Liberty Liquors (Pty) Ltd v Sactwu (D1238/16) [2016] ZALCD 20 (29 September 2016) per AJ Steenkamp J.

The LC interdicted a proposed strike by a rival trade union.  The bargaining unit comprised three outlets and a new collective agreement with registered union applied retrospectively.  The earlier judgment of Whitcher J was between different parties and did not prevent the granting of relief in this matter.  The issue of the actual ‘workplace’ need to be resolved separately.

Excerpts without footnotes

[5]     The applicant launched an urgent application to interdict the strike. A rule nisi was issued on 30 June 2016.  On the return day, 29 July 2016, it came before Whitcher J.  She held that SACCAWU was not the majority union (it had 48,7% membership at the time) and that SACTWU had complied with s 64.  She discharged the rule nisi with costs on the attorney and client scale.

. . . . .

[10]     SACTWU raises the following defences:

  • The issue of the “lawfulness” of the respondents’ right to strike is res judicata (I take that to mean the issue of whether the strike is protected or not);
  • the new collective agreement of 25 July 2016 cannot operate with retrospective effect; and
  • there is a dispute about what constitutes the workplace, and only the CCMA has jurisdiction to determine that dispute.

. . . . .

[15]     More importantly, the cause of action is not the same. The Whitcher judgment dealt with an application based on the collective agreement of May 2016, at a time when SACCAWU was not the majority union.  This application rests on s 65(3)(a)(i) with reference to the new collective agreement struck with SACCAWU as the majority union – and binding all employees in the bargaining unit – on 25 July 2016.

[16]     The plea of res judicata fails.

. . . . .

Retrospective effect

[17]     There is no bar that I am aware of against the retrospective effect of collective agreements that are properly concluded in terms of s 23.[1] I do not agree with Ms Harries that the retrospectivity of the collective agreement takes it out of the purview of s 65(3)(a)(i).

The workplace

[18]     It is so that SACTWU disputes the employer’s characterisation of all three outlets as the “workplace”. Ms Harries has persuasively argued that it may be best for the CCMA to decide what the workplace is and whether SACCAWU has the majority in the “workplace” comprising all three outlets or at each outlet.  But the CCMA does not have exclusive jurisdiction to entertain that dispute; and I am not persuaded that the strike would be protected pending the resolution of that issue by the CCMA.[2]