WORKPLACE: What factors determine whether a “workplace” qualifies as a bargaining unit?

LABOUR LAW in a Nutshell March 2022

WORKPLACE: What factors determine whether a “workplace” qualifies as a bargaining unit?



To start with – there’s no mention of a “bargaining unit” in the LRA as there was in the 1995 LRA. And there’s no statutory “duty to bargain”.

There’s such a wide variety of places where employees work, and which could be treated as bargaining units. So, it’s impossible for the law to prescribe a “one size fits all” definition or formula for what could be a workplace for the purpose of collective bargaining.

The best it can do is to provide guidelines in the definition of a “workplace”. It’s then up to employers and unions to use them to define the most appropriate bargaining unit for their work situations.

Section 11 of the LRA says a trade union qualifies for bargaining rights if it has “sufficient membership in the workplace”. And section 213 (c) defines a ‘workplace’ as –

“…the place or places where the employees of an employer work.”

So far so good…but there’s more –

“If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”.

The Constitutional Court considered how these factors should be applied in AMCU v Chamber of Mines & Others

The Chamber represents mining companies in wage negotiations with NUM, Solidarity and UASA who have majority membership in the gold sector. AMCU had a majority at 5 mines but not across the whole sector. It wanted to negotiate wages for its members at the 5 mines where they had majority membership. It claimed that each mine was a “workplace”.

The employers said No. This was because AMCU’s members were bound by the collective agreement covering the whole gold sector in terms of s23 (1) (d) of the LRA.

The CC agreed with the Chamber and earlier rulings of the LC and LAC on this point. It said that the primary factor is “functional organization” – “location” is a secondary factor. A workplace is where employees work collectively. It’s not a place where a single employee works. And it may be a single location or a number of locations.

The factors to determine the “functional organization” of an operation are the independence of the operation and its size, function, and organization.

On the facts of the AMCU case, the CC found that the 5 mines at which AMCU had majority membership, were not independent operations. Each mining company constituted a single industry-wide workplace. This was even though some of the companies had concluded separate recognition agreements with AMCU at individual mines,

TIP: Unions usually prefer centralised as opposed to plant based-bargaining units. This gives them more collective clout – and one, instead of many separate bargaining forums. Businesses usually prefer the opposite. They consider each plant (factory, office, site, store etc) as stand-alone profit centres with their own cost structures. The degree of each plant’s “functional organisation” will determine whether it qualifies as a separate bargaining unit.


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(CCT87/16/ [2017] ZACC 3 (21 February 2017).
Edited by Sarah Christie


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