South Africa Clothing Textile Workers Union v Free State and Northern Cape Clothing Manufacturers' Association (JA28/01) [2001] ZALAC 13 (29 October 2001)

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[2001] ZALAC 13
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South Africa Clothing Textile Workers Union v Free State and Northern Cape Clothing Manufacturers' Association (JA28/01) [2001] ZALAC 13; [2002] 1 BLLR 27 (LAC); (2001) 22 ILJ 2636 (LAC) (29 October 2001)

37
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
(HELD AT
JOHANNESBURG CASE NO: JA28/01
In the matter between
SOUTH AFRICA CLOTHING
TEXTILE Appellant
WORKERS UNION
And
FREE STATE AND NORTHERN
Respondents
CAPE CLOTHING MANUFACTURERS’
ASSOCIATION
JUDGEMENT
__________________________________________________________
ZONDO JP
Introduction
[1] Pursuant to hearing argument
in this appeal on an urgent basis on the 4
th
September
2001, this Court handed down an order on the 6
th
September
2001. The order that was handed down was in the following terms:.
“
1. The appeal is upheld with
costs which, by agreement between the parties, shall include the
costs in the Court a quo.
The order of the Court a quo is set aside and is
replaced by the following one:-
“
The application is dismissed.”
2. This Court indicated then that it would furnish its
reasons for the order indue course. These are they.
[2] The clothing industry in South Africa has five
bargaining councils. One of them is the
“Free State and
Northern Cape”
Bargaining Council which has jurisdiction in
the Free State and Northern Cape Provinces. Another one is the
“Northern
Areas”
Bargaining Council. This one has
jurisdiction in the areas falling under the former Transvaal. The
others are the
“Western Cape”, “Eastern Cape”
and
“Natal”
Bargaining Councils.
[3] The appellant is a registered trade union which has
its members a number of employees employed by employers in the
clothing
and textile industry throughout South Africa. It is party
to each one of these councils. The respondent is a registered
employers’
organisation whose members are involved in the clothing
industry in the Free State and Northern Cape Provinces. The
respondent
is the sole employer party to the
“Free State and
Northern Cape”
Bargaining Council. It has only two members,
namely, a company called Jaff and Co Ltd and NECLO (Pty) Ltd about
which more later
[4] The chairman of the respondent is one Mr. Jaff.
Mr. Jaff is also chairman and managing director of Jaff and Co Ltd.
Jaff and
Co Ltd has its head office in Johannesburg. It has a
manufacturing branch in Kimberly. This means that Jaff and Co Ltd
has operations
in, at least, two areas, namely, Johannesburg and
Kimberly. Its head office operation falls under the jurisdiction
of the
“Northern Areas”
Bargaining Council. Jaff and Co
Ltd’s branch in Kimberly falls under the jurisdiction of the
“Free
State and Northern Cape”
Bargaining Council.
[5] For purposes of the branch in Kimberly, Jaff and
Co Ltd is a member of the respondent. For purposes of its head
office in
Johannesburg, Jaff and Co Ltd is a member of an employers’
organisation called the Transvaal Clothing Manufacturer’s
Association
(
“TCMA”
). TCMA is a member of the employer
party to the
“Northern Areas”
Bargaining Council. The
appellant is a member of the employee party to this bargaining
council as well as a member of the employee
parties to each one of
the other bargaining councils including the
“Free State and
Northern Cape”
Bargaining Council.
[6] It will be seen from the above that the two areas
from which Jaff and Co Ltd operates, namely, Kimberly and
Johannesburg,
fall under the Free State and Northern Cape
bargaining. The Johannesburg one falls under the Northern Areas
Bargaining Council.
[7] NEWCLO (Pty) Ltd also operates in areas that fall
under two different bargaining councils. Like Jaff & Co Ltd,
Newclo (pty)
Ltd has its head office in Johannesburg. It also has a
branch in Kroonstad. Its head office falls within the jurisdiction
of the
“Northern Areas”
Bargaining Council. Its branch
in Kroonstad falls under the area of jurisdiction of the
“Free
State and Northern Cape”
Bargaining Council.
[8] There is no formal central bargaining structure
for the clothing industry. However, the various clothing bargaining
councils
come together annually and negotiate wage rates and other
terms and conditions of employement contained in their respective
main
agreements in an informal forum that they call the National
Bargaining Forum. This has been the practice since 1993.
[9] Each year each council passes a resolution to
negotiate the wage rates and other terms and conditions of
employment contained
in its Main Agreement at the national
Bargaining Forum. If agreement is reached at the National
Bargaining Forum each Council
“adopts”
that agreement and
incorporated its provisions in its Main Agreement. Each council
then requests the Minister of Labour to extend
its agreement to
non-parties within its registered scope.
[10] In May this year the appellant sent its
negotiation proposals or demands to each employer party in the
various clothing bargaining
councils as well as to each clothing
bargaining council. The appellant’s proposals or demands in
respect of each bargaining
council were identical. After Mr Jaff
had attended a number of meetings at the National Bargaining Forum
in his capacity as a
representative of the respondent, an agreement
was reached between the appellant and the respondent that the
respondent did not
need to attend further meetings of the NBF. It
was agreed that, once agreement had been reached between the
appellant and other
employer organisations at the NBF, the
respondent and the appellant would then commence negotiations on the
appellant’s proposals
to the respondent for purposes of the Main
Agreement of the
“Free State and Northern Cape”
Bargaining
Council in accordance with previous practice.
[11] The negotiations at the NBF failed. The appellant
then started pursuing its demands in other councils separately but
did not
do as yet in respect of the
“Free State and Northern
Cape”
council. In some councils, like the
“Natal”
one, the negotiations produced a settlement. This also happened in
the Eastern Cape as well as in the Western Cape ones. In the
“Northern Areas”
Bargaining Council the negotiations
failed to produce a settlement. The appellant then complied with all
the requirements of sec
64 of the Labour Relations Act, 1995 (Act No
66 of 1995) (
“the Act”
) in respect of the
“Northern
Areas”
Bargaining Council in order to be able to call a
protected strike. The respondent accepted that that strike was a
protected strike.
The employees employed by Jaff and Co Ltd and
NEWCLO Ltd in their Johannesburg offices respectively who are
members of the appellant
were participate and, ultimately did
participate in such strike.
[12] Either just before such strike could commence or
soon after it has started and while it was continuing, the appellant
sent
a notice to Jaff and Co Ltd as well as to NECLO (Pty) Ltd a to
the effect that its members employed by Jaff and Co Ltd in its
Kimberly
branch and NEWCLO (Pty) Ltd in its Kroonstad branch would
be going on strike. In such notice the appellant stated that the
strike
that its members employed by Jaff and Co Ltd in Kimberly and
by NECLO Ltd in Kroonstad would embark upon would be a
“secondary
strike”
in support of the demands made by the appellant in
respect of the wage rates and terms and conditions of employment in
the Main
Agreement of the
“Northern Areas”
Bargaining
Council. As already stated, the main agreement of such council
covers, among others, those employees employed by Jaff
and Co Ltd
and NEWCLO (Pty)Ltd who are barred in those companies’ respective
offices in Johannesburg. The notice read thus:-
“
18 August 2001
To: JAFF and Company
From: SACTWU
ATTN: THE MANAGING DIRECTOR
STEVEN JAFF
Dear Sir
re: WRITTEN NOTICE OF SECONDARY STRIKE IN TERM OF
SECTION 66(2)(B)
OF THE
LABOUR RELATIONS ACT 66 1995
Please take notice that the Southern African
clothing and Textile Workers Union (SACTWU) hereby give written
notice of the commencement
of the secondary strike in terms of
section 66
of the Labour relations Act 66 of 1995 at Jaff and
Company in Kimberly.
The abovementioned secondary strike shall commence
on Thursday 23 August 2001 as from 06h00.
Take further notice that the abovementioned
secondary strike is in compliance with
Section 66
of the
Labour
Relations Act 66 of 1995
.
The abovementioned secondary strike is in support of
the primary strike by the Clothing and Garment knitting employees
falling within
the jurisdiction of the Northern Areas Bargaining
Council.
The primary strike is in compliance with
section 64
and
Section 85
of the Labour relations Act 66 of 1995 notice of
which was given in terms of section 64(1)(b) on 16 August 2001.
Take further notice that this notification applies
to all employees of Jaff and Company who are members of Southern
African Clothing
and Textile workers union.
Yours sincerely.
WAYNE VAN DER RHEEDE
NATIONAL ORGANISING SECRETARY”
NECLO (pty) Ltd received a notice in similar terms in
respect of its employees based in Kroonstad who are members of the
appellant.
[13] The strike notice prompted Mr Jaff the chairman of
the respondent who, as already stated above, is also chairman and
managing
director of Jaff and Co Ltd, to write to the appellant on
behalf of the respondent on the 17
th
August. It is
interesting to note that, although that letter is on the letter head
of the respondent who jurisdiction is limited
to the provinces of
Northern Cape and Free Stat, the respondent’s physical and postal
addresses which appears on that letter
are Johannesburg addresses
which obviously is outside its territorial jurisdiction. Those
addresses are probably the same as those
of Jaff and Co Ltd’s Head
offices.
[14] In its letter the respondent adopted the attitude
that the intended strike did not comply with s 66(1) of the Act and
that,
because of that reason, it would bring an application to the
Labour Court to interdict such strike unless the appellant
reconsidered
its decision to pursue a strike of the employees
employed by Jaff & Co Ltd in Kimberly and by NECLO Ltd in
Kroonstad. Sec
66 is the section in the Act that sets out the
requirements that must be complied with before a secondary strike
can be embarked
upon.
[15] Sec 66 reads thus:-
” In this section
‘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 their employer but does not include a strike in
pursuit fo a demand that has referred to
a council of the striking
employees, employed within the registered scope of that council,
have a material interest in that demand”.
The reliance by the
respondent on sec 66(1) must have been because in its notice the
appellant had referred to the intended strike
as a secondary strike
and had also alleged that the strike was in compliance with sec 66.
[16] Attempts between the parties to reach agreement on
whether the strike would be a protected strike or not failed. The
respondent
then brought an urgent application in the Labour Court.
Leaving out prayers relating to urgency and further and alternative
relief,
the order sought by the respondent in the Labour Court was
in the following terms:-
“
1)
¼
2) Declaring the secondary alternatively primary strike
action intended to be embarked upon by members of the respondent
illegal
and in contravention of section 66 alternatively section 66
of the Labour Relation Act 66 of 1995 (
“the Act”
).
3) Directing the respondent to pay the costs of the
above application on an attorney and own-client scale;
4)
¼
.
[17] The urgent application came before Jammy Aj who
granted an order declaring the intended
“secondary
alternatively primary strike action”
illegal. For reasons
that I need not refer to, he reserved the question of costs and
directed that, if any parties sought to pursue
that issues, written
submissions would have to be made within 14 days whereafter he would
decide it. Within days thereafter leave
to appeal to this Court was
sought and obtained. Thereafter a request was made to the Judge
President of this Court on behalf
of the appellant for the issuing
of me on behalf of the appellant for the issuing of a direction that
the appeal be heard as a
matter of urgency. This request was
granted. Appropriate directions in regard to the delivery of the
record and the heads of argument
were made. The appeal was then set
down for hearing on the 4
th
September.
[18] Before us on appeal Mr Brassey submitted that the
intended strike was a protected strike. He based this submission
firstly
on a contention to the effect that the strike was a
secondary strike but that, even if it was not a secondary strike, it
nevertheless
was simply a strike that complied with the requirements
of sec 64 of the Act. In arguing that the strike, was a secondary
strike,
Mr Brassey contended that the strike complied with the
requirements of sec 66 of the Act. Since Mr Brassey’s primary
contention
was that the intended strike would be a secondary strike,
it is necessary to have regard to the definition of a secondary. Sec

66 defines a secondary strike as follows: “
” In this section
‘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 their employer but does not include a strike in
pursuit of a demand that has referred to
a council of the striking
employees, employed within the registered scope of that council,
have a material interest in that demand”.
”
[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