UASA and Others v Western Platinum Limited and Others

AMCU, as the majority union in the workplace of Lonmin (Western and Eastern Platinum Limited), concluded an agency shop agreement with Lonmin on 24 April 2019. The agreement provided that Lonmin would deduct an agency fee from wages of all employees within the bargaining unit at Marikana Operations who were not members of AMCU. The applicants (UASA, Solidarity, and NUM) had members who were employees within this bargaining unit. On the same day, the Registrar of Labour Relations gave notice of intention to cancel AMCU's registration as a trade union on the basis that AMCU had ceased to function in terms of its constitution. The applicants only received a copy of the agency shop agreement on 22 May 2019 and launched this application on 29 May 2019, seeking a declaration that the agency shop agreement was invalid and unenforceable. Specifically, clause 7.1 of the agreement stated that 'employees who are not members of any trade union shall not be compelled to become members of AMCU', rather than stating that employees who are not members of AMCU are not compelled to become members of AMCU.

• Whether the matter was urgent
• Whether the Labour Court had jurisdiction to determine the validity of the agency shop agreement or whether it was a matter of interpreting a collective agreement
• Whether the agency shop agreement complied with the statutory formalities prescribed by section 25(3)(a) of the LRA
• Whether the agency shop agreement was valid and enforceable

1. The Agency Shop Agreement concluded between the First to Third Respondents on 24 April 2019 is invalid and unenforceable. 2. The First and Second Respondents are interdicted from deducting any agency fee in favour of the Third Respondent from the wages of the Applicants' members in terms of the said Agency Shop Agreement. 3. The First and Second Respondents are ordered to immediately refund all agency fee deductions made or to be made from the wages of the Applicants' members in terms of the Agency Shop Agreement. 4. There is no order as to costs.

An agency shop agreement is binding only if it expressly and specifically replicates all the provisions of section 25(3) of the LRA. It is insufficient for an agency shop agreement to provide that employees who are not members of 'any trade union' shall not be compelled to become members of the representative union. The agreement must expressly provide that employees who are not members of the representative union (which includes members of minority unions and non-unionized employees) are not compelled to become members of that union. Substantial compliance or implied terms will not suffice because agency shop agreements entail a limitation of employees' constitutional and statutory rights, particularly the right to freedom of association. The Labour Court has jurisdiction to determine the validity of a collective agreement based on compliance with statutory formalities, as this is distinct from disputes concerning the interpretation of the terms and conditions of collective agreements which fall within the jurisdiction of bargaining councils or the CCMA.

The court noted that in the labour arena, a practical approach to interpreting collective agreements is generally the norm, and labour courts do more readily recognize implied or tacit terms in collective agreements, especially if these give effect to the purpose of the document. The court stated it may have been inclined to adopt such an approach if the essence of the matter rested on interpreting the terms and conditions of the agreement. However, this approach does not apply when determining compliance with statutory formalities required for the validity of an agency shop agreement. The court also observed that considering the relationship between the opposing parties, it was not appropriate to grant an adverse cost order.

This case reinforces the strict formal requirements for agency shop agreements under section 25(3) of the LRA as established in Greathead v SACCAWU. It clarifies that agency shop agreements must expressly and specifically provide that employees who are not members of the representative (majority) union are not compelled to become members of that union. The court emphasized that 'non-union members' in this context includes both employees who are not members of any union and those who are members of minority unions. The judgment is significant because it demonstrates that courts will not allow substantial compliance or implied terms when it comes to statutory formalities in agency shop agreements, given that such agreements limit employees' constitutional rights to freedom of association. The case also clarifies the Labour Court's jurisdiction to determine the validity of collective agreements on the basis of compliance with statutory formalities, as distinct from disputes about the interpretation of the terms and conditions of such agreements.