Bidair Services (Pty) Ltd v Commissioner Albert Makgoba N.O. and Others

Bidair Services (Pty) Ltd operates four divisions/departments: grooming services, ramp handling services, passenger handling services and executive concierge. The third respondent union (AMCU) enjoyed all organisational rights in terms of sections 12 to 16 of the LRA in respect of all four departments. The union sought to enter into a single collective/recognition agreement with the applicant to cover all four departments. The applicant's position was that each department was an independent entity and that any collective/recognition agreements should be entered into with each department separately. The ramp handling division had already recognised the union and entered into wage negotiations with it. The union referred a dispute to the CCMA in March 2016, characterised as concerning organisational rights, seeking assistance to conclude a recognition agreement. The commissioner found that the union was the most representative union at the applicant's workplace in all four departments and ordered that the applicant should engage the union to conclude a collective agreement in terms of s 20 of the LRA covering all departments.

• Whether the CCMA had jurisdiction to determine the dispute by way of arbitration
• Whether the dispute was properly characterised as one concerning organisational rights or whether it was a dispute about the definition of a bargaining unit for collective bargaining purposes
• Whether a distinction exists between the concept of a 'workplace' for purposes of organisational rights and a 'bargaining unit' for purposes of collective bargaining
• Whether the commissioner could issue a binding arbitration award in respect of a dispute concerning refusal to bargain under s 64(2) of the LRA

The arbitration award issued by the first respondent on 10 October 2016 under case number GAEK 2898-16 was reviewed and set aside. Each party was ordered to bear its own costs.

The binding legal principle established is that disputes concerning refusal to bargain, including disputes about recognition of a trade union as a collective bargaining agent and/or the definition of an appropriate bargaining unit, are matters contemplated by s 64(2) of the LRA and do not fall to be determined by binding arbitration. Such disputes may only be determined through the advisory arbitration procedure referred to in s 64(2). The CCMA has no jurisdiction to issue a binding arbitration award in respect of such disputes. Commissioners and courts must be careful not to confuse the concept of 'workplace' for purposes of organisational rights under sections 12-16 of the LRA with the concept of 'bargaining unit' for purposes of collective bargaining. To do so risks improperly imposing a duty to bargain, contrary to the basic structure of the LRA which does not impose such a duty but rather gives effect to the constitutional right to engage in collective bargaining through organisational rights and the right to strike.

The Court observed that even if there were two components to the dispute (organisational rights and definition of bargaining unit), it would be difficult if not impossible to 'unscramble the egg' and discern which elements of the award ought to be upheld, given that the parties (represented by laypersons at the hearing) had confused organisational rights and the right to bargain collectively. The Court further noted that it was unclear what tangible advantage the union would gain from having a definition of workplace that incorporated all four departments, given that it already enjoyed all statutory organisational rights in respect of each department. The Court also commented that it was not clear whether all procedural requirements established by s 21 of the LRA for enforcement of statutory organisational rights had been met prior to referral to the CCMA.

This case is significant for clarifying the important conceptual distinction between a 'workplace' for purposes of organisational rights under sections 12-16 of the LRA, and a 'bargaining unit' for purposes of collective bargaining. It reinforces the principle that the LRA does not impose a duty to bargain collectively and that commissioners and courts have no role in determining whether one party should bargain with another, the subject matter of bargaining, the level at which bargaining should be conducted, or the identity of a bargaining partner. The judgment emphasizes that disputes concerning refusal to bargain (including recognition as a bargaining agent and definition of bargaining units) under s 64(2) can only be determined through advisory arbitration, not binding arbitration. This maintains the conceptual integrity of the LRA's structure, which protects collective bargaining rights through organizational rights and the right to strike, rather than through imposed bargaining obligations. The case serves as an important reminder to parties and arbitrators not to conflate these discrete concepts, as doing so risks improperly imposing a duty to bargain.