The majority decision concluded that the right to bargain and freedom of association can only be restricted by laws of general application and not by collective agreements between employers and majority unions. It is clear from the above that employers need to rethink their approach and strategy when dealing with minority unions in their respective workplaces, especially if there is another agreement on the same or similar rights with a majority union in that workplace. In the end, the Constitutional Court concluded that POPCRU`s interpretation of Article 18 was erroneous because it would effectively deprive minority trade unions of the right to collective bargaining. The most significant change brought about by the amendments to the Industrial Relations Amendment Act No. 8 of 2018 (LRA), is the transfer of rights within the meaning of Articles 14 and 16 to minority unions which, in the past, have been granted exclusively to majority unions. In addition, if certain conditions are met, the amendments allow a union that does not meet a threshold set out in a collective agreement within the meaning of section 18 to be granted rights within the meaning of section 12, section 13 or section 15 of the LRA. PopCRU, the majority union, argued that a collective agreement under section 18 was indeed binding on all parties, as well as on unions that are not parties to the threshold agreement, within the meaning of section 23 of the LRA. Minority unions can also negotiate Article 14 – the right to appoint and resign shop stewards – and Article 16 – the right of access to information, which is reserved for majority unions under the LRA. These rights can be acquired by minority unions by reaching the threshold, negotiating with the employer and entering into a collective agreement, or by referring it to the CCMA in accordance with section 21 whether the agent has the discretion to grant the rights or not. In Police and Prisons Civil Rights Unions v South African Correctional Services Workers Union and Others (2018) 29 SALLR 8 (CC), the court prohibited the abuse of a union`s majority status to deprive workers of minority unions of their right to recognition, collective bargaining and freedom of association. In a majority judgment on the essential dispute (apart from the point at issue), it was held that it would be in the interests of justice to interpret the meaning of Articles 18 and 20, since such an interpretation may still have an impact on disputes arising in good time on the same point of law, but between other parties. Ultimately, conCourt concluded that POPCRU`s interpretation of section 18 was erroneous because it would effectively deprive minority unions of the right to collective bargaining. ConCourt argued that this right is granted to every union by the Constitution, whether it is a minority or majority union.
It is not surprising, according to conCourt, that section 18 does not prohibit collective bargaining between an employer and a minority union where there is a collective agreement between that employer and the majority union. It considered that such a prohibition would be incompatible with the Constitution and international law. In fact, the ConCourt ruled that an agreement to restrict the right to collective bargaining would be inconsistent with the Constitution and invalid if it were not a restriction that met the requirements of section 36 of our Constitution. However, SACOSWU noted that a collective agreement under section 20 replaces a collective agreement under section 18, as section 20 makes it clear: “Nothing in this part precludes the conclusion of a collective agreement governing the rights of the organization.” Before the Constitutional Court, the question was whether a minority union was prevented from concluding a collective agreement with the employer on the acquisition of organizational rights if a threshold agreement had already been concluded between a majority union and the employer and the minority union did not meet the threshold relating to that agreement to acquire the rights. POPCRU challenged the collective agreement concluded between DCS and SACOSWU, arguing, in essence, that it was unlawful since the threshold agreement obliged DCS not to grant organisational rights to minority trade unions. This has led to a rapid increase in the number of minority unions in the workplace, which means that industrial relations are becoming a little more difficult. PopCRU argued, first, that a collective agreement under section 18 is effectively binding on all parties and other workers and unions that are not parties to the threshold contract within the meaning of section 23 of the LRA. Therefore, an employer cannot enter into another collective agreement with a minority union that grants that minority union rights that are governed by a collective agreement under section 18 .. . .