Afrox Limited v SA Chemical Workers Union and Others (1) 1997 18 ILJ 399 (LC)
Employees falling outside the bargaining unit to which the issue in dispute relates may engage in strike action provided they share the same objectives of the employees in respect of whom the demand has been made.
The company attempted to interdict the union from continuing with a strike by its members employed by the company at other branches. A protected strike had been called at one branch over a dispute relating to staggered shifts, and this had spread to other branches. The union called this a ‘secondary strike’. The court found it wasn’t a secondary strike as the same employer was involved, but said the union was not restricted in its protected strike to only calling out its members employed at the branch to which the dispute related.
Extract from the judgement
When I pointed out to Mr Franklin that it seemed to me that all that s 64(1)(a) (other than s 64(1)(a)(i) and (ii)) required to be done before 'every employee' as envisaged in s 64(1) acquires 'the right to strike' as stated in s 64(1) is that the issue in dispute should have been referred to a council or commission as envisaged, he submitted that 'issue of dispute' in s 65(1)(a) must, as I understood his argument, be read as meaning 'issue in dispute between the parties'.
I have come to the conclusion that on the papers before me the conduct which the employee respondents are engaged in falls within the ambit of the definition of strike in the new Act and, as such, constitutes a primary strike. The fact that the union calls this strike a secondary strike is neither here nor there. If, in reality, and in law the conduct of the employee respondents constitutes a primary strike, a pronouncement by SACWU that it is a secondary strike does not and cannot alter the true character of that conduct as a primary strike. That strike is not different from or separate from the strike which SACWU's members at the applicant's Pretoria West branch have been engaged in since 11 January 1997 and which is at present in progress nor is it about a different dispute. There is only one dispute. The parties to the dispute are SACWU and the applicant and the dispute is about SACWU and Afrox Ltd's inability to reach agreement on staggered shifts at the Pretoria West branch of the applicant. That is the issue in dispute as envisaged by s 64(1)(a) of the new Act. In respect of that issue in dispute SACWU already made an application for the establishment of a conciliation board. The conciliation board met but failed to resolve the dispute after which the union acquired the right to call out its members on strike as long as all statutory requirements were met to make the strike a protected strike. There appears to be no complaint forthcoming from the applicant that there is any statutory requirement which has not been complied with in respect of the strike that commenced on 11 January 1997. Indeed the applicant has not sought to have that strike interdicted.
In my judgment 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 not 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 the subject-matter of their strike [and] should have been referred to conciliation and the other statutory requirements should have been met.
In general, where a dispute exists between a union and an employer, the union is entitled to call out on strike all its members employed by that employer wherever they may be so as to bring the full might of its members to bear on the employer in order to pressurize him to agree to the union's demands. This is one of the benefits which a union has in mind when it recruits members, namely that the more members it has the stronger its muscle will be. To say that a union may not resort to calling out on strike all its members employed by an employer against whom it has a dispute so as to end the dispute is to deny it one of its very important weapons. For a conclusion to that effect to be arrived at there would have to be an express or necessarily implied provision in the Act either taking away such a right or limiting such a right. In the new Act generally and chapter IV in particular including s 64 which grants 'every employee' the right to strike and s 65 which deals with limitations on the right to strike I am unable to find such a provision and I was not referred to any.