The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level. It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.


Introduction
The main objective of this article is to analyse the impact of section 18 of the Labour Relations Act 66 of 1995 (hereinafter the LRA) on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, 1 and the right of every trade union to organise.
Furthermore, this article examines the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution.
In the first part of this article we commence with a brief overview of the concept of bargaining. 13 While this chapter seemingly promotes a pluralistic 14 approach to organisational rights it is decidedly biased towards majoritarianism. 15 This is the case despite minority trade unions fulfilling an important role in the current labour system, especially when it comes to the balance of power in the employment arena.
Besides the right of a majority trade union 16 to appoint representatives 17 and the right to disclosure of information by the employer to enable the trade union representative to effectively perform his/her duties as such, 18 the incentives for majoritarianism in the LRA include the right to enter into a collective agreement setting thresholds of representivity for the granting of access, stop-order and trade union leave rights to minority unions (section 18), the right to conclude agency shop and closed shop agreements (sections 25 and 26), the right to apply for the establishment of a workplace forum (section 80 and 81) and the right to conclude collective agreements which will bind employees who are not members of the union or unions party to the agreement. 19 It is argued in this article that despite the LRA's purpose of advancing economic development, social justice, labour peace and democratisation of the workplace by fulfilling its primary objects, which include the promotion of employee participation in decision making in the workplace, 20 the LRA prohibits this from happening through the nature of a number of its provisions. Under the guise of striving to promote orderly collective bargaining, 21 a number of sections of the LRA benefit majority 13 Sections 11-63 of the LRA.
14 Du Toit et al Labour Relations Law 246. Du Toit defines the term pluralism as "the term that was used under the previous Act to describe a model of collective bargaining that in contrast to the majoritarian model, grants recognition to more than one trade union provided they are sufficiently reprensentative of a defined bargaining unit". 15 Du Toit et al Labour Relations Law 246. 16 Van Niekerk et al Law @ Work 332. The author defines majority unions as "… those registered unions that on their own, or in combination with any one or more unions, have as their members the majority of the employees employed by the employer in a workplace. This requires that at least 50 per cent plus 1 of the employees employed in the workplace must be members of the union(s)".
unions inordinately, while minority trade unions often find themselves faced with insurmountable obstacles that prevent them from being able to engage in collective bargaining.
Section 18 of the LRA is the central topic of discussion in this article. It promotes a system of collective bargaining in which the position of majority unions is enhanced while minority unions are marginalised. Pluralism and diversity, which should be respected in a democracy, are being stifled through the application of section 18 of the LRA.
The LRA contains a number of provisions aimed at promoting majoritarianism.
Amongst these, section 18 has a particularly detrimental effect on minority trade unions. It empowers a majority trade union and an employer to conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15. This article aims to evaluate the impact of section 18 on minority trade unions and to examine the constitutionality of this section in the context of international labour standards.

Brief overview of the concept of pluralism and majoritarianism
In order to have a better understanding of section 18 of the LRA, a brief discussion of majoritarianism and pluralism is warranted. Baskin and Satgar note that: 22 ...the LRA is profoundly majoritarian. Unions with majority support get distinct advantages. Small, minority and craft-based unions are disadvantaged. The message for unions is clear...grow or stagnate.
Pluralism is defined as "... a term used by the predecessor of the LRA to describe a model of collective bargaining that, in contrast to the majoritarian model grants recognition to more than one trade union, provided they are sufficiently representative, of a defined bargaining unit." 23 Being regarded as sufficiently 22 Baskin and Satgar New Labour Relations 12. 23 Du Toit et al Labour Relations Law 246. representative clears the way for unions that are regarded as such to be viewed as representative. 24 Being regarded as representative allows trade unions to claim organisational rights in terms of sections 12 25 and 13 26 of the LRA.
Bendix 27 refers to the pluralist approach as central to the conduct of the labour relationship. The pluralist approach presupposes that with different trade unions representing different interests, power will be distributed in a manner that is fair. It will contribute thereto that the unbridled exercise of power by one trade union is avoided because of the countervailing power of another trade union.
The model of majoritarianism, on the other hand, bestows a degree of primacy on unions with majority membership (at least 50%+1) in a workplace. 28 Besides the rights contained in sections 12 and 13 of the LRA, a number of empowering provisions in Chapter III of the LRA exist. These incentives, designed to promote a majoritarian system of collective bargaining in which a number of strong unions prevail as bargaining agents, are at the heart of the problems facing minority trade unions.

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The impact of section 18 of the LRA on minority trade unions

Introduction
South Africa's constitutional democracy is built on a number of cornerstones. One important cornerstone is that of human dignity, the achievement of equality and the advancement of human rights and freedoms. 29 Equality before the law is a fundamental right which is enshrined in section 9 of the Constitution. 30 Everyone is equal before the law and has the right to equal protection and benefit of the law. 24 Section 11 of the LRA. 25 The right to trade union access to an employer's workplace. 26 The right to trade union subscriptions and levies.

27
Bendix Industrial Relations 253. 28 Van Niekerk et al Law @ Work 361. 29 Section 1 of the Constitution. 30 Section 9 of the Constitution provides that "everyone is equal before the law and has the right to equal protection and benefit of the law".
Despite this constitutional right, it appears that equality before the law for all trade unions is often not seen in practice.
The purpose of this part is to evaluate the impact and effect of the provisions of section 18 when it is abused by majority trade unions and employers. Case law dealing with this question is severely limited and therefore interviews had to be conducted to cast light on the subject.

The right to establish thresholds of representativeness
Section 18(1) of the LRA states as follows: An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15. workers should become the one bargaining unit, while Miners and Arisans and Officials become the second bargaining unit. NUM furthermore demands that recognition should no longer be measured at the 30% threshold inside workplaces within mines in the Lonmin Plc Group, but rather should be measured at 20% in the two proposed bargaining units groupwide.

The application of section
The inclusion of category 9 (C lower band) workers in the proposed bargaining unit to encompass category 3 to 9 workers, results in a significant number of the workers currently in the Miners and Artisans bargaining unit where Solidarity is the strongest union falling inside a bargaining unit where Solidarity has virtually no members.
Even if the groupwide 20% threshold is not agreed upon, the new bargaining unit structure will result in Solidarity's level of 46% representation in the Miners and Artisans bargaining unit significantly diminishing.
The new bargaining unit structure, when implemented, will result in Solidarity and UASA being unable to reach the 20% groupwide representation threshold. This will inevitably result in the loss of recognition for these trade unions. This results in a minority union not being able to recruit members in the workplace and not being able tohave their subscriptions deducted from their members' salaries on a monthly basis, despite the support that a minority union may enjoy in a certain bargaining unit of the employer. It is extremely difficult for a union in this position to increase its membership, which again ensures that it will never reach the set threshold. There also seems to be a high prevalence of cases where the threshold is raised in a new collective agreement after the previous collective agreement (with a lower threshold) expires, in order to strenghten the position of the majority union and diminish the impact that a minority union had while it enjoyed recognition. 35 The loss of recognition as a result of the raising of the threshold impacts heavily on minority unions. This has the effect that a trade union, which in certain circumstances has enjoyed certain organisational rights for a period of time, loses recognition (and as a result lose the organisational rights) that it had enjoyed up to that point. In these circumstances minority unions as a rule almost certainly loses their members in that specific workplace, because these members fail to see the advantages of belonging to a trade union when it has no organisational or bargaining rights.
A further situation which quite often occurs is that an agency shop or a closed shop agreement in terms of sections 25 (1)  In terms of s 25(1) of the LRA a representative trade union and an employer or employers' organisation may conclude a collective agreement, to be known as an agency shop agreement, requiring the employer to deduct an agreed agency fee from the wages of employees identified in the agreement who are not members of the trade union but are eligible for membership thereof.

Bargaining units and the term "workplace"
One of the major functions of trade unions is that of procuring better working conditions and wages for its members. 37 Vettori 38 asserts that the most important instrument of serving the interest of the members of trade union is collective bargaining. She argues that the primary role played by collective bargaining in South African labour law in terms of the LRA is extended to non-distributive or nonproduction-related issues. This is apparent in the provisions regarding workplace forums and bargaining units. Therefore it is important to define the concept bargaining units and workplace for the purposes of the discussion to follow.
The term "workplace" is defined by the LRA as: 39 The place or places where the employees of an employer work. If an employer carries on two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes a workplace.
In addition, section 213 of the LRA defines "workplace" in relation to the public service as follows: for the purposes of collective bargaining and dispute resolution, the registered scope of the Public Service Co-ordinating Bargaining Council or a Bargaining Council in a sector in the public service, as the case may be; or for any other purpose, a national department, provincial administration, provincial department or organisational component contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation 103 of 1994), or any other part of the public service that the Minister for Public Service and Administration, after consultation with the Public Service Co-ordinating Bargaining Council, demarcates as a workplace; In all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place where employees work in connection with each independent operation constitutes the workplace for that operation. This definition, specifically subsection (c) thereof, envisages the existence of more than one workplace where employees work in connection with each independent operation, and is applicable in this case. This definition has been criticised as being too wide and vague with Cheadle stating that it is evident from this definition that a workplace can be made up of one or more places of work and that each case will depend on its own facts. 40 In dealing with this issue, Grogan 41 refers to the matter of OCGAWU v Volkswagen of South Africa (Pty) Ltd. 42 Grogan asserts that the commissioner in this case noted that the legislature recognised that the term workplace could have a different meaning than that of the statutory definition as quoted above, where the context indicated to the contrary. The commissioner further held that if the term, when used in chapter III of the LRA, is to be given the statutory meaning, this would lead to absurdities.
The commissioner held that for at least the implementation of section  If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner must seek to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union, the commissioner must consider; the nature of the workplace; the nature of the one or more organisational rights that the registered trade union seeks to exercise; the nature of the sector in which the workplace is situated; and the organisational history at the workplace or any other workplace of the employer; and may withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.
It is clear from this section that mere numbers are not the only consideration and that the history of the workplace and the membership therein are, amongst others, significant factors to be considered before a trade union's representative status is revoked.

International labour standards, constitutional principles and recommendations by the Committee for Freedom of Association
(CFA)

Introduction
At this stage it becomes important to assess the tenability of section 18 of the LRA.
As a point of departure for this assessment, this part aims to assess international labour standards, recommendations by the CFA 43 and relevant international case law. Due to the importance of international and foreign law in the South African context, this may provide important principles when conducting this assessment.
In terms of section 39 (1)  The approach adopted by van Niekerk AJ in the above matter was that it was manifest that the legislature had drawn on Convention 158 in Chapter VIII and the Code and therefore it was appropriate to use the the contents thereof in adjudicating the matter. When one proceeds to the interpretation of the LRA, section 3 thereof states the following: Any person applying this Act must interpret its provisions -to give effect to its primary objects; in compliance with the constitution; in compliance with the public international law obligations of the Republic.
It is therefore clear that when one interprets the provisions of the LRA, these provisions are subject to the fundamental principles contained in the Constitution. In interpreting these provisions there must be compliance with the standards contained in international law, due to South Africa's membership of the ILO.

International standards on the right to freedom of association
The right to freedom of association is described by Emerson  Workers and employers, without distinction whatsoever, shall have the right to establish and, subject to the rules of the organisation concerned, to join organisations of their own choosing without previous authorization.

This right is similarly protected in the International Covenant on Civil and Political
Rights. 55 Article 22 thereof states: Everyone has a right to freedom of association with others, including the right to form and join trade unions for the protection of their interests.
The ILO requires respect for and adherence to the principle of freedom of association, as is clear from the following quotation: 56 Respect for freedom of association around the world is a fundamental and unavoidable requirement for the International Labour Organisation, because of its most essential structural characteristic, namely tripartism. Without freedom of association or, in other words, without employers' and workers' organisations that are autonomous, independent, representative and endowed with the necessary rights and guarantees for the furtherance and defence of the rights of their members and the advancement of the common welfare, the principle of tripartism would be impaired, if not ignored, and chances for greater social justice would be seriously prejudiced. for trade union freedom as a special form of the principle of freedom of association.

In the matter of Demir and Baykara v Turkey 59 the European Commission of Human
Rights found that collective bargaining has in principle become an essential element of article 11( the right to associate). The court stated that only interference which is strictly necessary in a democratic society can be justified, but also stated that it is still allowed to grant special status to representative trade unions.

International standards on the right to collective bargaining
The right to collective bargaining is a fundamental right that is confirmed by member The necessary measures should be taken to ensure that access is granted freely to farmworkers, domestic workers and workers in the mining industry by trade unions and their officials for the purpose of carrying out normal union activities on the premises of employers.

Recommendations on the recognition of most representative trade unions
The CFA has stated that the mere fact that the law of a country distinguishes between the most representative trade unions and other trade unions is not in itself 63 Currie This part deals with the constitutionally entrenched rights to engage in collective bargaining, to organise, and the right to freedom of association. It dwells on the relation between the right to freedom of association and other fundamental rights.
The core meaning of democracy and the term industrial democracy are also assessed. The purpose here is to evaluate what the aforementioned rights entail and the constitutionality of section 18.

Relevant provisions of the Constitution
The The right to fair labour practice is protected by section 23 of the Constitution. The LRA was enacted to give effect to this right, and is the national legislation envisaged 70 Section 9(1) of the Constitution provides that "Everyone is equal before the law and has the right to equal protection and benefit of the law".

The right to engage in collective bargaining
The right to collective bargaining is a human right that enjoyed protection under the interim Constitution and which enjoys protection under the final Constitution.
Notably the interim Constitution's wording in this regard was "workers and employers shall have the right to organise and to bargain collectively." 74 The wording of the final Constitution has been changed, however, by the introduction of the word "engage." Section 23(5) states: Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
The LRA has removed the duty to bargain, which was previously imposed by the Industrial Court. Because collective bargaining is no longer compelled by law, it has adopted a set of organisational rights for trade unions. 73 Olivier Managing Employment Relations. 74 Currie and De Waal Bill of Rights Handbook 515.

The constitutional right to organise
Section 23(4)(b) of the Constitution states that "Every trade union and every employers' organisation has the right to organise." According to Currie and De Waal the rights conferred in section 23(2)(a) and (b) of the Constitution go beyond the "limited" right to freedom of association and are more fundamental in nature. Currie further asserts that the LRA gives effect to these rights by granting a number of organisational rights including the right of access to the employer's premises for union-related purposes; the right to hold meetings; the right to conduct ballots; the right to stop-order facilities; the right of union office bearers to be given time off for union activities; the right to elect trade union representatives; and the right to disclosure of information for the purposes of collective bargaining. 75

The relation between the right to freedom of association and other fundamental rights
Olivier notes that the right to freedom of association encompasses the right to organise and the right to further the interests of members of a trade union. 76 He further asserts that freedom of association is related to the right to organise, the right to collective bargaining and the right to strike. 77 According to Olivier the effect of the denial of freedom of association is that the right to collective bargaining is undermined. He states that a legal scheme aimed at protecting the right of workers and trade unions to collective bargaining and to strike will be meaningless if the underlying right to join and belong to a trade union is not protected. Conversely, he argues, the right to freedom of association will remain an ineffective right if the right to collective bargaining and the right to strike are not recognised as well. The right to freedom of association is therefore referred to as a "shorthand expression for a bundle of rights and freedoms relating to membership of associations of workers and employers." 78 75 Section 12 of the LRA.

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The core meaning of democracy Political equality manifesting in the equal franchise for all adult citizens is central to democracy. 79 The right to vote is a basic criterion with which to measure the authenticity of a system claiming to be democratic. The more democratic a system claims to be, the closer it should come to universal franchise. This principle is implemented through a system of representation of voters, in the case of South Africa specifically by proportional representation. 80 Malan 81 asserts that a multi-communal society needs a specific form of democracy, namely a pluralist instead of a utalitarian or majoritarian democracy. He states that majoritarian democracy gives full effect to the will of the majority regardless of the effect on minorities. The will of the strongest prevails, while minorities are left powerless to deal with core questions that may be paramount to their wellbeing.
Malan further notes that majoritarian democracy based on utilitarian principlse is democratic only in part, namely to the extent that the majority is the only part of the demos that can govern in its own interest, but that such a system is undemocratic in that it leaves the minorities devoid of any kratos, and thus vulnerable to domination by the majority. Malan states that those belonging to a minority are treated on the same footing as minors who are subject to the authority of adults. He notes that their right to be treated as equals is in this way blatantly violated. 82 Malan notes that the Constitutional Court has on various occasions strongly value of acknowledging the value of diversity and pluralism in our society, and that give a particular texture to the broadly phrased right to freedom of association. 85 Malan contends that citizens in a pluralist democracy affirm the right to selfexpression without being forced to subordinate themselves to the cultural and religious norms of others. A pluralist democracy strikes a balance between majority rule and minority protection. Malan states that this is balance is achieved by acknowledging the general right of the majority to govern on account of the majority obtained at the ballot box, but at the same time by recognising the right of cultural and other minorities to survive and to flourish as communities. According to Malan, a constitutional democracy has a constitution that protects certain basic rights which act as a counter to unbridled majoritarianism, as the constitution places these rights outside the reach of the political power of the majority. 86

Industrial democracy
According to Van der Walt 87 the notion of an industrial democracy has been translated into legislation through the LRA, which states in section 1: "The purpose of the Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objectives of this Act... " 88 He further notes that the drafters of the Act wished to extend the government's intention of democratising the country to the workplace in a similar way as found in a number of countries, most notably Germany and the Netherlands whose systems were used as models for the LRA. Importantly, section 1 of the LRA refers to one of the primary objects that it aims to fulfill as the aim to give effect to the rights conferred by section 27 of the Constitution. 89 85 Section 18 of the Constitution. 86 Malan 2010 TSAR 427-440. 87 Van der Walt Democratisation of the Workplace. 88 Section 1 of the LRA. 89 Section 27 refers to the interim Constitution of the Republic of South Africa Act 200 of 1993, which was replaced by s 23 of the present Constitution.
Van der Walt continues by stating that industrial democracy is the application of democratic principles in the workplace and entails that workers as members of a particular unit participate in decision making. The desire for democracy in the workplace continues to increase, and it seems natural that the same principles found in the larger society should also apply to the workplace. Brassey 90 asserts: Democratisation is the process by which those to whom decisions relate are given a greater say in the process of decision making; the right to vote, which (for example) enjoys protection under section 19(3)a of the Constitution, is but one manifestation of the democratic process; others include the right to be consulted or heard before a decision is taken.
The The concept of the workplace forum is one that holds great potential to ensure that the constitutional right to engage in collective bargaining is effectively recognised.
For minority trade unions and their members this would have been a welcome and excellent instrument to ensure that their voice is heard in the workplaces where majority trade unions for all practical purposes are calling the shots. 98 The fact that the legislature saw fit to leave the key for the establishment of a workplace forum in the hands of majority unions has undone the potential that this concept has in our labour dispensation. For minority trade unions this means that their voice (and that of their members) is again stifled by legislation that on the face of it seems neutral and aimed at promoting collective bargaining, but in practice ensures that majority trade union monopoly is maintained.

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The effective recognition of the right to engage in collective bargaining as an equality challenge Blackett and Sheppard 99 were commissioned by the ILO to write a Working Paper, as an input for preparing the ILO Director-General's Global Report to the 2003 session of the International Labour Conference. Their paper explores a complex and wideranging subject, being the interface between collective bargaining and equality under current conditions of work. It argues that these two fundamental principles and rights are mutually reinforcing and can together promote workplace governance which reconciles economic with social goals.

The authors conclude that the ILO's Declaration on Fundamental Principles and
Rights at Work could hardly be clearer. Both the "effective recognition of collective bargaining" and the "elimination of discrimination in respect of employment and occupation" are so central to the ILO's social justice mandate and decent work agenda that Members have a good faith obligation to respect, to promote and to realise them. Both "immutable" principles have their distinct, robust normative justification, with a deeply egalitarian and democratic thread underpinning them that stresses the centrality of enfranchisement within the world of work.
They argue that unequal access to collective bargaining is an equality challenge. This decidedly broad approach to equality draws upon the deep egalitarianism that characterises the quest for social justice within the world of work. It also focuses on the purpose of protection against discrimination, to affirm the equal worth and dignity of all human beings and more specifically to ensure that the fundamental character of equality, recognised within the ILO's normative universe and beyond, is a reality in working peoples' lives. The approach is moreover compelled by the constitutional mandate of the ILO and its normative system to include "all workers." There is a profound equality challenge surrounding access to collective bargaining, one that the Declaration calls on the ILO and its constituency to address.
To affirm that collective bargaining mechanisms can both hamper and enhance equality is not necessarily to affirm that collective bargaining mechanisms are explicitly exclusionary. Although in some cases collective bargaining has been used as a majoritarian device to engage in direct discrimination against minority groups, the thrust of the unequal access claim is about systemic discrimination -that is, discrimination that is embedded in social and institutional practices, policies or rules.
Simply put, in the design and application of machinery to give effect to the fundamental principle and right to collective bargaining, there were forgotten, overlooked or quite simply excluded categories rendered invisible to collective labour relations because they did not fall within the range of the dominant paradigm. As that dominant paradigm continued to shift, moreover, the asymmetries deepened as the vehicles to render collective bargaining effective failed even to capture the increasingly plural workplace realities.
Accordingly there is also an element of pragmatism in the link between freedom of association and collective bargaining. In other words, for the freedom of association to be fully meaningful, its exercise must be enhanced to ensure real participation in matters that affect workers'' lives. The participation entails ensuring that there are mechanisms for giving people a voice within the workplace and the broader world of 316 / 487 work. The effective recognition of the right to bargain collectively encompasses the recognition of a complex and varying combination of factors. State enabling action is needed to ensure that appropriate facilitative regulatory frameworks are in place, and, seemingly paradoxically, that there is also freedom from state intervention, to ensure that workers and employers can negotiate the conditions that govern them.
The impact of section 18 on minority unions has been comprehensively discussed above, and the discussion brings the constitutionality of the legislation into question.
Constitutional rights that come into play are the right to engage in collective bargaining, the right to freedom of association and the right to organise. All these rights are constitutionally entrenched and safeguarded.
A strong argument can be made that if any of the entrenched rights in section 23 of the Constitution are not geffected the integrity of the Constitution is compromised.

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Options for minority unions A minority union, or an alliance of minority trade unions acting together, could lay a complaint with the ILO in terms of the Constitution of the ILO, raising the following issues:


The majority trade union monopoly instituted and maintained by the LRA through the provisions of sections 18 is contrary to the principles which are embodied in the international labour conventions relating to freedom of association.
A minority union, or an alliance of minority trade unions acting together, can approach the Constitutional Court for a declaratory order seeking to have section 18 declared unconstitutional.
The basis for this application would be the following:


The limitation of the right to freedom of association, the right to organise and the right to engage in collective bargaining in the aforesaid sections of the LRA are 317 / 487 unjustifiable when the factors to be taken into account in terms of section 36(1) of the Constitution, are assessed. As a basis for interpreting the content of these rights contained in the Bill of Rights the content of international labour standards should be utilised.
The effect of these sections is that employees associating with minority trade unions are treated in a different manner than persons associating with majority trade unions, with regard to access to their constitutional right to engage in collective bargaining and the right to organise. This differentiation is unjustifable in terms of section 9 of the Constitution when interpreted by means of international labour standards.
When a minority union is faced with a situation where it loses recognition (in circumstances where it has constantly reached the threshold that existed in the previous collective agreement) due to the fact that the majority trade union and the employer raised the threshold for a trade union to be regarded as sufficiently representative in a new collective agreement, such a union could consider the option of approaching the Labour Court for a declaratory order to the effect that the constitutional right of freedom of association of its members has been infringed due to the loss of recognition brought about by the raising of the threshold in a manner that is contrary to international standards. If this application is refused the matter should be taken through the stages of appeal, through the Labour Appeal Court, the Supreme Court of Appeal, and to the Constitutional Court, if necessary.
When a minority union is faced with an award by a commissioner on the question as to whether such a union is sufficiently representative in a workplace or not, and where the Commissioner acts in accordance with the prescriptive provisions of section 21(8)(a)(i) of the LRA, this award should be taken on review to the Labour Court. When this application is refused the matter should be taken through the stages of appeal through the LAC and the SCA to the CC, if necessary.
It is furthermore recommended that government engages in dialogue with minority unions in order to come to a better understanding of the problem. Minority unions, which as a rule are not represented at the National Economic Development and Labour Council (NEDLAC), find it difficult to attempt to change government's policy on majoritarianism. The matter should be placed before NEDLAC for discussion and the necessary action. It is furthermore recommended that government appoint a task team for making recommendations on the amendment of section 18 of the LRA and the writing of a code of good practice to minimise the negative effect of section 18 on minority trade unions. This task team should in its investigation also assess the constitutionality of section 18 in the context of international labour standards.

Conclusions
This article has highlighted some of the intricate challenges associated with the interpretation and application of section 18 of the LRA on minority trade unions. It is argued that a number of sections in the LRA have the purpose of promoting majoritarianism, while at the same time placing almost insurmountable obstacles in the way of unions whose members are not in the majority in a workplace. The clear winners emerging from the collective bargaining framework of the LRA are majority trade unions.
A particularly powerful provision included in the LRA is section 18, in terms of which a majority trade union and an employer have the right to conclude a collective agreement setting a threshold for representivity for other unions in a workplace to meet, failing which they will not be recognised as trade unions or have the accompanying organisational rights in terms of sections 12, 13 and 15 of the LRA.
Furthermore, section 18 of the LRA permits workplace-specific bargaining by allowing a majority union in a workplace, as defined, to negotiate on behalf of all the employees in that workplace. What this section does not explicitly state is whether when such negotiation takes place the majority union and the employer may negotiate away the rights of currently recognised representative unions. Section 18 319 / 487 merely permits a majority union and an employer to enter into a collective bargaining agreement to regulate the organisational rights of workers within a bargaining unit. This section is accordingly permissive.
The section itself contains no express internal limitations. In particular, it makes no reference to whether the negotiations permitted by the section may occur when other recognised unions are exercising organisational and bargaining rights or to the impact of such conduct on the rights of existing minority unions in the bargaining unit. Section 18 was not intended to promote collusion between employers and majority unions to deprive long-established unions and their members of their rights.
On a proper interpretation, section 18 of the LRA cannot be read to condone the effective manipulation of the collective bargaining units so as to exclude minority trade unions from participating in collective bargaining on behalf of their members employed by a specific employer. Properly construed, section 18 should not be interpreted as a blanket licence for a "majority" union to eliminate the bargaining rights of unions which satisfy the criteria contemplated in section 21(b). It can therefore be concluded that when majority unions negotiate with employers regarding proposed thresholds of representativeness, recognised minority unions must be permitted to participate in the process, and that changes to existing bargaining units may not be unilaterally amended by agreements contemplated by section 18.
In conclusion it can be argued that section 18(1) of the LRA does not support the interpretations of the ILO on Freedom of Association discussed above, that this provision is unconstitutional and in violation of international norms to the extent that it allows the effective exclusion of minority unions through manipulation by majority unions in collusion with the employer of recognised collective bargaining units and long-standing practice.

Register of international documents
African Charter on Human and Peoples' Rights (1981)