The causal nexus in sympathy strikes as examined in Coca Cola Fortune (Pty) Ltd v Food and Allied Workers Union and Others (J01/2010)

Posted: March 2, 2010 in Uncategorized

Coca Cola Fortune is a franchisee of Coca Cola Africa (Pty) Ltd and has rights to bottle and distribute Coca Cola products to certain designated regions in South Africa. It is the exclusive distributor in these regions. [at §4]

FAWU’s members employed at ABI are currently participating in a nationwide protected strike at ABI. [at §5]

ABI has a franchise agreement with Coca Cola Africa which affords it exclusive rights to bottle and distribute Coca Cola products in certain regions in South Africa other than those where the applicant distributes (at §6) and FAWU has not initiated a secondary strike at Coca Cola Africa. [at §7]

The Labour Court (per Bhoola J) concluded that only issue for determination is whether the secondary strike proposed at the applicant would comply with the substantive requirements of section 66 (2)(c), which requires the nature and extent of a secondary strike to be “reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer”. [at §10]
FAWU contended that: “[t]he Coca Cola Company (presumably a reference to Coca Cola Africa) will be able to exert influence over ABI to resolve the disputes underlying the primary strike”.

Coca Cola Fortune submitted that FAWU would be in a position to do would be to exert pressure on Coca Cola Africa in the hope that as a consequent or “knock on” effect this would lead to Coca Cola Africa exerting pressure on ABI to resolve the dispute giving rise to the primary strike.

The Labour Court recorded agreement with this proposition and stated that the likely of Coca Cola Africa being able to exert pressure on Coca Cola Africa “is a remote possibility and could open the floodgates to secondary strikes with potentially limited indirect effect. However, even the potential ‘knock on’ effect… is a remote possibility given that that the primary and secondary employers are co-franchisees and in fact competitors. This is particularly so in circumstances where there is no secondary strike at Coca Cola Africa, which would render the likelihood of a shortage of product resulting in Coca Cola Africa exerting pressure on ABI to resolve the primary strike to be even more fallacious”. [at §13]

The Labour Court then concluded that “the absence of a secondary strike at Coca Cola Africa, for which no reasons have been furnished, would render the effect on the primary dispute a remote possibility, and would on its own justify a refusal of the relief sought by… FAWU. The reliance by… FAWU on the potential indirect ‘knock on’ effect of the secondary strike on the business of ABI would not in my view render the proposed nationwide and indefinite secondary strike at… Coca Cola Fortune reasonable. Accordingly, in my view, the nature and extent of the proposed secondary strike does not appear to be reasonable in relation to its possible effect on the primary dispute. Thus the requirements of section 66(2) (c) read with section 68 have not been satisfied”. [at §15]

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