Afrox Limited v SA Chemical Workers Union and Others (1) 1997 18 ILJ 399 (LC)

Afrox Limited v SA Chemical Workers Union and Others (1) 1997 18 ILJ 399 (LC)

LABOUR COURT A
JOHANNESBURG

February 17, 1997

Before ZONDO AJ B

JUDGMENT

ZONDO AJ:

Earlier on today I heard an urgent application in the above matter. Due to the urgency of the matter I have had to give judgment this afternoon. I would have preferred to have had more time to deliberate on the matter before I could give my judgment but due to the urgency of the matter, I have had to give my judgment without delay.

Afrox Ltd, the applicant in this matter, which carries on business as a manufacture and distributor of various gases including medical gases, operates various branches inter alia at Vanderbylpark, Germiston, Trigaardt, Benoni, Wits West, the engineering contracts department, the gas equipment factory, Klerksdorp, Central Witwatersrand, Pietersburg, Roodekop, Witbank and at Pretoria West. The SA Chemical Workers Union (SACWU) a registered union has members who are employed by the applicant in the various branches referred to above and elsewhere and is the sole bargaining agent for its members employed by the applicant.

The applicant has brought an urgent application before this court against SACWU (which is the first respondent) and a number of employees who are members of SACWU and employed by the applicant in its branches which I have set out above. SACWU's members who are employed by the applicant in the latter's Pretoria West branch have not been joined in these proceedings. The applicant seeks an order the effect of which is to interdict conduct which has been engaged in by members of SACWU who are employed by the applicant in its branches to which I have referred above (other than the Pretoria West branch) which conduct SACWU has labelled as a secondary strike.

The background to this matter is that SACWU and the applicants have a recognition agreement which the two parties concluded on 20 April 1995 in respect of the Pretoria West branch. A dispute arose between SACWU and the applicant about SACWU's unpreparedness to have staggered shifts worked by its members at the applicant's Pretoria West branch. As a result of this dispute SACWU made an application for the establishment of a conciliation board in terms of s 35 of the Labour Relations Act 28 of 1956 (the old Act). The dispute was described by SACWU in its conciliation board application as 'the failure of the parties to reach a settlement on the implementation of staggered shifts'.

Only SACWU is mentioned as the applicant in the conciliation board application. A conciliation board meeting was apparently held sometime in December 1996 but the dispute remained unresolved after that meeting.

SACWU's members employed at the Pretoria West branch commenced their strike on 11 January 1997. It would appear that there is no complaint by the applicant that the strike which was embarked upon by SACWU's Pretoria West branch members on 11 January 1997 and which is still in progress at the moment is in contravention of any of the provisions of the Labour Relations Act 66 of 1995 (the new Act).

The applicant's complaint is that SACWU's members who are not employed at the applicant's Pretoria West branch but who are employed at the other branches referred to above have also gone on strike. It seems they are demanding that the applicant should not introduce, or continue with, staggered shifts at the Pretoria West branch which is apparently the same demand as that of SACWU and its Pretoria West branch members; in the applicant's contention SACWU's members who are not employed at the applicant's Pretoria West branch are not entitled to engage in the conduct they are engaging in which their union has called a secondary strike.

In coming to this court the applicant has said SACWU's members who are employed in the other branches (and I will call them employee respondents herein) are at present on strike and their union has informed the applicant that the strike the employee respondents are engaged in is a secondary strike. In the applicant's view that conduct cannot possibly constitute a secondary strike, and as, at any rate, there has been no compliance with the statutory requirement of notice applicable to a secondary strike, the court should interdict it. One of the grounds on which the applicant says the 'secondary strike' by the employee respondents is a contravention of the new Act is that there is only one employer involved and not two employers whereas the definition of a secondary strike under the new Act envisages two employers. The definition of a secondary strike in the new Act reads thus:

'Secondary strike means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against the employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.'

The applicant has approached this matter on the basis that the conduct complained of is not a secondary strike. I have also approached it on this basis because I think that is actually correct. During argument I put to applicant's counsel my concern that, for me to be able to grant the applicant an order such as the one it seeks, I would need to be satisfied that the applicant had made out a case that the employee respondents' conduct in refusing to work as they do is a contravention of the Act and that the first respondent is not entitled to call out the employee respondents on a strike on the matter that they have been called out on. In the context I invited counsel to address me on the issue whether, putting aside for the moment the label which SACWU has given to the conduct of the employee respondents, it cannot be said that the conduct of the employee respondents falls within the ambit of a primary strike and whether, if it is a primary strike, it can be said that it is in contravention of any of the provisions of the Act. The idea was that if the strike which the employee respondents have engaged in is a primary strike, and SACWU simply gave it a wrong label and called it a secondary strike, then, in that event, there may be no basis for this court to issue an interdict because that primary strike may well be a protected strike.

I deal with the submissions which Mr Franklin, who appeared for the applicant, made in regard to this point. Firstly he submitted that, because SACWU has labelled the conduct of the employee respondents as a secondary strike, the applicant is entitled to come to court and seek to interdict such secondary strike and, if it is SACWU's case that this is a primary strike, then SACWU should have come to court to state that case. Applicant's counsel seemed to suggest that, in SACWU's absence in court, the applicant was entitled to interdict that conduct which SACWU calls a secondary strike irrespective of whether or not it in fact and in law is a secondary strike. I do not agree that the applicant is entitled to have an interdict issued in its favour against the employee respondents simply on the strength of the label that the union gives to that conduct even if, in law and in reality, that conduct is not that which the union calls it.

As Shakespeare said, a rose by any other name would still smell like a rose. Accordingly a primary strike by any other name would by any other name still be a primary strike. Accordingly, although it may be helpful for parties to know whether the conduct engaged in is meant to be a secondary strike or a primary strike, I am of the view that, where conduct of employees which is sought to be interdicted is alleged to be a secondary strike, the court should, if it is asked to interdict such conduct, satisfy itself that such conduct does not constitute a primary strike or part of a primary strike. This is important because, if this is not done, the court may well interdict conduct which is a protected primary strike just because it does not meet the requirements of a secondary strike whereas, those participating in such conduct are entitled to certain benefits under the Act one of which is that this court cannot interdict a protected strike.

The other submission which Mr Franklin made to support his argument that, if the conduct the employee respondents are engaged in is a primary strike, they are nevertheless not entitled to engage in such conduct is that they are not party to the dispute which was referred to the conciliation board and, for that reason, their engaging in a primary strike would be in contravention of s 64(1)(a) of the Act in that the issue in dispute has not been referred to a council or to the Commission for Conciliation, Mediation and Arbitration. As I understood Mr Franklin's argument he meant that, if the employee respondents can be said to be on a primary strike, then the issue in dispute between them and the applicant has not been referred to conciliation I and, for that reason, their primary strike would be unprotected for lack of compliance with s 64(1)(a) in terms of referring it to conciliation.

I pause here to refer to the definition of the phrase 'issue in dispute'. 'Issue in dispute' is defined in the definitions section of the Act as meaning 'in relation to a strike or lock-out the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out'. While I am on definitions let me deal as well with one other definition which I think it is important to refer to in this matter. I have already referred to the definition of secondary strike above. The definition I wish to refer to now is that of a strike. A strike is defined in the new Act as meaning:

'the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to 'work' in this definition includes overtime work, whether it is voluntary or compulsory'.

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 F 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 this regard I am mindful of the sentiments which were expressed by Page in the matter of NTE Ltd v Ngubane & others (1992) 13 ILJ 910 (LAC) under the old Act where he held, as I recall, that just because an employer was not the one who had referred to a conciliation board the dispute over which he was locking workers out, did not mean that the employer could not lock the workers out and still be within the provisions of s 65 of that Act. In this case it seems to me that, on the applicant's argument, if the employee respondents were adversely affected by the fact that the dispute between SACWU and the applicant about staggered shifts remains unresolved to their detriment, they either would have nothing to do about it legally because they could not engage in a secondary strike since there is only one employer nor could they engage in the same primary strike which commenced on 11 January 1997. They would only watch helplessly, despite the fact that they belong to the same union and are employed by the same employer as the Pretoria West branch employees. Actually on the applicant's scenario, whereas the employee respondents would not be able to go on a strike (primary or secondary) themselves, employees who are employed by another employer who may have absolutely nothing to do with either SACWU (except being for example employed by a company which has business dealings with the applicant, eg a customer) may themselves be able to do something about the dispute. They may be able to go on a secondary strike and, because there will be two separate employers involved, their conduct would be capable of falling within the ambit of a secondary strike as defined in the Act. It seems to me that this cannot be correct, namely, that a member or a group of members of a union in one branch of a company cannot go on strike to help end a dispute between their employer and their union just because that dispute might not be effecting them as directly as their other co-union members employed by the same employer in another branch, but employees who are employed by another employer and who may not be members of the union can do something about it and can go on a secondary strike.

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.

Furthermore, I cannot see what a union would be expected to do if it wished to ensure that participation in the same strike by its members employed by the same employer in other branches on the same dispute remained a protected strike even though the issue in dispute might be said to directly effect only those members of the union in a particular branch. The only thing I can think of is that it should have listed in the conciliation board application all those members. That is in my view too technical and is not required by the statute. The applicant's argument, if taken to its logical conclusion, would mean that where the issue in dispute directly affects only two employees then those are the only two members that a union can call out on strike. To take this a step further, if a dispute only affects one member of a union (and if it is a dispute of interest) and therefore cannot be referred to arbitration or to this court, then the union cannot call a strike over that issue - because one person cannot strike since a strike is a collective action. That, with respect, cannot be correct.
In the circumstances it appears that the strike engaged in by the employee respondents and called by SACWU in other branches of the applicant is not, on the information before me, a secondary strike and, for that reason I cannot interdict it on any basis that is applicable only to secondary strikes. Also I am not satisfied that the strike (which, as I have said, is a primary strike) is one which is unprotected in the sense that it does not comply with the requirements of the Act. In the circumstances the applicant's application falls to be dismissed, and, it is so ordered.