SA Breweries Ltd v Food and Allied Workers Union and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Van Heerden JA, Smalberger JA, Milne JA and M T Steyn JA
• Judgment Date: 26 September 1989
• Hearing Date: 21 August 1989
• Court: Appellate Division

Smalberger JA:

The appellant (Breweries) is a public company which carries on the business of brewing. To this end it operates breweries B and distribution depots at a number of premises throughout the Republic, and employs a large labour force. The first respondent (the Union) is a registered trade union. The remaining respondents (the employees) are employed by Breweries at four of its Transvaal establishments. They are all members of the Union, which is recognised by Breweries as the sole C collective bargaining agent of the employees at the establishments in question.

The following is a brief factual background to the present appeal. Over the period June to September 1987 negotiations were conducted between Breweries and the Union with regard to the wages and working D conditions of all workers represented by the Union (including the employees) at Breweries' various establishments countrywide. An impasse was reached when the parties failed to agree on certain matters. This resulted in the employees refusing to work overtime from 14 September 1987. Prior to that date they had regularly worked overtime when E requested to do so. Breweries relied upon such overtime being worked for the purposes of its normal brewing and distribution operations. The refusal to work overtime occasioned substantial financial loss to Breweries because of lost production and the disruption of distribution. Breweries allege (and this is not denied) that the Union instigated or incited the employees to refuse to work overtime, and that the employees collectively decided to refuse to work overtime, with the intention of F compelling Breweries to comply with certain of the Union's demands pertaining to wages and working conditions.

Consequent upon the employees' refusal to work overtime Breweries sought urgent relief in the Witwatersrand Local Division by way of G notice of motion. The purpose of the application was to have the employees' collective refusal to work overtime declared an unlawful strike in terms of s 65(1) of the Labour Relations Act 28 of 1956 (the Act). The application was dismissed with costs by Goldstone J, but leave was granted to Breweries to appeal to this Court. The judgment of Goldstone J is reported as SA Breweries Ltd v Food and Allied Workers H Union and Others 1988 (2) SA 723 (W).

The relevant portion of s 65(1) of the Act provides:

'No employee or other person shall instigate a strike or incite any employee to take part in or to continue a strike or take part in a strike or in the continuation of a strike....'

I In terms of s 82(1)(b) of the Act a contravention of s 65(1) carried penal consequences.

The central issue in the present appeal is whether the collective refusal by the employees to work overtime in order to induce or compel Breweries to accept their employment demands constituted a strike as J defined in s 1 of the Act. In terms of the definition:

Smalberger JA

A "'strike' means any one or more of the following acts or omissions by any body or number of persons who are or have been employed either by the same employer or by different employers -

(a)

the refusal or failure by them to continue to work (whether the discontinuance is complete or partial) or to resume their work or to accept re-employment or to comply with the terms or conditions of employment applicable to them, or the retardation by them of the B progress of work, or the obstruction by them of work; or

(b)

the breach or termination by them of their contracts of employment, if -

(i)

that refusal, failure, retardation, obstruction, breach or termination is in pursuance of any combination, agreement or understanding between them, whether expressed or not; and

(ii)

C the purpose of that refusal, failure, retardation, obstruction, breach or termination is to induce or compel any person by whom they or any other persons are or have been employed -

(aa)

to agree to or to comply with any demands or proposals concerning terms and conditions of employment or other matters made by or on behalf of them or any of them or any D other persons who are or have been employed; or

(bb)

to refrain from giving effect to any intention to change terms or conditions of employment, or, if such a change has been made, to restore the terms or conditions to those which existed before the change was made; or

(cc)

to employ or to suspend or terminate the employment of any E person....'

As appears from the definition, a strike has three component parts. There must be an act or omission of the kind envisaged in (a) or (b) ; there must be collective action (in terms of (i)); and such action must be aimed at achieving one or more of the objects stated in (ii). To constitute a strike all three component parts must be present. It is F common cause in the present appeal that the conduct of the employees satisfied the requirements of (i) and (ii) of the definition. What is essentially in issue is whether the refusal to work overtime by the employees amounted to a refusal or failure by them 'to continue to work' or 'to resume their work' within the context of para (a) of the definition. If it did, their conduct constituted an unlawful strike. A refusal or failure 'to continue to work' implies a refusal to do work G currently in progress. The phrase appears to envisage a so-called 'down-tools' situation. It would not appear to be particularly apposite to overtime work following a normal shift. The phrase 'to resume their work' may more aptly cover such a situation. For the purposes of the present appeal, however, I shall accept that both phrases embrace the H notion of overtime work. The question remains whether the refusal of the employees to work overtime brought their conduct within the relevant...