What is the content of the test ‘substance over form’ when determining the true nature of a dispute?
In National Union of Metalworkers of SA and Others v Edelweiss Glass and Aluminium (Pty) Ltd (2010) 31 ILJ 139 (LC), it was confirmed that it is the duty of a court to ascertain the true nature of the dispute between the parties and, in doing so, the court must look at the substance of the dispute. It was held that:
‘[60] The true nature of the dispute may be discerned from the history of the dispute, as reflected in the communications between the parties themselves and between the parties and the CCMA, before and after referral of the dispute. Relevant documents for this purpose may include the referral form, the certificate of outcome, any relevant correspondence, negotiations between the parties, and affidavits filed in court proceedings in which the issue must be determined.
[61] Although as a general proposition it may be said that the issue in dispute over which a strike may be called must be the issue in dispute that was referred to conciliation, this is not a rule “to be applied in a literal sense”. This would unduly restrict the process of collective bargaining. Parties may readily modify or develop their demands in the course of a collective bargaining dispute, whether during or after the conciliation process. But this does not mean that a trade union may call a strike ostensibly in support of one demand when the true demand is one over which no strike is permissible. One of the considerations which the court will take into account is whether the nominal issue in dispute is the true dispute’.
