Association of Mineworkers and Construction Union v Sibanye Gold Limited t/a Sibanye Stillwater

AMCU commenced strike action on 21 November 2018 over wages and conditions of employment after negotiations broke down. On 14 November 2018, Sibanye concluded a wage agreement with a coalition of three other unions (NUM, Solidarity, UASA) covering the period 1 July 2018 to 30 June 2021, which included a peace clause. The coalition unions did not have majority representation at that time. Following the strike and alleged 'floor crossing' by employees from AMCU to coalition unions and non-unionized employees joining coalition unions, the coalition allegedly achieved majority status. On 13 December 2018, a first extension agreement was concluded under section 23(1)(d) of the LRA extending the wage agreement to all employees. On 18 February 2019, a second extension agreement was concluded, expressly providing retrospective effect from 1 July 2018, superseding the first extension. AMCU challenged both extensions, arguing they were unlawful and sought to have them set aside. The strike was violent, resulting in seven deaths, petrol bombings of homes, assaults, and injuries to non-striking employees and their families.

• Whether a collective agreement can be extended to non-parties pursuant to a separate agreement concluded after the original collective agreement under section 23(1)(d) of the LRA
• Whether section 23(1)(d) of the LRA requires that any extension of a collective agreement must be provided for in the collective agreement itself at the time of its conclusion
• Whether an extension agreement under section 23(1)(d) can apply retrospectively to a period before the extension agreement was concluded
• Whether retrospective application of an extension agreement unlawfully deprives minority union members of vested rights to strike for periods preceding the extension
• The constitutional validity of section 23(1)(d) limitations on the right to strike

The application was dismissed with no order as to costs. The Court found that the second extension agreement was lawful and valid, binding AMCU members to the wage agreement (including its peace clause) retrospectively from 1 July 2018, thus precluding protected strike action over issues covered by the agreement for its entire duration.

Section 23(1)(d) of the LRA does not require that an extension of a collective agreement to non-party employees be included in the original collective agreement itself; such extension may be effected through a separate subsequent agreement provided the formal requirements of section 23(1)(d) are met (majority representation, express binding language, identification of employees). An extension agreement under section 23(1)(d) may lawfully apply retrospectively to the commencement date of the underlying collective agreement, binding non-party employees (including minority union members) to all terms including peace clauses for the entire duration of the agreement, not merely from the date of extension forward. When a collective agreement is extended under section 23(1)(d), non-party employees are placed in the same position as if they were original parties to the agreement, and the agreement operates as their agreement for its full duration. The determinative factor for validity of a section 23(1)(d) extension is whether the extending union(s) have majority status at the time of the extension, not whether they had such status during any earlier period to which the agreement applies retrospectively.

The Court observed that the parties are in a continuous collective bargaining relationship and that the legal issues were not clear-cut, justifying no order as to costs in the interests of justice and fairness. The Court noted the violence accompanying the strike (seven deaths, 48 homes petrol-bombed, children assaulted, 95 hospitalizations, 26 vehicles destroyed, two NUM members shot dead) and Sibanye's R2 billion in losses, though these factors did not form part of the legal reasoning on the section 23(1)(d) issue. The Court commented that accepting AMCU's argument would lead to absurd results and undermine orderly collective bargaining, as it would mean minority unions bound by extended agreements could always strike over demands for periods preceding the extension whenever a wage agreement applies retrospectively. The Court observed that AMCU's argument about retaining the right to strike for the period 1 July 2018 to 18 February 2019 was 'entirely artificial' since AMCU members were actually striking about demands for the full agreement period (1 July 2018 to 30 June 2021), not just the pre-extension period.

This case provides important clarification on the application of section 23(1)(d) of the LRA regarding extension of collective agreements to non-party employees. It establishes that: (1) extension agreements need not be concluded simultaneously with or included in the original collective agreement and can be effected through separate subsequent agreements; (2) such extensions can apply retrospectively to the commencement date of the underlying collective agreement; (3) the principle of majoritarianism in section 23(1)(d) permits majority unions to bind minority union members even for periods preceding the extension, provided majority status exists at the time of extension; and (4) this does not constitute an unconstitutional deprivation of vested rights to strike. The judgment reinforces the constitutional validity of section 23(1)(d) as a manifestation of majoritarianism that promotes orderly collective bargaining and labor peace, even where it limits minority unions' right to strike.