Industrial action – unprotected industrial action – employees in dispute with transnet – striking against employer not party to transnet bargaining council – strike unprotected – employer wholly owned by member of council
After the respondent unions referred a dispute concerning the restructuring of Transnet to the Transnet Bargaining Council, they issued a notice to the council indicating that they intended to commence strike action in KwaZulu-Natal. The applicant itself received no notice of either a primary or a secondary strike. The applicant which, after its formation as an independent company wholly owned by Transnet, was not a member of the council, contended that it was not a party to the dispute, and that a strike by its employees would accordingly be unprotected because any dispute with it should have been referred to the CCMA.
The Court noted that the dispute revolved around the “unbundling” of Transnet and that among the unions’ demands was one that the applicant should be transferred to the government. It was accordingly clear that there was a nexus between the business interests of the applicant and those of Transnet. However, since the applicant could play no role in Transnet’s decision-making, it would be unfair to permit its employees to join the strike. The mere fact that Transnet held all the shares in SAA did not make the applicant part of Transnet or a party to the Transnet Bargaining Council. The unions should therefore have engaged separately with the applicant and then referred a dispute to the appropriate dispute-resolution forum – in this case the CCMA – or they should have tried to compel the applicant to join the Transnet Bargaining Council by collective bargaining. Any strike action by the applicant’s employees on the strength of the referral would accordingly be unprotected.
The unions’ members were ordered to resume work.