[19]
The first question that arises in relation to Mr Brassey’s primary contention is whether the strike
intended in this matter falls within the definition of a secondary strike. A fundamental element of the definition of a secondary
strike in terms of sec 66 is that the employees who seek to go on a secondary strike to support other employees must be employed
by an employer other than the employer who employs those they seek to support. The two groups of employees cannot be employed by
the same employer. In this case the appellant’s members employed by Jaff and Co Ltd in Kimberly seek to support the appellant’s
members employed by Jaff and Co Ltd in Johannesburg. The members of the appellant employed by NEWCLO (Pty)Ltd in Kroonstad seek to
support the appellant’s members employed by NEWCLO (Pty)Ltd in Johannesburg. In each case the two groups are employed by the
same employer. Mr Brassey sought to overcome this difficulty in his argument by pointing out that in this case there is an employers’
organisation involved. That is no answer to the difficulty. The employers’ organisation employs neither group. Its involvement
in the matter is primarily as a representative of the employers involved in this matter, namely, Jaff and Co Ltd and NEWCLO (Pty)Ltd.
It follows that there is no merit at all in the contention that the strike intended in this matte is a secondary strike. Accordingly,
the contention falls to be rejected. There was an argument presented on behalf of the respondent not by Mr Buirski who led for the
respondent but by Mr Hultey to the effect that the intended strike did not comply with the requirements of the Act as a secondary
strike if it was one because the notice that was sent to the respondent was sent before the strike notice for the “Northern Areas” strike was sent out and that a secondary strike notice must follow and not precede the primary strike notice. This argument is not
open to the respondent to advance because it is not part of its case in the papers. In any event it falls away once it is accepted,
as this Court has found, that the intended strike was not a secondary strike.
[20]
Mr Brassey’s alternative argument was that this strike is an ordinary strike which is governed
by the provisions of sec 64 as opposed to sec 66 and that, as such, all the requirements of the Act had been complied with and the
strike was protected. There are certain similarities between the facts of this matter and the facts in the Afrox matter (supra) and
in the Plascon Decorative matter. It is appropriate to deal briefly with each one of these cases.
[21]
In Afrox the employer operated its business from a number of branches throughout the country. One of
its branches was in Pretoria West. A dispute arose between the employer and SACWU, which was recognised union which members in many,
if not, all the employer’s branches. The employer wanted to introduce staggered shifts in the Pretoria West branch and the
union and the employees in that branch were opposed to that move. After all the statutory requirements for a legal strike had been
complied with, the employees employed in the Pretoria West branch went on strike. The employer accepted that that strike was legal
and, thus, protected. Subsequently and while the employees at the Pretoria West branch were still on strike, SACWU sought to call
all its members employed by the employer in the other branches out on the strike to pursue its demands in respect of the Pretoria
West branch.
[22]
The union believed that such a strike would be a secondary strike and called it a secondary strike. The
employer brought an urgent application to interdict such strike. The Labour Court had no hesitation in finding that the strike was
not a secondary strike as there was only one employer involved and the definition of “secondary strike” contemplated at least two employers, one being the employer of the employees who are n the primary strike and the other being the
employer of the intended secondary strikers. The Labour Court held in effect that a label did not affect the true nature of a strike.
In other words, if a strike was a primary strike, it did not become a secondary strike simply because someone called it a secondary
strike and vice versa.
[23]
Having found that the strike was not a secondary strike, the Labour Court went on to hold that the strike
constituted a primary strike. At 403I - 404C the Labour Court had this to say:-
“In my judgement once a dispute exists between an employer and a union and the statutory requirements laid down in the Act to
make a strike a protected strike have been complied with, the union acquires the right to call all its members who are employed by that employer out on strike and its members so employed
acquire the right to strike. Once SACWU acquired the right to call a strike against the applicant in respect of that dispute, its
members who are employed by the applicant acquired the right to strike if called upon by SACWU to strike. Once in that situation a union is under no obligation to call its members out on strike at the same time and it is free to commence
the strike with a small group of members and increase the number of its members participating in the strike as and when it considers
that to be appropriate unless it has waived such a right. In this case the union started by calling out on strike its members who
are employed by the applicant in its Pretoria West branch. Now it has called its members in the other branches out on strike. The
new Act does require that before members of a union can go on a protected strike, they should have been the ones who referred the
issue in dispute to a council or to the Commission for Conciliation, Mediation and Arbitration. What is required is that the issue
in dispute is that which is that the subject-matter of their strike [and] should have been referred to conciliation and the other
statutory requirements should have been met”.
[24]
The Labour Court therefore decided in the Afrox matter that employees based in one branch of an employer
were entitled to engage in a strike in support of the demands of their colleagues employed by the same employer in another branch if the strike in the latter branch is a lawful/protected strike. The application for an interdict was accordingly.
[25]
In Plascon Decorative, a judgement of this Court, Cameron JA, with Myburgh JP and Froneman DJP concurring, stated at 429I that the isue inthat case was “whether non-bargaining unit employees, whose conditions of service the strike demand did not directly affect, could embark
on an otherwise protected strike.” This Court continues in the same passage and said:-
“That parallels the question Zondo AJ dealt with in Afrox Ltd v SA Chemical Workers Union & others (1) above, where workers
employed by the same employer at different plants embarked on strike action. Zondo AJ concluded at 403I that, ‘once a dispute
exists between an employer and a union and the statutory requirements laid down in the Act to make a strike a protected strike have
been complied with, the union acquires the right to call all its members who are employed by that employer out on strike and its
members so employed acquire the right to strike? It follows that in my view this conclusion was correct.”
[26]
The decision of this Court in Plascon Decorative was therefore that non-bargaining unit employees have
a right to strike in support of the demand of their co-employees in another bargaining unit in support of the demands of the later
employees if all the requirements of the Act which are necessary for there to be a protected strike have been complied with.
[27]
The Court a quo was referred to the Afrox and the Plascon Decorative cases. The Court a quo appears to
have taken the view tha tthe employees employed by Jaff and Co Ltd in Kimberly and by NEWCLO (Pty)Ltd in Kroonstad were obliged to
follow the dispute resolution procedures prescribed in the Main Agreement of the “Free State and Northern Cape” Bargaining Council before they could embark on the intended strike. It is this that the Court a quo viewed as a distinguishing factor between this matter, on the one hand, and, the Afrox and Plascon
Decorative matters, on the other. At page 4 to 5 of its judgement, the Court a quo said:-
“The dispute resolution procedures, which are a prerequisite to protected strike action and must first be followed and exhausted
by employees falling within the jurisdiction of the regional bargaining council in which they are employed are defined in the collective
main agreement applicable to those regions. The fact that employees falling under different bargaining councils may be employed by
the same employer cannot ipso facto remove those employees from the jurisdiction of the council, or, exempt them from the provisions
and operation of the collective agreement effective in the area of their employment. In each of those agreements the term ‘employee’
is defined as meaning ‘those employees falling within the jurisdiction of the scope of the bargaining council concerned.”
[28]
Later on the Court a quo emphasised that “no demand had been made, no dispute had been declared by the [appellant] withing the ambit of the Free State and Northern Cape
Bargaining Council” It continued and said that “no dispute resolution procedures have been invoked and pursued, on any basis which would clothe ensuing strike action with
the protection afforded by section 64 and 67 of the Act.”
[29]
Before us Mr Buirski sought to defend the decision of the Court a quo on the very basis on which the
Court a quo came to the conclusion that the intended strike would not be a protected strike, namely, that there was an obligation
for compliance with the dispute procedure prescribed in the main agreement of the “Free State and Northern Cape” Bargaining Council. This is not the law. This proposition loses sight of certain important matter. Id deal with these below.
[30]
The strike, which the employees of Jaff and Co Ltd in Kimberly and of NEWCLO (Pty)Ltd in Kroonstad were
to participate in, was to be in support of the issue in dispute which was the subject of the strike in the Northern areas and not
any dispute or issue in dispute within the are of jurisdiction of the “Free State and Northern Cape Bargaining” Council. In other words the intended strike was going to be in support of the demands of the employees in the Northern Areas. Those
demands related to the amendment of the Main Agreement of the “Northern Areas” Council. In other words the intended strike was going to be in support of the demands of the employees in the Northern Areas. Those
demands related to the amendment of the Main Agreement of the “Northern Areas” Bargaining Council. The demands which the intended strike was going to support were not fothe amendment for the Main Agreement of
the “Free State and Northern Cape” Bargaining Council. In the light of this it must be clear that the “Free State and Northern Cape” Bargaining Council, which is the council to which, on Mr Buirski’s submission, the “Northern areas dispute” would have had to be referred for conciliation, would not have had jurisdiction to deal with such dispute. This is so because both
the dispute as well as the parties to that dispute fell outside that council’s jurisdiction.
[31]
More importantly, the dispute which the intended strike sought to bring to an end had already been referred
to the bargaining council with the requisite jurisdiction for conciliation and such attempts had failed. After all the statutory
requirements required to be complied with before there could be a strike had been complied with, a protected strike had been embarked
upon. The same dispute could not be referred to conciliation for the second time. The requirement in sec 64 that the issue in dispute
be referred to the Commission for Conciliation Mediation and Arbitration or to a bargaining council with jurisdiction for conciliation
is a requirement that the issue in dispute be referred to a bargaining council, where there is one with jurisdiction, which has jurisdiction
in respect of such issue in dispute. A bargaining council cannot conciliate a dispute in respect of which it has no jurisdiction.
[32]
In response to a question from the Bench and realising the jurisdictional difficulty that is raised by
the submission that there should have been a referral of the dispute to the “Free State and Northern Cape” Bargaining Council, Mr Buirski sought to argue that he dispute that was required to be
referred to conciliation before this intended strike could take place was the dispute about the amendment of the Main Agreement of
the “Free State and Northern Cape” Bargaining Council. However, this argument met with the difficulty that the strike was not one that related to that dispute. It was
a strike in support of the employees’ demands in the dispute which was the subject of the strike in the Northern areas. Mr
Buirski could not overcome this difficulty. In the light of the this Mr Buirski’s contention fell to be rejected. In my view
the fact that the employees seeking to go on strike in this matter are subject to a different bargaining council with a different
main agreement is of no materiality as the intended strike is in support of the employee party’s demands in a dispute falling
within the jurisdiction of another council. In the result I conclude that the ratio decidendi in Afrix and Plascon Decorative applies
in this matter. Accordingly the Court a quo erred in concluding that such strike would be unprotected. It will be a protected. It
will be a protected strike.
RMM Zondo
Judge President
I agree
I agree
CR Nicholson
N. Page
Judge of Appeal
Acting Judge
of Appeal
Date of Order: 6 September 2001
Date of reasons: 29 October 2001
For the Appellant: Mr M.S.M. Brassey SC
Instructed by: Cheadle Thompson and Haysom
For Respondent: Mr Buirski (with Mr Hulley)
Instructed by: Borman Synman & Barnard
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