Association of Mineworkers and Construction Union v UASA-The Union and Others

The National Union of Mineworkers (NUM) was historically the majority union at Lonmin's Eastern and Western Platinum operations. AMCU became the majority union and concluded a recognition agreement with Lonmin on 14 August 2013, establishing thresholds for organisational rights. Lonmin terminated its prior recognition agreement with NUM and later cancelled limited organisational rights agreements with UASA and Solidarity. A coalition was formed between NUM, UASA and Solidarity (the Coalition) to seek organisational rights at Lonmin's Marikana Operations under sections 12, 13 and 15 of the LRA. When Lonmin refused, the Coalition referred a dispute to the CCMA. At arbitration (18-22 October 2018), the parties entered a pre-arbitration minute agreeing to membership numbers as at 31 October 2017. The arbitrator granted the Coalition organisational rights, finding they represented a substantial number of employees in categories C and D. Of the 22,689 total employees, the Coalition had 2,277 members (10%) as at 31 October 2017, while AMCU had 18,969 members (84%) as at 18 October 2018. The Labour Court dismissed AMCU's review application.

• Whether the arbitrator applied the correct test under section 21(8C)(b) of the LRA in determining if the Coalition represented 'a substantial number of employees in the workplace'
• Whether the arbitrator erred in defining the 'workplace' as employees in categories C and D rather than Lonmin's Marikana Operations as a whole
• Whether the arbitrator was entitled to rely on the Coalition's membership numbers as at 31 October 2017 instead of requiring current membership as at the date of the arbitration hearing (18 October 2018)
• Whether ex post facto resolutions by Solidarity and UASA preserving membership despite non-payment of subscriptions could be relied upon to establish membership
• Whether an employer or another union can challenge the internal arrangements of minority unions seeking organisational rights by disputing their membership

The appeal was upheld with no order as to costs. The Labour Court order was set aside and substituted with an order dismissing the Coalition's application for organisational rights under sections 12, 13 and 15 of the LRA, with no order as to costs.

Minority trade unions seeking organisational rights under section 21(8C)(b) of the LRA must prove their membership as at the date of the arbitration hearing, not rely on historical membership figures. The determination of whether a union represents 'a substantial number of employees in the workplace' must be assessed against the workplace as properly defined under section 213 of the LRA, not against a subset of employees within particular categories. Where union membership is disputed in the context of organisational rights claims, employers and other unions are entitled to challenge the internal arrangements and membership claims of minority unions, and arbitrators must invoke their powers under section 21(9) to make necessary enquiries to establish actual membership. Ex post facto resolutions by unions purporting to preserve membership cannot revive memberships that have already terminated by operation of the union's constitution.

The Court observed that it would be impermissible and untenable for minority unions to pass ex post facto resolutions to artificially preserve or inflate their union membership for purposes of being granted organisational rights. The Court noted that the MacDonald's Transport case must be distinguished, as it dealt with representation in litigation proceedings rather than organisational rights claims. The Court commented that it is not practical to re-embark on a verification exercise every time a matter is rescheduled, but this does not excuse unions from proving current membership when seeking organisational rights. The Court also noted that some Solidarity members changed from stop orders to debit orders while the majority did not, supporting the inference that those who did not change payment methods accepted termination of their membership. The Court applied the principle that in determining appropriate remedies, where all facts are before the appellate court and significant time has passed, it may be more consistent with the LRA's objective of speedy dispute resolution to substitute the award rather than remit to the CCMA.

This case establishes important principles regarding the proof of union membership when minority unions seek organisational rights in South Africa. It clarifies that: (1) unions seeking organisational rights must prove current membership at the time of arbitration, not historical membership; (2) the 'workplace' for determining substantial representation must be properly defined according to section 213 of the LRA and cannot be artificially narrowed to particular employee categories; (3) employers and other unions have standing to challenge the membership claims of minority unions seeking organisational rights; (4) ex post facto resolutions cannot revive memberships that have terminated by operation of union constitutions; (5) arbitrators must exercise powers under section 21(9) to make necessary enquiries when membership is disputed; and (6) the case reinforces that organisational rights claims require rigorous factual proof of membership, consistent with the LRA's objective of effective and speedy dispute resolution. The judgment prevents minority unions from artificially inflating membership numbers through retrospective measures.