Defy Appliances Limited and Another v NUMSA and Others (D645/2001) [2001] ZALC 98 (5 July 2001)

Defy Appliances Limited and Another v NUMSA and Others (D645/2001) [2001] ZALC 98 (5 July 2001)

The court held that the recommendation issued by the Bargaining Council did not qualify as an advisory award as contemplated by section 64(2) of the Labour Relations Act. No arbitration process was conducted prior to the recommendation, which was merely procedural and did not address the substantive issues in dispute. The statutory requirement for advisory arbitration is an absolute prerequisite for protected industrial action in refusal to bargain disputes. The respondents failed to comply with this requirement, and as a result, any strike action contemplated would be unprotected and unlawful.

Citation
[2001] ZALC 98
Parties
Applicant: Defy Appliances Limited; Applicant: Defy Refigeration Limited; Respondent: NUMSA & Another; Respondent: P Anwar & Others
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
5 July 2001
Case Number
D645/2001
Procedural Posture
Urgent Application / Interdict Application Before Labour Court
Outcome
Application granted. Interdict issued against respondents. Costs awarded against respondents.
Judges
Pillay
Legal Topics
Refusal to Bargain, Advisory Arbitration, Strike Interdict, Procedural Compliance, Conciliation and Arbitration
Labour Law Civil Procedure Refusal to Bargain Advisory Arbitration Strike Interdict Procedural Compliance Conciliation and Arbitration

Case Brief

Summary, issues, holding and outcome

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Parties

Defy Appliances Limited

Applicant

Defy Refigeration Limited

Applicant

NUMSA & Another

Respondent

P Anwar & Others

Respondent

Procedural Posture

Urgent Application / Interdict Application Before Labour Court

Legal Issues

  1. 1 Whether a recommendation issued by the Bargaining Council qualifies as an advisory award for compliance with section 64(2) of the Labour Relations Act.
  2. 2 Whether the procedural requirements for protected industrial action in refusal to bargain disputes were met.

Ratio Decidendi

The court held that the recommendation issued by the Bargaining Council did not qualify as an advisory award as contemplated by section 64(2) of the Labour Relations Act. No arbitration process was conducted prior to the recommendation, which was merely procedural and did not address the substantive issues in dispute. The statutory requirement for advisory arbitration is an absolute prerequisite for protected industrial action in refusal to bargain disputes. The respondents failed to comply with this requirement, and as a result, any strike action contemplated would be unprotected and unlawful.

Court Disposition

Application granted. Interdict issued against respondents. Costs awarded against respondents.

Orders

  • The respondents are interdicted and restrained from aiding, abetting, or encouraging any unprocedural strike on or after 21 May 2001 in contravention of sections 64 and 65 of the Labour Relations Act of 1995.
  • The second and other respondents are interdicted and restrained from embarking on an unprotected strike on or after 21 May 2001 in contravention of sections 64 and 65 of the Labour Relations Act of 1995.