The Labour Court allowed the trade union to anticipate the return day of an interim interdict (rule nisi) granted in favour of the employer relating to an alleged unprotected strike.  On the anticipated return day the Labour Court discharged the rule after finding that the strike was in fact protected.

National Union of Food Beverage Wine Spirits and Allied Workers (Nufbwsaw) v Universal Product Network (Pty) Ltd; In re: Universal Product Network (Pty) Ltd v Nufbwsaw (J2182/2015) [2015] ZALCJHB 421 (9 November 2015) per Van Niekerk J.

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[13]    In my view, the application ought to have been treated as one for final relief.  The fact of the matter is that it wasn’t.  In these circumstances, the respondents are entitled to anticipate the return day without establishing any additional facts on which the order should be reconsidered.  It is sufficient that the test for final relief is different, and that the respondents are entitled to have the merits of the applicant’s claim reconsidered and adjudicated on that basis as opposed to the lower threshold applicable to the granting of interim relief.  To hold otherwise would ignore the effect of the interim order on a fundamental constitutional right in the form of the right to strike and the respondents’ acute lack of alternative remedies.

.  .  .  . 

[19]    It is not in dispute that during the course of the strike, banners were displayed criticising the applicant’s holding company, Woolworths, for doing business with Israel and that Palestinian flags were waved.  It is also not disputed that during the course of the strike, members of a political party, the Economic Freedom Fighters (EFF), became involved in strike in that on 23 October 2015, officials and members of the EFF visited the applicant’s premises demanding to negotiate with the applicant’s management.  On the same evening, four EFF members travelling in two cars addressed the individual respondents present stating that they should not give up hope or surrender until their demands were met, that they should intensify the strike by targeting trucks doing deliveries and entering and leaving the applicants gates, that the EFF would provide legal assistance and would publicise the strike..  The applicant submits that the EFF is seeking to use political power and threats of violence and that the strike ceased to be lawful on account of the associated demands made in service of the wider political goals of the EFF.  It goes so far as to suggest, consequent on a meeting between four EFF members and a member of the applicant’s management that the union’s members have aligned themselves with political demands and objectives and in particular, that the individual respondents are pursuing political demands in the course of an EFF-led action.

.  .  .  .  .

[28]     In short, the approach adopted by this court in relation to the content of a strike notice and in particular, the requirement that the union articulate the issue over which employees will go on strike, does not offend an interpretation of s 64 (1)(b) that is aligned to the spirit, purport and objects of the Bill of Rights.  However, this court must be cautious when reading in requirements to s 64 (1) (b) that are not expressly stated – an interpretation less intrusive of the right to strike must be preferred.

[29]     Turning next to the applicant’s contention that the nature of the strikers changed to an extent that the union no longer pursues the settlement of legitimate demands relating to matters of mutual interest but pursues violence and political matters, it should be recognised at the outset that this court’s intervention is reactive and thus limited.  The law has its limits.  What is obviously required is a more holistic approach and a greater understanding of the factors that contribute to mob violence, together with a pre-emptive process and measures that are supportive of good faith negotiation (see Rycroft supra).

.  .  .  .  .

[31]    Insofar as the applicant’s claim has as its basis the contention that what may have been a protected strike has transmuted to an unprotected strike, the Labour Appeal Court has held that such a transmutation would only occur if it is shown that the employees had used the protected strike as leverage to achieve objectives other than those in respect of which strike action could legitimately be taken.  (See Edelweiss Glass & Aluminium (Pty) Ltd v National Union of Metalworkers of SA & others (2001) 32 ILJ 2939 (LAC), at paragraph 52.)

[32]    The proper approach, it would seem to me, is that proposed by Prof Rycroft see Rycroft supra) who acknowledges the practical difficulties that clearly arise, not least the determination of how much violence will misconduct would have to have occurred before the court intervenes.   He suggests that the court ask the following question ‘Has misconduct taken place to an extent that the strike no longer promotes functional collective-bargaining, and is therefore no longer deserving of its protected status’? In answering this question, Prof Rycroft proposes that the court weigh the levels of violence and efforts by the union concerned to curb it.  He explains that this is not an anti-union proposal; rather, he imagines a balancing counter-measure allowing unions to launch a similar court application for an order granting protected status to an otherwise unlawful strike if it is in response to unjustified conduct by the employer (see Rycroft supra  fn 43).  In my view, this is an eminently sensible approach to adopt.

.  .  .  .  .

[38]     While, as it has previously indicated, this court will in appropriate circumstances declare an initially protected strike unprotected on account of levels and degrees of violence which seriously undermine the fundamental values of our Constitution, this is not a conclusion that ought lightly to be reached.  A conclusion to this effect  itself denies the exercise of fundamental labour rights, and as the Constitutional Court pointed out in SATAWU, this court ought not to easily to adopt too intrusive an interpretation of the substantive limits on the exercise of the right to strike.

[39]     What the particular threshold might be is not a matter that I am called on to decide, but Prof Rycroft’s proposals make eminent sense.  On the facts before me, I am not able to find that in the present instance, the nature and degree of violence is not such that the strike no longer promotes functional collective bargaining.  Further, the efforts made by the union to curb acts of violence and to disassociate itself from those acts appear to me to be sincere.

[40]     The video and other evidence proffered by the applicant establishes that at least some of the respondents have on the face of it acted in breach of the interim interdict granted by this court under case number J 2111\15 on 19 October 2015.  I must emphasise that any act of intimidation and violence or the threat of violence is to be deplored in the strongest terms.  By resorting to or condoning acts of gratuitous violence a union calling the strike runs the risk that the exercise of the right to strike no longer supports the legitimate purpose of collective bargaining.  In the present instance, there is a remedy available to the applicant.  The application to hold the union and to individuals in contempt of this court on account of their alleged breach of an order granted by this court remains pending and it remains open to the applicant to set the matter down for hearing and to ensure that the relevant parties are sanctioned if the requirements of contempt are met.

[41]     In so far as the applicant contends that the strike is no longer functional to collective bargaining in that it has assumed a different and political purpose, I am similarly not persuaded on the available evidence that this is so.  It is not uncommon, both in South Africa and elsewhere, for community groups and even political parties to express their solidarity with striking workers and to identify with the course.  The fact that one or more opportunistic fellow travelers elect to support a strike and during the course of that support, to express their own views or pursue their own more parochial interests ought to come as no surprise.  That is not to say that there may well be a threshold that is crossed when the purpose of industrial action, initially in pursuit of matters of mutual interest, becomes directed at other purposes.

[42]     In my view, the facts do not support a contention that the industrial action currently undertaken is not directed at matters of mutual interest between an employer and employees.  The evidence does not disclose that any ‘political’ demands have been made by the union.  To the extent that the EFF has made demands of the applicant these are not demands made by the union, and indeed, the union has expressly disassociated itself from both the EFF’s conduct and its demands.  To the extent that the applicant remains aggrieved at the conduct of the EFF (which appears to be opportunistic at best), this is a matter that should be addressed with the EFF directly.  In so far as the EFF has encouraged any of the individual respondents to breach the terms of the order granted on 19 October 2015, those respondents may in due course be required to answer for their actions.  In so far as the EFF itself or its officials have made themselves guilty of criminal acts, the applicant has remedies against them.