Association of Mineworkers & Construction Union on behalf of Members v Commission for Conciliation, Mediation & Arbitration & others (2018) 39 ILJ 1303 (LC)

/ / News, 2018, Mining Law


The factual matrix from which this judgment originates concerns a dispute between AMCU (“the Trade Union”) and Murray & Roberts (“the Employer”). At the heart of contentions between the parties was the Trade Union’s ability to acquire organisational rights from the Employer.  The Employer maintained that a contract had been concluded between the respective parties which prohibited and constrained the Trade Union in the attainment of organisational rights. The court probed the substantive provisions and prevailing precedent which governed this area of collective labour law in coming to its findings.

The court was mindful of the following provisions which govern collective labour law, namely Section 12, 13 and 15 of the Labour Relations Act No. 66 of 1995 (“LRA”).

The court scrutinised the abovementioned contract and found that it was erroneous, unduly restraining the Trade Union’s access to organisational rights, being concluded under a misconception of prevailing legislation and precedent.

In making its decision the court was cognisant that the Trade Union (as a majority representative trade union in the workplace) qualified for the organisational rights in terms of Section 12, 13, 14, 15 and 16 of the LRA. Furthermore, the court noted that as a sufficiently representative trade union, it qualified for the organisational rights in terms of Section 12, 13 and 15 of the LRA.

The court relied on judicial authority, applying the principles in National Union of Metalworkers of SA & others v Bader Bop (Pty) Ltd & another (Bader Bop), finding that nothing precluded a trade union from procuring organisational rights by negotiating directly with an employer.

The court noted that the abovementioned contract had been concluded under a misunderstanding of organisational rights, both parties failing to appreciate the implications and importance of organisational rights in the workplace. The contract captured a common mistake which unlawfully curtailed the Trade Union’s ability to engage with the employer on workplace matters.


In light of the content of Section 12, 13 and 15 of the LRA (read with the Bader Bop judgment) the Trade Union was permitted to negotiate directly with the employer in order to obtain organisational rights.

In coming to its findings the court was mindful of freedom of association and majoritarianism (two fundamental pillars of collective labour law). The court acknowledged that the contract hindered and impaired the Trade Union from asserting its statutory organisational rights, not being congruent with prevailing legislation and precedent. The court gave the discretion to the parties to decide the path this matter should proceed.


This judgement highlights the protections afforded to trade unions in the context of freedom of association (a right entrenched in the constitution) notwithstanding the fundamental pillar of majoritarianism in collective labour law in South Africa. The court recognised the need to prevent a proliferation of trade unions in the workplace but was mindful of the importance of organisational rights as a tool of leverage, enabling the trade union to represent the rights of employees and ultimately creating equilibrium in the workplace.

Written by John Mackechnie and supervised by Heidi Barter, 18 July 2018

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