Bidvest Food Services (Pty) Ltd and NUMSA, Gallant & 158 others [2014] ZALCCT 58

SUMMARY

Section 23(2) of the Constitution of the Republic of South Africa, 1996, grants every worker the right to strike. A worker need not be a member of a trade union in order to strike lawfully. The scope of the right to strike is only limited by the procedural requirements set out in Section 64 of the Labour Relations Act 66 of 1995, as amended (“LRA”), as well as the requirement that workers may only strike over matters of mutual interest. The demand for organisational rights may be a matter of mutual interest. If a trade union does not qualify for organisational rights under section 21 of the LRA, it can nonetheless demand that the employer bargain with it.

In such a case, if the employer refuses to bargain with the trade union, then the trade union can embark upon a strike. Such a strike over such a demand would be lawful; provided the procedural requirements as set out in Section 64 are fully complied with by the trade union. In addition, in terms of section 21, a trade union seeking organisational rights must prove its membership and that the employees it claims as members can, in terms of its constitution, be members of the trade union.

However, if the trade union does not rely on section 21, then the fact that the trade union demands organisational rights in a workplace that is not within the scope of their constitution does not change the fact that the demand is a matter of mutual interest. Therefore, although the trade union may not be able to acquire organisational rights in a workplace that falls outside of the scope of the trade union’s constitution, this does not prevent its members from exercising their right to strike in demand for such rights.

COURT’S DECISION

In Bidvest Food Services (Pty) Ltd and NUMSA, Gallant & 158 others [2014] ZALCCT 58 an employer approached the Labour Court for an order interdicting a strike by members of a trade union demanding organisational rights in the employer’s workplace. The employer, Bidvest Food Services (Pty) Ltd (“the employer”), is engaged in the food industry. The National Union of Metalworkers of South Africa (“NUMSA/the union”), in turn operates within the metal industry. In terms of the union’s constitution it is only allowed to represent workers in that specific industry (i.e. the metal industry). The union had approached the employer demanding organisational rights in terms of section 21 of the LRA. In response, the employer refused on the grounds that the trade union is only allowed to organise workers in its demarcated industry.

The trade union then referred the matter to the CCMA for conciliation.

The employer argued that the CCMA did not have jurisdiction to entertain the dispute because the trade union did not have standing to neither claim nor be granted organisational rights at the employer’s workplace. The CCMA nevertheless entertained the dispute on the grounds that a registered trade union may represent its members at the CCMA regardless of the delineated industrial scope set out in the trade union’s constitution. After hearing the dispute, the CCMA issued a certificate of outcome stating that the dispute remained unresolved. The trade union furnished the employer with a notice to strike shortly thereafter.

In response, the employer launched an urgent application before the Labour Court. At the Labour Court, the employer argued that the strike was unlawful because it was in respect of an unlawful demand being a demand for organisational rights in a workplace which is part of an industry that is beyond the scope of the union’s constitution. In determining whether the strike was unlawful, the Court referred to Section 64 of the LRA which provides that every worker has the right to strike if a certificate from the CCMA stating that the dispute remains unresolved has been issued, a period of 30 days has elapsed since the referral of the dispute to the CCMA, and 48 hours’ notice of the commencement of the strike has been given in writing to the employer. Lastly, the matter over which the workers are striking must be a matter of mutual interest.

The Court emphasised that the legality of a strike is not dependent on the probable success or legal merits of the demand, whether the trade union organising the strike is registered, whether the participating workers are members of that trade union or whether the trade union operates within the industry in which the employer’s workplace falls. A strike need only be a “concerted” refusal to work in response to a matter of mutual interest (in the present circumstances the employer’s refusal to allow the union organisational rights was indeed a matter of mutual interest). In holding that the union’s strike should therefore be regarded as lawful, the employer’s application to interdict the strike was dismissed.

Importance of the case

Employers should be aware that workers’ right to strike is not limited by the merits or substance of the demand. Whether a strike is lawful or unlawful is dependent on whether it is over a matter of mutual interest and whether the procedural requirements in Section 64 of the LRA have been followed.

Written by Jacques van Wyk, Director, and Andre Van Heerden, Associate, Werksmans Attorneys

This case summary was prepared with the assistance of Candidate Attorney Unesu Moyo, Werksmans Attorneys