AMCU victorious In Sibanye-Stillwater court battle
21 December 2018
Today, the Labour Court found against the urgent application by Sibanye-Stillwater to declare the industrial action of the Association of Mineworkers and Construction Union (AMCU) unprotected. This would mean that members participating in industrial action, would stand the chance of being dismissed. However, the Court found that the verification exercise done by the Mine to bring AMCU’s membership down, could not be relied upon. AMCU’s strike is a protected strike and the AMCU members’ constitutional right to strike, remains protected. Judge Tlhotlhalemaje also found that the costs of the case should be borne by Sibanye-Stillwater.
The application by Sibanye-Stillwater was based on an argument that the three other unions at its operations, namely the National Union of Mineworkers (NUM), Solidarity and UASA, together form a majority. In terms of section 23(1)(d) of the Labour Relations Act (LRA), an employer has the right to agree with a majority union or a group of unions forming a majority, to extend a collective agreement to minority unions.
On 13 December 2018, Sibanye-Stillwater sent a notice to AMCU, indicating that it had agreed with the other unions to extend the wage agreement in terms of section 23(1)(d) of the LRA. It also threatened AMCU that because of this, the wage dispute is regarded as resolved, and therefore the industrial action would be rendered unprotected. It gave an ultimatum to workers to report for duty on Saturday, 15 December 2018, or face disciplinary action.
In its response to Sibanye-Stillwater on 14 December 2018, AMCU requested proof of the membership statistics used to arrive at the alleged majority and indicated that, until such evidence is presented, it would remain on strike.
Sibanye-Stillwater promptly approached the Labour Court on an urgent basis, serving papers on AMCU’s legal team the very next day. It was aimed at obtaining an order of court to declare the strike unprotected immediately, by enforcing section 23(1)(d). However, AMCU filed a substantial answering affidavit, which included proof of numerous new membership applications which indicated growth in AMCU numbers. It also questioned the founding affidavit of Sibanye-Stillwater, and specifically the facts relied upon. Despite the comprehensive answering affidavit filed by AMCU, the legal team of Sibanye-Stillwater did not think it necessary to file a replying affidavit, instead choosing to rely on their founding affidavit. The matter was subsequently set down for 18 December 2018 at the Johannesburg Labour Court in Braamfontein, first for 12:00, and then postponed to 15:00 that same day.
After Sibanye-Stillwater presented its case very briefly, Advocate Paul Kennedy SC tabled comprehensive arguments on behalf of AMCU, mostly focusing on creating serious doubt regarding the facts presented by Sibanye-Stillwater. He indicated how the mine’s conduct in not involving AMCU when doing membership verification was inherently unfair, and that Sibanye-Stillwater’s attempts to give credence to their figures by appointing a so-called independent auditor to verify same, were not convincing. Advocate Kennedy also focused on the statistics themselves, tabling various sets of evidence to show how certain facts have not been included in the verification process.
Late on the afternoon of the 18th, Judge Tlhotlhalemaje requested time to make a ruling, and eventually today (21 December 2018) was scheduled for same.
AMCU is elated about the victory for workers’ rights. Even though AMCU is facing constant attack by the unholy tripartite alliance of mining bosses colluding with the State and its alliance unions, we will remain steadfast in executing the mandate of our members. We know Sibanye-Stillwater will stop at nothing to pursue its agenda to break AMCU and to cast doubt to our members. As we see, they are targeting our members by dismissing them while they are on strike, in order to balance the scales of their membership fraud. Still, AMCU will protect the rights of our members in pursuance of better working conditions. We remain open for engagement with the employer, in order to arrive at a resolution to the wage dispute.