Abstract
A majority trade union can enter into a collective agreement in terms of which an employer agrees to consult with it only on operational dismissals. These parties can reach an agreement on retrenchment terms and conditions after negotiating with the majority trade union. The agreement can also outline the procedure for selecting retrenched employees as well as the payment of severance pay. Non-unionised workers and minority trade unions can also be included in this agreement. Section 189(1) of the Labour Relations Act 66 of 1995 (LRA) effectively provides that workers represented by a minority trade union and non-unionised staff can be retrenched without being consulted. These workers will ultimately be governed by a retrenchment agreement that was reached without their input. A prudent analysis of the wording of section 23(1) of the Constitution of the Republic of South Africa, 1996 raises the critical question of whether such a process is constitutionally permissible. Another issue is whether retrenchments under sections 189(1) (a) and 23(1) (d) of the LRA will allow for the equal realisation of the benefits of majoritarianism, which the LRA promotes. In Association of Mineworkers and Construction and Others v Royal Bafokeng Platinum Limited and Others 2020 41 ILJ 555 (CC) (AMCU), the majority of the Consitutional Court held that the benefits of the majoritarian principle can be equally realised in retrenchment agreements under sections 189(1) (a) and extended in terms of 23(1) (d) of the LRA.
The extension of collective agreements in section 23(1) (d) of the LRA passed constitutional muster in all four separate judgments delivered in AMCU. However, there was no unanimity on whether the extension of collective agreements could be equally realised in retrenchment agreements under section 189(1). Although the majority of justices upheld the constitutionality of section 189(1), employers should consider including non-unionised and minority trade unions in consultations when considering retrenchments. This study suggests that the majoritarian principle in the LRA could be relaxed in the context of retrenchments.
Keywords: Principle of Majoritarianism; Retrenchments; Consultation; Extension of Collective agreements