may at once attend processions in both houses at any given time, television and radio journalists report on the “goings-on” of such processions. So, their broadcast feed is regulated by Section 21 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (hereafter the Powers Act). In light of the said section 21, Parliament adopted its own rules and policies. As a result thereof, if there was a disorder of sorts in the house, the cameras are meant to only focus on the Speaker of Parliament and not show the chaos on the house floor. It was clear at the outset in the court papers that the following facts existed:

  1. the Parliamentary Policy on broadcasting was adopted in August 2009 but it appeared that SANEF (South African National Editor’s Forum) only found out about this Policy only in late January 2015 in a meeting between itself and Parliament i.e. after the SONA of the 12th January 2015,
  2. the Broadcasting Rules were adopted in September 2003 but Primedia learnt of the said rules only when Parliament served their Answering Affidavit.

Consider the following and judge for yourselves: Why did Parliament shy away from informing the relevant stakeholders of their rules and policies on broadcasting after adopting them? So, it appeared that it was only in August 2014 that these rules and policy of Parliament were evoked and the cameras only focused on the Speaker i.e. that was the first ejectment of the Economic Freedom Fighters (EFF) from Parliament. To clarify, when broadcasting parliamentary proceedings, the live feed is forwarded first to the Sound and Visual Unit (SVU) for editing before it is distributed to our television sets at home or elsewhere. The Director of the SVU is empowered to make the decision, firstly to decide what constitute the disorder and secondly to switch the cameras to the occupant/s of the chair of Speaker of Parliament. The Powers Act in section 27, by the way, makes it an offence to breach the provisions of section 21. So, in order to justify the limitation of their right to an open Parliament, the Respondents made various arguments as follows:

  1. that the limitation is necessary to protect and promote the dignity of Parliament – Ruling: the argument is contrary to the right of the public to know what is happening in Parliament and are entitled to know how their elected representatives fair in representing them,
  2. that the public has the right to view only the legitimate business of Parliament – Ruling: the members of the public have the right to see and hear what happens in the legislature and the argument therefore failed,
  3. that the disruption provisions of their rules and policies were minor in nature – Ruling: broadcasting effectively renders greater accurate reporting and most people would obtain their information from watching their television sets, so the argument failed,
  4. that the disruptive incidents are not ignored and the consequence of visuals of disorder and defiant conduct if repeatedly played is mitigated, that ill conduct would be encouraged thereby – Ruling: essentially it amounted to an authoritarian approach equated to an apartheid rule and against the spirit of our Constitution, therefore the conjecture inferred will not stand,
  5. that the limitation is consistent with International Best Practice and that they were extracted from the United Kingdom – Ruling: the court found the rules not consistent with our Constitution and also found that the European Union and the Scottish Parliament amongst others, they allow uncensored broadcasts, contrary to the international best practice averment.

On signal jamming the Intelligence Minister had said “…it was a mistake and would not be repeated…” and the Speaker of Parliament declared her ignorance of the device and that she had no idea the device was in the house.   The court a quo found the argument of the Appellants moot because the incident was isolated and a mistake. The Supreme Court of Appeal found that the device and its use before and during SONA was unlawful and a violation of section 4(1) of the Powers Act but was quick to mentioned that other devices may be used by the security services to conduct a legitimate policing function.

Decision:

  1. In the end, the court upheld the appeal.
  2. The order of the court a quo is set aside and replaced with the following:

(a) It is declared that clause 8.3.3.2 of Parliament’s Policy on Broadcasting and Rule 2 of the Parliament’s Television Broadcasting Rules of Coverage, headed ‘Disorder on the Floor of the House’ are unconstitutional and unlawful in that they violate the right to an open Parliament.

(b) It is declared that the manner in which the State of the Nation proceedings in February 2015 was broadcast was unconstitutional and unlawful.

(c) It is declared that the use of a signal jamming device in Parliament, without the permission of the Speaker of the House of Assembly and the Chairperson of the National Council of Provinces, is contrary to section 4(1) of the Powers,  Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 and is unlawful.’

By Phalen Selibi
phalen@dyason.co.za

Bioethical mediation facilitating emotional life-and-death decisions

Neonatal critical care decisions often entails complex life-and-death decisions and involves the patient, family, health carers and loads of emotions, especially when parents and health care providers do not agree on the appropriate course of treatment.

The following two cases serve as good examples of the complex nature and emotional stress these decisions can cause:

In re B (a minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 a baby girl was suffering from Down’s-syndrome as well as a severe intestinal blockage, which is a common symptom of Down’s-syndrome. To save her life doctors recommended surgery to remove the intestinal blockage. However, her parents were of the believe that it was not in the best interest of the child to operate on her due to the fact that she would remain severely physically and mentally disabled, should she survive.

In re A (children) (Conjoined Twins Surgical separation) [2001] 2 WLR 480 involved twins that were joined at the pelvis from birth. Separation surgery would result in the weaker of the twins not surviving, while no surgery would mean that neither of the twins will survive. Their parents, devout Roman Catholics, believed it would be a sin to actively cause the “killing off” of one of the twins by means of separation surgery and refused their consent to such surgery which eventually lead to the death, albeit natural death according to the view of the parents, of both children.

The fact that neonates, babies or small children are involved complicates the choice of any medical treatment as the child is not in a position to communicate his or her wishes and relies on surrogates such as parents, guardians or caregivers to make decisions on behalf of and in the best interest of the child. Section 129(1) of the Children’s Act 38 of 2005 specifically stipulates that consent is needed before a child may be subjected to medical or surgical treatment. Section 129(4) requires the consent of either the parents, guardians or caregivers for medical treatment other than surgery for which only parents or guardians may consent in terms of section 129(5).

In these consent provisions the child’s parental care rights, as enshrined in section 28(1) of the Constitution of the Republic of South Africa 1996, find practical implementation to safeguard the well-being of the child.

If a parent or guardian refuse to give his or her consent, or is unable to give consent due to injury or mental health issues, for the medical treatment of a child, the High Court or Children’s Court may be approached in terms of section 129(9) of the Children’s Act to obtain the court’s consent to such treatment instead. These court orders have historically been the preferred (and known) route in cases of disagreement between parents and health care providers regarding the treatment of their child.

It is important to note that courts will only interfere with the decision making of parents or guardians if they believe that it is in the best interest of the child, as was shown in the case of Hay v B 2003 3 SA 492 (W) in which the parents opposed a court application by Dr Hay to administer a blood transfusion. Notwithstanding the fact that blood transfusions were against the religious belief of the parents, the court found that this treatment was in the best interest of the child, that the child’s best interest was of paramount importance and that the child’s life outweighed the parent’s right to religious freedom. The court then ordered that blood be administered to the child, which transfusion saved the child’s life.

Two years after the Hay-matter, section 129(10) of the Children’s Act provided clarity about parents’ religious beliefs and stipulated that their beliefs may not trump the best interest of the child who requires medical treatment or surgery.

This child centred approach was first introduced in Kaiser v Chambers 1969 4 SA 224 (C), confirming the principle that a child’s rights are of primary and paramount importance as envisioned in article 3 of the United Nations Convention on the Rights of the Child 1989, article 4(1) of the African Charter on the Rights and Welfare of the Child 1990 and section 28(2) of the South Africa Constitution.

However, this “best interest” standard is often dependant on the subjective opinion of the surrogate decision makers of what is in the best interest of the child and may lead to disputes between parents and health care providers. Involving children, family, critical care decisions and time sensitive medical treatment, these disputes are often loaded with emotion and may there not be enough time, resources or energy to follow the conventional legal routes towards finding a solution. Under these circumstances biomedical mediation provides a quick, emotionally sensitive and specialised method to effectively resolve critical care disputes involving children and surrogate decision makers.

The main difference between conventional mediation and bioethical mediation is time constraints. Bioethical mediation involves medically and emotionally complex life-and-death decisions that must be taken in a matter of minutes. In these circumstances it is advisable to use the dual method of mediation where both a health care provider with specialised knowledge of the field in which the dispute arose and an attorney specialising in medical law and/or bioethics mediate the dispute between the parties. The mediators’ respective specialities are of crucial importance as there will be precious little time in which to mediate the situation and come to a mutually agreeable decision. There will simply be no time to get the mediators up to speed regarding the medical and legal issues at hand.

Otherwise bioethical mediation is based on the same foundational principles as conventional mediation: autonomy of the surrogate decision makers on behalf of the child; prevention of intentional harm by health care providers (non-maleficence); taking positive steps to promote the best care for the patient (beneficence) and treatment that must be fair, equitable and impartial for all people (justice).

Bioethical mediation already finds successful application across Europe and America with one of the prominent voices in bioethics, the Nuffield Council on Bioethics (UK) recommending that bioethical mediation should be extended to critical care decisions for its potential.

In South Africa the way for bioethical mediation is already paved by sections 49, 69 and 71 of the Children’s Act in which the legislator intended that child-centred disputes must be mediated instead of going to court, the Magistrate’s Court Act that provides for disputes to be referred to mediation before commencement of litigation and section 70 of the Consumer Protection Act 68 of 2008 according to which consumer disputes regarding the quality of medical services may be referred to mediation.

Maybe it is time to follow the road less travelled.

By Marietjie Botes
marietjie@dyason.co.za
Biotech-law twitter: @Marietj72675939