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When can a trade union be held in contempt of court?

Kirsten Caddy
ARTICLES

In a judgment handed down by the Labour Appeal Court (LAC) on 12 June 2014 (Food and Allied Workers Union v In2food (Pty) Ltd (case number J861/2013), the LAC considered the circumstances under which a trade union can be held in contempt of a court order prohibiting an unprotected strike.

Facts of the case:

• The employees embarked on an unprotected and violent strike.

• An interdict was obtained against the union and the individual strikers to address the unlawfulness of the violence and to stop the unprotected strike.

• Among others, the court order provided that both the trade union and the strikers were interdicted from continuing with the illegal and unprotected strike action and from preventing free movement and access to the employer's premises.

• After the interdict had been granted, the violence and strike didn't stop.

• The employer brought an urgent contempt application before the Labour Court (LC), which held that both the union and its members were in contempt of the order issued.

• The single ground of appeal brought by the trade union was that there was no evidence the trade union had breached the court order. What really needed to be decided was if evidence existed of the trade union 'continuing' the illegal and unprotected strike action and/or 'blocking access to the employer's premises and 'inhibiting people from entering and leaving', as distinct from a breach by the individual union members on strike.

• The LAC made the following important findings:

- The fact that a trade union can be liable for the acts of its members doesn't assist in deciding if the trade union, in its own right, has breached a court order.

- Where there is evidence to implicate the trade union vicariously in the unlawful acts of its members, there may well be an action available to the employer for damages, but the liability of the trade union for contempt of a court order is strictly determined by referring to the what the court ordered the trade union itself to do and presenting evidence that it didn't do as it was told.

- Formulating the court order against the union was vague as the proof of breach and the envisaged effective execution weren't outlined.

- The wording couldn't be interpreted to place an obligation on the trade union to take positive steps to end the strike (as argued by the employer)*.

• The LAC held that - in other cases where contempt proceedings were successfully prosecuted against the trade unions involved - the degree of clarity in the orders was the point of departure for the enquiries. This point is illustrated in the following cases:

- Security Services Employer's Organisation and Others v SATAWU (2007) 28 ILJ 1134 (LC): The trade union was directed by a court order to ensure that copies of an order interdicting further strike action were brought to the attention of its members by attaching copies to various places and maintaining such notices until the workers had all resumed work.

The trade union didn't do so.

A breach was proven and the liability of the trade union was based on its direct breach of obligations imposed on it in the court order.

- Supreme Spring, a division of Met Industrial v MEWUSA (J2067/2010): The court order specifically instructed the union to take concrete action, i.e. to stop inciting the striking employees to participate in the strike.

Instead, the trade union approached the employer to try and negotiate for the strike to be halted in return for the employer abandoning the court proceedings.

The court held that this behaviour was inconsistent with the order directing the union not to encourage or incite the strikers to carry on with the strike.

• In the case under discussion, the LAC held that no evidence existed to find that the union was continuing the unprotected strike action or that the union had blocked or incited/encouraged the blockage of the entrance to the employer's premises.

• In addition, evidence was provided – in the form of a letter written by the employer's management to the union - stating "... despite four attempts by your union to convince the workers to return to work they do not listen to you and it is clear that you have no control over them."

• The LAC found that the trade union was not shown to have breached the court order.

Whether a trade union is guilty of breaching a court order is a question of fact. Merely because its members are in contempt of the court order is insufficient to establish that the union itself has breached the court order.

* An interdict order against a trade union should plainly state what action is compulsory and not confuse the trade union's obligations with that of its members. The terminology of 'continuing' the strike was too vague to be useful in a context where quasi-criminal sanctions (i.e. contempt) were at issue.


Kirsten Caddy is an associate in the employment practice at Cliffe Dekker Hofmeyr. She studied at the University of Pretoria and graduated cum laude for both her BCom (Law) and LLB degrees. Kirsten also obtained a post-graduate diploma in labour law from the University of South Africa.


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