Sneller Verbatim/lks
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
2005-07-12 CASE NO: J1281/05
REPORTABLE
In the matter between
CHUBB GUARDING SA (PTY) LTD Applicant
and
SOUTH AFRICAN TRANSPORT AND
ALLIED WORKERS UNION Respondent
__________________________________________________________
JUDGMENT
__________________________________________________________
REVELAS, J:
[1] The applicant, a company, has declared a dispute in terms
of clause 13.3.1 of a collective agreement dated 21 April 2004,
concluded between the parties regarding its demand that the
respondent withdraw its proposed secondary strike action. It
contended that the respondent and its members are prohibited
from engaging in strike action until such time as the periods
contained in clause 13.3 of the aforesaid collective agreement
have expired. As the time periods have not expired, it argued
that the secondary strike action in support of the strike action
engaged by its members at Chubb Security (Pty) Ltd, is
prohibited in terms of section 65(1)(a) of the Labour Relations
Act No. 66 of 1995 ("the LRA").
[2] The union (or “the respondent”) maintained that the
dispute was not aimed at resolving the dispute declared by the
applicant in terms of clause 13. The secondary strike is aimed at
resolving the dispute between the respondent and Chubbs
Security SA Ltd, which is the holding company of the applicant
and it is common cause that currently the employees at this
holding company are engaged in a primary strike in an attempt
to resolve their dispute with their employer about inter alia
transport money.
[3] The secondary strike will only be protected if the primary
strike complies with sections 64 and 65 of the Labour Relations
Act 66 of 1995, as amended, (or “the Act”) and the secondary
strike complies with the notice provisions contained in section
66(2)(b) of the Act and the requirement contained in section
66(2)(c) namely, that the nature and extent of the secondary
strike should be reasonable in relation to the possible direct or
indirect effect that the secondary strike may have on the
primary employer.(Chubb Security SA Ltd)
[4] It is not disputed that 60 members of the union are
engaged in the strike currently conducted (the primary strike) at
Chubb Security SA (Pty) Ltd and that the members of the union
who wish to strike at the applicant are 800 in number.
[5] It was argued by the applicant that these figures are
disproportionate and would therefore render the strike
unreasonable.
[6] It was further argued that there was no nexus between
the primary strike and the secondary strike in that the two
employers are different entities, the one dealing with guards
(the applicant) and the other with the manufacturing and
distribution of security equipment.
[7] I have weighed up all these factors, and I have come to
the conclusion that counsel for the union was quite correct
when he said that it is not interim relief which is sought (as
argued on behalf of the applicant) but final relief. What the
applicant is seeking, is that the union members first go through
the dispute resolution processes and periods and that those
time periods should lapse first. Such relief is final in nature.
[8] The order that I give is thus a final order and therefore the
factors that I have to take into consideration are different to
that for interim relief. [9] A right to embark on a secondary
strike, (and this is borne out by the provisions of section 66 of
the Act), is less readily available to secondary strikers than to
primary strikers. For instance, in respect of a secondary strike,
seven days notice must be given to the employer, whereas in
respect of a primary strike, only 48 hours notice has to be
given. The fact that there is a requirement of reasonableness
for a secondary strike and not for a primary strike,
notwithstanding the fact that there is a constitutional right to
strike, also is an indication a secondary strike is not an
unfettered right.
[10] The respondent’s case was that the provisions of clause
13 of the collective agreement have no relevance to the
question whether or not the secondary strike is protected or
not. The argument went as far as submitting that even a strike
aimed at resolving the dispute declared by the applicant in
terms of the agreement would not have to comply with the
dispute resolution procedures contained in the collective
agreement. In this regard I was referred to the judgment in
County Fair Foods (Pty) Ltd v. FAWU and Another [2001] 5 BLLR
494 (LAC) especially paragraphs 15-20. In paragraph 17 of that
judgment, Zondo J.P. observed that it was clear from the
provisions of section 64(3)(b) of the Act, that the legislature did
consider a situation where a party had complied with a
collective agreement, but not with the Act and decided that, in
such a case a party need not comply with another pre-strike
procedure before a strike could be embarked upon. He pointed
out that what the legislature had sought to achieve, was to give
parties a choice of following either a pre-strike procedure
contained in a collective agreement or following the statutory
procedure in section 64(1). Compliance with either procedure
suffices to confer on employees the right to strike with
concomitant protected status. Zondo J.P. regarded insistence on
compliance with a collective agreement despite there having
been compliance with the provisions of the Act, as “unjustifiably
usurping the legislature’s function” (par [20]). The aforesaid
proposition raises the question whether or not collective
agreements have any role to play in pre-strike dispute
resolution, considering the time and effort spent in concluding
such agreements.
[11] In my view, where there is an additional requirement of
reasonableness in the case of the secondary strike, with its
limitations, a collective agreement should be respected by both
parties particularly when the secondary strikers are so
disaproportionally higher in number than the primary strikers,
even if there is a nexus between the two companies in question.
Reasonableness could also be inferred from the actual conduct
of employees in respecting the relevant and applicable
collective agreements.
[12] I have also considered the question of fairness and
resultant harm that may be suffered by both parties. On the
papers before me the applicant will have to close down its
business operations if this strike went ahead. It cannot
financially afford it. Obviously, the employer must suffer harm
during a strike, otherwise there would be no purpose to the
strike. This proposition is so much more apt in relation to a
primary strike than a secondary one. The harm suffered by
secondary strikers in first following an agreed procedure is
minimal. Here was a procedure that had to be followed, to
which the union and the employer have agreed upon, in a
collective agreement. It provides for a cooling off period which
is a wise route to follow before crippling an employer with whom
employees have no direct dsipute. If there is a nexus between
the two businesses, the employees may strike. But before the
provisions of clause 13 have not yet been complied with in full,
workers may not go on strike. This strike action is therefore
delayed until there is such compliance.
[13] In the circumstances I make the following order:
1. The respondent is interdicted from calling upon its
members to
participate in any secondary strike action in support of the
primary strike engaged in by its members at Chubbs
Security (Pty) Ltd unless it and its members have
complied with clause 13 of the collective agreement dated
21 April 2004 applicable to the parties herein.
2. I do not make any order as to costs, the reason being that
the parties may still be engaged in this conciliation
process.
3. Written reasons for this order shall be provided upon
written request.
__________________
E. REVELAS
REPORTABLE: YES
DATE OF HEARING: 8 JULY 2005
DATE OF JUDGMENT: 12 JULY 2005
ON BEHALF OF THE APPLICANT: Adv AS Redding S.C.
INSTRUCTED BY: Deneys Reitz
ON BEHALF OF THE RESPONDENT:Adv JG Van der Riet S.C.
INSTRUCTED BY: Cheadle Thompson &
Haysom