The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation. At arbitration, the union wanted to join the employees working at the mill.
Is such joinder permissible?
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- The constitutional court, in National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC), held that a matter has to be conciliated before the labour court has jurisdiction to arbitrate it.
- The labour court, in Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU, held that the above rule is equally applicable to arbitration proceedings – with reference to the aforesaid factual matrix, the labour court held that the employees working at the mill could not be joined at the arbitration stage, seeing that they were not party to the dispute processed through conciliation.
