CASE NO D1379/02 REPORTABLE
DATE HEARD : 17 SEPTEMBER 2002
DATE DELIVERED : 18 SEPTEMBER 2002
In the matter between
HEXTEX, ROMATEX HOME TEXTILES
& BERG RIVER TEXTILES (APPLICANTS)
and
SACTWU (RESPONDENT)
JUDGMENT
PILLAY D, J
1. This application requires me to revisit section 66(2)(c) of the
Labour Relations Act No 66 of 1995 (the “ LRA”). It is brought
urgently to declare the secondary strike due to commence at
12:00 today to be unprotected, to interdict the second and
further respondents, and for certain ancillary relief.
2. The applicants are cited as divisions of the Seardel Group
Trading (Pty) Limited. Mr Bingham, for the respondents,
objected on the grounds that, as trading divisions, the
applicants have no locus standi to institute proceedings.
3. Mr van Niekerk, for the applicant, conceded this principle
which was upheld in Volkskas Bank v Peterson 1993 (1) 312
(CPD), a case relied on by Mr Bingham. However, he denied
that the citation of the applicant was misleading as Seardel
Group Trading (Pty) Limited trades under the name of various
distinct entities.
4. The objection is more to the form than to the substance of the
citation. As it is common cause that the real applicant is the
Seardel Group Trading (Pty) Limited, trading as Hextex,
Romatex Home Textiles and Berg River Textiles, there is only
one applicant, and it ought to have been cited as such. I refer
hereafter to the Seardel Group Trading (Pty) Ltd as the
applicant.
5. The shortcoming in the form of the citation is not sufficient to
deny the applicant of locus standi. However, as Mr Van
Niekerk pointed out, it is necessary to distinguish between the
divisions to enquire whether each has a nexus to Team Puma,
the secondary employer.
The nexus
6. The applicant denies that there is any link between Hextex and
Romatex Home Textiles ( “Romatex”), on the one hand, and
Team Puma on the other hand. They manufacture products
different from that produced by Team Puma. However, the
applicant acknowledges that through Berg River Textiles it
supplies yarn on an irregular basis to Team Puma. Between
January to April its supplies represented 0,69% of its
production and 0,59% of its turnover. For these reasons the
relationship between these divisions and Team Puma was
either non-existent or insignificant. As a result, they were not
in any position to influence Team Puma about the wage
demands on it. So it is submitted for the applicant.
7. The respondent submitted that the nexus is established by the
applicant which, through its divisions, has a direct relationship
with Sherco (Pty) Limited, trading as Team Puma. Of particular
note is the case of Bibette, a division of the applicant which
receives raw materials from Team Puma. As one of its
divisions, the applicant is in a position to influence Team Puma
by, for example, refusing on behalf of Bibette to do business
with Team Puma.
8. The nexus between Hextex and Romatex with Team Puma is
therefore through the applicant. Furthermore, it was accepted
in SACTWU v Free State and Northern Cape Clothing
Manufacturers Association 2001 22 ILJ 2636 (LAC) that a trade
union may strike at all the trading divisions of an employer
even if a dispute does not relate to some of the divisions.
9. Accordingly, there was a substantial link between Sherco (Pty)
Limited trading as Team Puma on the one hand, and some of
the trading divisions of the applicant. Hence, a secondary
strike against the applicant would affect all its divisions. So it
was submitted for the respondents.
The effect of the secondary strike
For the applicant:
10. The applicant further submitted that Team Puma continued to
operate despite the strike; a large portion of the employees
continued to work. The withdrawal of the supply of yarn by
Berg River Textiles would have no effect on the business of
Team Puma. Previously, it had been able to operate when
Berg River Textiles was unable to supply it with yarn for two
weeks for reasons unrelated to industrial action.
11. Team Puma can source yarn from other suppliers, either
locally or from overseas. These three divisions of the applicant
were located in the Western Cape. Suppliers of yarn beyond
that region are not affected by secondary strikes. The Group
Human Resources Director employed by the Frame Textile
Group, a division of the applicant, who deposed to the
affidavits for the applicant, confirmed that the Frame Textile
Group would supply yarn to Team Puma, if required to do so.
12. Contrary to the first respondent's allegation that all potential
suppliers of yarn to Team Puma have been given notice of the
secondary strike, at least 60% of such suppliers had not been
so notified. As such suppliers are mainly outside the Western
Cape, it reduces the effect any action against Berg River
Textiles' business is likely to have on the primary strike.
13. Consequently, although there is a nexus between the applicant
and its divisions with Team Puma, it is not sufficient to have an
effect on Team Puma's business. So it was submitted for the
applicant.
For the respondents:
14. The respondents submit that the effect of the secondary strike
on the business of Sherco (Pty) Limited, and consequently on
Team Puma, would be reasonable. The withdrawal by Berg
River Textiles of its own supplies to Team Puma would hamper
the latter's production. Whatever the proportion of the supply
of yarn to Team Puma might be to the applicant ’s own
production and turnover, it is irrelevant as a reference in
section 66(2)(c), to “effect” means the effect on the primary
employer, not the secondary employer.
15. The secondary strike could result in the termination of the
supply of material to Team Puma. The applicant could also
prevent Bibette from obtaining supplies from Team Puma.
These are some forms of pressure that are likely to affect
collective bargaining at Team Puma. So it was submitted for
the respondent.
Analysis
16. In view of the disputes of fact about the strength of the nexus
and whether it was sufficient to cause the secondary strike to
have an effect on the business of the primary employer, I
intend to deal with the matter on the basis of the facts that are
common cause, not disputed or which constitute the
respondents’ version. ( Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (AD))
17. The applicant bears the onus of proving all the requirements
for an urgent interim interdict. On the other hand, the
respondents bear the onus of proving that they have complied
with the jurisdictional prerequisites that entitle them to invoke
the provisions of section 66(2)(c).
18. Section 66(2)(c) provides:
"(2) No person may take part in a
secondary strike unless ...
(c) the nature and extent of the secondary strike is reasonable
in relation to the possible direct or indirect effect that the
secondary strike may have on the business of the primary
employer."
19. Whether a secondary strike would have an effect on the
business of the primary employer is a question of fact
determined on the balance of probabilities, bearing in mind
that the threshold is pitched merely as a "possible direct or
indirect effect".
20. In the absence of sufficient data about the possible effect of
the strike from the parties, Team Puma or an investigator
appointed in terms of subsection 4, I must determine the
matter on the limited facts before me.
21. The word “possible” means:
“1. capable of existing, taking place, or proving true without
contravention of any natural law. 2. capable of being
achieved….3.having potential ……4. feasible but less than
probable.”
(The Collins Dictionary and Thesaurus, 1987)
22. The word “possible” is semantically ambiguous. ( Devenish G
E: Interpretation of Statutes Juta and Co Ltd 1992 at 59 ) If it
means, in the context of the subsection, “likely” or “capable
of existing, taking place ”, the effect will be less restrictive of
the right to participate in the secondary strike (the “first
interpretation”). It pitches the threshold for compliance fairly
low. It is also the ordinary meaning of the word in the context.
23. However, if it were to be substituted with the synonym
“potential”, the powerfulness of the effect would be brought
into the equation (the “second interpretation ”). The second
interpretation sets a higher standard of compliance. The
powerfulness of the effect of the secondary strike on the
business of the primary employer must be assessed. That calls
for a value judgment.
24. If the second interpretation were to apply would it mean that
the secondary strike should be permitted if it has a powerful
effect and disallowed if it has little or no effect on the primary
employer? Or, conversely, would it mean that a secondary
strike that does not have a powerful effect, should be
permitted, say, because its impact on the economy is
negligible? As I said in Billiton (supra), the effect of the strike
on the secondary employer is not a consideration.
Approached from this perspective, subsection 2(c) is
contextually ambiguous. (Devenish, supra)
25. The second interpretation also allows for intrusion on the
exercise of power during collective bargaining. That, in my
view, is repugnant to the constitutionally entrenched right to
bargain collectively (section 23(5) of the Constitution, Act 108
of 1996), and the conceptualisation of the exercise of that
right in South Africa as a primary means of self-regulation of
industrial relations.
26. The second interpretation also ignores the reality that
secondary strikes are not always instantaneous but often
develop gradually. At what stage then should the strength or
potential of the secondary strike be assessed?
27. The interpretation that is least restrictive of rights should be
followed. (Government of the Islamic Republic of Iran v Berends 1998
(4) SA 107 (NM); Commissioner for Inland Revenue v Delfos 1933 AD
242 at 254—5; Principal Immigration Officer v Bhula 1931 AD 323;
Arenstein v Secretary for Justice 1970 (4) SA 273 (T) at 281; Peter v
Peter and Others 1959 (2) SA 347 (A) and S v Gelderblom 1962 (1) SA
497 (C)).
28. As the right to strike is constitutionally entrenched, any
limitation of it must be strictly construed. (Nyamakazi v President
of Bophuthatswana 1992 (4) Sa 540 (BG); Kauesa Minister of Home
Affairs 1996 (4) SA 965 (NMS) at 974DE/F; Majavu 1994 (4) SA 268
(CK))
29. Another difficulty that arises in the circumstances of this case,
is that there is insufficient information to enable me to assess
how powerful or otherwise the effect of the secondary strike
would be on the primary employer. This may be a persistent
difficulty in other similar applications that are brought
urgently, without the participation of the primary employer or
without an investigator’s report in terms of subsection 4.
30. I accordingly adopt the first interpretation of the word
“possible”.
31. The word “possible” is also used to enable interdicts to be
brought before the secondary strike commences. The Court
then has to anticipate what the effect of the secondary strike
might be in the particular circumstances on a balance of
probabilities.
32. I do not believe that the word “possible” can be construed so
widely as to mean “feasible but less than probable ” in the
context (the “third interpretation”). Having regard to the
philosophical theory of the interconnectedness of things in
nature and commerce, the subsection would be meaningless if
that construction is followed. The balance of probabilities test
would be neutralised.
33. The practical effect of section 66(2)(c) is that the nature and
extent of the secondary strike must be capable of having an
effect on the primary employer ’s business. The purpose of
secondary strikes is to enable employees of the secondary
employer to exert pressure on their employer to, in turn, put
pressure on the primary employer to resolve its dispute with
its employees. If a secondary strike is capable of achieving
that purpose, it would be reasonable. If the possible effect of
the secondary strike would be to influence collective
bargaining between the primary employer and its employees,
then it should be protected.
34. The effect of the secondary strike should be of a commercial
or economic nature. Thus, a mere inconvenience would not
satisfy the requirement. If, for example, the Frame Textile
Group were to substitute itself as a supplier in place of Berg
River Textiles, the effect may be purely inconvenient for Team
Puma. However, if the substitution results in increased costs
of transporting the raw materials, because the Frame Textile
Group is based in KwaZulu Natal whereas Berg River Textiles is
in Western Cape, or because the delays in delivery cause
production delays which in turn result in penalties or the
cancellation of orders for Team Puma, then the secondary
strike would have a possible effect on the primary employer.
35. Adjudicators are, as a matter of policy and practice, slow to
interfere in the balance of forces that prevail during collective
bargaining. Questions of the legitimacy and proportionality of
a strike have little significance once the jurisdictional
prerequisites have been complied with. This view is
expatiated in the opinion I expressed at paragraph [11] to [14]
in the Billiton case.
36. On the basis of the afore-going analysis, I doubt section 66(2)
(c) invokes a proportionality test either as regards the effect of
the secondary strike on the secondary employer, the primary
employer or the secondary and primary employers relative to
each other. If a secondary strike has a devastating effect on
the secondary employer but only a marginal, but nevertheless,
possible effect on the primary employer ’s business, the
secondary strike would not be a contravention of subsection
(2).
37. The notion of a proportionality test arises from two possible
sources. Firstly, section 66(3) provides:
“ Subject to section 68(2) and (3), a secondary employer may apply to
the Labour Court for an interdict to prohibit or limit a secondary strike
that contravenes subsection 2.”
38. If a secondary strike contravenes subsection (2), it should be
prohibited. A secondary strike will contravene subsection (2) if
it cannot have a possible effect on the primary employer. In
what circumstances, then, can a secondary strike that
contravenes subsection 2 be limited?
39. The word “limit” must refer to situations where the nature and
extent of the secondary strike is only partially a contravention
of subsection (2). By limiting the strike appropriately, the
Court could bring the strike squarely within the ambit of
subsection (2). For example, a secondary strike is instituted in
support of several primary employers. If the secondary
employer has a commercial or economic connection with some
but not all the primary employers, the secondary strike could
be limited to support only those primary employers against
whom the secondary strike may have a possible effect.
40. A secondary strike may also be limited if, for instance, the
nature and extent of the strike is a total refusal to work by the
entire plant, whereas a work stoppage by one production line
only may have a possible effect because the primary employer
would, as a result of the stoppage, have no supplies. The
focus of the enquiry into limiting the strike remains the
possible effect of the secondary strike on the primary
employer.
41. If the secondary employer gives an undertaking to severe all
commercial links with the primary employer, then it is
arguable that the secondary strike would have no effect on the
primary employer as any effect that it might have had is
supplanted by the effect of the secondary employer ’s resolve
to sever its business links with the primary employer. The
secondary strike may then be prohibited altogether or be
limited in accordance with the undertaking.
42. The second source of the proportionality debate may arise
from the Explanatory Memorandum to the LRA which, at
paragraph 8 states inter alia :
“Special requirements have also been introduced for secondary strikes,
picketing, protest action and temporary replacement labour. These are
designed to balance the rights of employees and the harm to
employers and the economy.”
43. If the intention of the legislature and the social partners was to
introduce a test of the proportionality of the secondary strike in
relation to its effect on the primary employer or the economy, as
I have found above, that objective has not been accomplished
upon a proper construction of section 66 (2)(c). If the secondary
strike were to be limited on the basis of proportionality, the
limitations should be clear, unequivocal and unambiguous. One
option would have been to frame the subsection thus:
“ (2) No person may take part in a secondary strike
unless…
(c) the effect of the secondary strike on the
secondary
employer is reasonable and proportionate to its
possible direct or indirect effect on the business of
the
primary employer.”
44. The momentum for the secondary strike in this case has
developed gradually. Whether it will develop further is
unknown. However, if the applicant ’s reasoning that the
nature and extent of the secondary strike and the nexus with
Team Puma are so insignificant as to have no effect is
accepted, then any secondary strike that begins as a low-key
limited exercise could be immediately interdicted before
support for the primary strikers can be galvanised.
45. The intensity of the secondary strike is one of the factors that
could affect bargaining. Another factor is the nature of the
nexus between the primary and secondary employers.
Consequently, a strong nexus and a weak secondary strike
could be as effective as a well-supported secondary strike
where the nexus is weak. A secondary employer who supplies
the primary employer, such as a cut, make and trim operator,
with raw materials could be quite influential because of the
nature of the nexus, even if the nature and extent of the
secondary strike is weak and limited. Whatever the nexus and
the nature and extent of the secondary strike may be, the
jurisdictional prerequisite is met if the secondary strike has a
possible direct or indirect effect on the business of the primary
employer.
46. Because every potential supplier of yarn has not been
subjected
to a secondary strike in this case does not mean therefore that
the nature and extent of a secondary strike is so limited as to
have no effect on the business of the primary employer. Nor
does it mean that the applicant would not be able to influence.
Team Puma if it is pressured by its own employees.
47. Another consideration is that as a national trade union
operating in the clothing and textile industries, it is quite
conceivable that the first respondent might persist with
secondary strikes in the Frame Textile Group and any other
employer of its members who chooses to do business with
Team Puma.
48. From the information before me, I cannot conclude that the
secondary strike would have no effect on the primary
employer. In so far as the applicant is one of many suppliers of
raw materials (through Berg River Textiles) to the primary
employer, prima facie the effect may be less than the effect it
has as the purchaser (through Bibette) of raw materials.
49. Although a direct nexus has been established between Berg
River Textiles and Bibette with Team Puma, the nexus with
other divisions of the applicant is indirect. A secondary strike
at these divisions could exert pressure on the applicant to
instruct its divisions having a direct nexus with Team Puma to
cease doing business with the latter. That would have an effect
on Team Puma, however significant or otherwise.
50. I accordingly find that there is a sufficient nexus between the
applicant and Team Puma that would cause the secondary
strike to influence collective bargaining between the latter and
its employees. The nature of the proposed strike is a total
work stoppage. As it would, on the applicant's version, be
harmful to its business there is an incentive for the applicant
to influence the primary employer.
51. The extent of the secondary strike is uncertain at this stage as
it is not known how many of the respondents will actually heed
the call. Whether the applicant will succeed in influencing
Team Puma calls for speculation. That, in any case, is not the
depth to which I need enquire.
52. In all the circumstances, the applicant has failed to discharge
the onus of proving that it has a clear right to prevent the
respondents from participating in a secondary strike.
53. The application for urgent relief is therefore dismissed. The
issue of costs is reserved. The parties are free to reschedule
the matter for argument on that issue.
54. These are the full reasons for my judgment.
PILLAY D, J
Authorities referred to:
Arenstein v Secretary for Justice 1970 (4) SA 273 (T) at 281
Billiton Aluminium South Africa Limited v National Union of
Metal Workers of South Africa 2001 22 ILJ 2434 (LC)
Commissioner for Inland Revenue v Delfos 1933 AD 242 at 2545
Gelderblom 1962 (1) SA 497 (C)
GKN SA Chep (Pty) Limited v NUMSA 1997 (10) BLLR 1370 (C)
Government of the Islamic Republic of Iran v Berends 1998 (4) SA 107
(NM)
Kauesa v Minister of Home Affairs 1996 (4) SA 965 (NMS) at 974DE/F
Majavu 1994 (4) SA 268 (CK)
Nyamakazi v President of Bophuthatswana 1992 (4) Sa 540 (BG)
Peter v Peter and Others 1959 (2) SA 347 (A)
Principal Immigration Officer v Bhula 1931 AD 323
Samanco Limited & Another v National Union of Metalworkers
of South Africa 1999 20 ILJ 2941 (LC);
Seeley of South Africa (Pty) Limited and Others v PPAWU 1997
4 BLLR 421 (LC);
South African Clothing and Textile Workers Union v Free State
and Northern Cape Clothing Manufacturers 2001 22 ILJ 2636
(LAC)
Volkskas Bank a division of ABSA Bank Limited v Peterson
1993 (1) SA 312 (CPD).
Devenish G E: Interpretation of Statutes Juta and Co Ltd 1992
at 59
FOR THE APPLICANT : ADVOCATE VAN NIEKERK
INSTRUCTED BY : SHEPSTONE AND WYLIE
FOR THE RESPONDENT : ADVOCATE BINGHAM
INSTRUCTED BY : CHEADLE THOMPSON & HAYSOM
INC.
TRANSCRIBER
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