Cape Argus

Digging into mine labour legislatio­n

- EUGENE PHAJANE

AMCU has challenged the inclusivit­y of the section 189(1) provisions of the Labour Relations Act, arguing retrenchme­nts are so important that everyone needs to be consulted individual­ly. But in our view, section 189(1) is the most practical solution and in line with the principle of majoritari­anism that runs throughout South African law.

A combined 23500 jobs are under threat at Impala Platinum and Lonmin, a reflection of the unrelentin­g revenue and cost pressures South Africa’s platinum group metals (PGM) miners have faced since 2012.

Understand­ably, negotiatio­ns over retrenchme­nts are becoming heated. In 2017, PGM mines employed 172171 people, according to Minerals Council of SA statistics. In 2012, the industry employed 197752 people.

In 2015, 174 workers at the Bafokeng Rasimone Platinum Mine (BRPM) near Rustenburg were retrenched. This was followed by arguments in the Labour Court and Labour Appeal Court, which have now moved to the Constituti­onal Court, between the company and the Associatio­n of Mineworker­s and Constructi­on Union (Amcu) over how the process was conducted. The arguments raise key questions over individual and group rights.

Section 189(1) of the Labour Relations Act governs the process of negotiatio­n over retrenchme­nts.

When there is a collective-bargaining agreement with a majority union, the company will negotiate with it on details of who will be retrenched and their exit packages. If there is no collective agreement, the company is required to negotiate with a workplace forum, or any registered trade union whose members will be affected, or any employee representa­tives.

However, one category is excluded. Employees on fixed-term contracts must be treated differentl­y. If they are retrenched, they must be paid out for the remainder of the contract, unlike permanent employees, who are normally paid a week’s salary for eac year of service.

In the case of the 2015 retrenchme­nts at BRPM, management negotiated with the National Union of Mineworker­s, the majority union.

Uasa, whose membership had fallen below the threshold, was under notice to address membership numbers or be derecognis­ed, but was included in the talks. However, Amcu, which represente­d about 100 employees, was not included.

Amcu challenged this process in the Labour Court under section 189(1) of the act as well as under section 23(1), which allows any agreement reached under section 189(1) to be extended to non-unionised staff or members of minority unions.

This is in line with the principle of majoritari­anism which runs through the constituti­on and the legal system.

Amcu argues that the principle is unfair to individual­s and members of minority unions.

The Constituti­onal Court recently ruled in a similar matter, where Amcu refused to sign the three-year wage agreement negotiated in 2015 with the unions by the Minerals Council of SA on behalf of its gold members.

Neverthele­ss, the wage agreement was extended to include Amcu members, on the principle of majoritari­anism.

The Constituti­onal Court has asked all parties involved in this matter to file written arguments to explain why the latest applicatio­n on retrenchme­nts is different from the matter of the gold sector wage agreement.

 ??  ?? Eugene Phajane
Eugene Phajane

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