Amcu president Joseph Mathunjwa. Picture: FREDDY MAVUNDA
Amcu president Joseph Mathunjwa. Picture: FREDDY MAVUNDA

The Constitutional Court has dismissed an application by the Association of Mineworkers and Construction Union (Amcu) for leave to appeal against a lower court’s judgment on retrenchments at Royal Bafokeng platinum mine five years ago.

Amcu approached the top court to challenge the constitutionality of certain sections of the Labour Relations Act (LRA), after failing to convince the labour court and subsequently the labour appeal court to overturn the axing of its 103 members by the mine in September 2015.

Section 23(1)(d) of the LRA allows an employer and a majority trade union to conclude and extend a collective agreement to employees or members of a union that are not party to the agreement. Section 189(1) provides for employers to consult workers or any workplace forum before retrenching.

The workers were retrenched after the platinum mine reached a retrenchment agreement with the National Union of Mineworkers (Num), which was a majority union at the time, and the United Association of SA (Uasa) in March 2015. Both Amcu at Uasa were minority unions at the time. After the Marikana massacre of August 2012, Amcu became the majority union in SA’s platinum industry.

The retrenchment agreement was extended to Amcu members, but the union said it knew nothing about the agreement before launching its legal challenge to the dismissals. Amcu had argued at the labour court and the Labour Appeals Court that the collective agreement on the retrenchments was “constitutionally objectionable”, as it excluded minority unions. Extending it was equally constitutionally objectionable.

However, on Thursday, in a majority judgment penned by justice Johan Froneman, the Constitutional Court poked holes in Amcu’s arguments, saying section 189(1) did not limit the right to fair labour practices as it does not guarantee a right to individual consultation in retrenchment processes. It held that even if the section did limit the right to fair labour practices, such limitation would be justifiable.

The top court further held that the right not to be unfairly dismissed is sourced in the LRA and not the constitution. It said that because the decision to retrench was not based on individual conduct there could be no need for individual consultation.

However, a minority judgment penned by justice A Ledwaba, and concurred with by the chief justice, Mogoeng Mogoeng, and justices Chris Jafta and Mbuyiseli Madlanga, held that section 189(1) was unconstitutional, as it limited the right to fair labour practices guaranteed in section 23(1) of the constitution.

Amcu general secretary Jeff Mphahlele said the union would respond on Friday to the judgment. Royal Bafokeng Platinum investor relations executive Lindiwe Montshiwagae could not be reached immediately for comment.

mkentanel@businesslive.co.za