Is individual or parallel consultation required when embarking on a s189 exercise?
In Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Ltd and Others (2020) 31 SALLR 1 (CC), the following was stated:
- the procedural requirements for a fair consultative process are set out in s189 of the LRA. Since the introduction of the LRA, as will be shown below, our jurisprudence has consistently interpreted s189 to exclude any requirement of individual or parallel consultation in the retrenchment process outside the confines of the hierarchy created in s189(1); and
- the tone was set in the labour court twenty years ago in Sikhosana and Others v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC). Commenting on s189, Brassey AJ stated:
‘It is impossible to believe that this hierarchy of obligations is anything but intentional: care has too obviously been taken in the choice of language to permit the conditional clauses to be dismissed as mere rhetorical flourishes. The interpreter is driven to the conclusion, therefore, that an employer, to satisfy [its] obligations under the subsection, need only consult the employees likely to be affected by the proposed dismissals (or their representatives) if there is no registered union whose members are likely to be effected by the dismissal, no workplace forum in the workplace in which the dismissal might occur and no collective agreement governing consultation. The union, in turn, need be consulted only if there is no such workplace forum and no such collective agreement, and so on up the ladder. Under the unfair labour practice jurisdiction of the previous Act, there were suggestions that the employer had a duty to consult at two levels: first with the collective bargaining representative on matters such as the need to retrench and the criteria for retrenchment, then with the prospective retrenchees over matters specific to their individual future and fate. Section 189(1) quite deliberately renounces dual consultation in favour of the single level of consultation for which it provides. The change evinces, I take it, more than just a concern to make the process of consultation simple and speedy: it embodies a desire, evident elsewhere in the Act too, that bargaining and consultation should be collective rather than individual and that the legitimacy of the representative with the best claim to be consulted should not be undermined by the claims to consult made by lesser interests. The effect of the section, thus, is to vest the appropriate collective representative with sole power of representation; if others claim the right to be consulted, they must look beyond the section, indeed beyond the Act, and point to some juristic act an agreement, undertaking or commitment of some sort in terms of which the employer concedes that [it] will engage in such consultation.’