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16 Nov 2021
BY Peter le Roux

Secondary Strikes: the Constitutional Court provides some clarity

Secondary strikes must be “proportionate” in order to be “reasonable”. This is the central finding of the majority decision of the Constitutional Court in Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others. What this means and the implications of this decision will be briefly discussed in this ENSight.

the facts

In November 2018 the members of the Association of Mineworkers and Construction Union (“AMCU”) employed by Sibanye Gold Ltd (“Sibanye”) embarked on a strike in support of a demand for improved terms and conditions of employment. By February 2019 the dispute had not yet been resolved and AMCU decided to call a secondary strike in order to place further pressure on Sibanye to settle the dispute. It gave notice in terms of section 66(2) of the Labour Relations Act, 1995 (“the LRA”) to a number of employers in the mining sector that its members employed by these employers would embark on a secondary strike from 7 March 2019.

Ten employers then approached the Labour Court for an interdict preventing AMCU and its members from calling or participating in such a strike on the basis that the strike did not meet the requirements for a protected secondary strike as contained in section 66 of the LRA. The Labour Court found that the secondary strike was indeed unprotected. This finding was upheld on appeal by the Labour Appeal Court. AMCU then sought, and was granted, leave to appeal to the Constitutional Court.

the law

Section 66(1) Of the LRA provides a definition of a secondary strike. The relevant part of the definition states that a secondary strike is -

“ … a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer ….”

It is evident from the definition that a secondary strike involves two employers, namely, the primary employer whose employees are on strike (termed the primary strike) in support of demand that they are making against their own employer, and a “secondary employer” (or secondary employers) whose employees are on strike in support of the employees of the primary employer.

On the facts of this case it was clear that the strike that would commence on 7 March 2019 was a secondary strike. AMCU’s members employed by the ten secondary employers were not going on strike in support of their own demand relating to terms and conditions of employment. Their strike was in support of the demand that AMCU and its members had made against Sibanye. The question was whether the secondary strike would be protected.

Section 66(2) states that a secondary strike will be protected strike if three requirements are met:

  • The first is that the primary strike must be a protected strike.
  • The second is that at least seven days’ notice of the proposed secondary strike must be given to the employer or employers whose employees will be embarking on the secondary strike.
  • The third requirement is that –

 “ ..the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.”

It is this third requirement, found in section 66(2)(c), that has been central to the debate whether a secondary strike would be protected. It was included in section 66(2) to meet the concerns of employers that employers who had little or no connection with the primary employer could be subjected to a secondary strike.  

Constitutional Court’s findings

In some earlier decisions interpreting section 66(2)(c), the Labour Court took the view that the section did not require that the impact of the secondary strike on the secondary employer be considered, in determining whether the secondary strike met the requirements of section 66(2)(c). If it was considered, according to this line of cases, it would at least play a minor role. However, this approach was rejected in later decisions which adopted a “proportionality” test. This involved assessing the effect of a secondary strike on the secondary employer and assessing the effect of the secondary strike on the primary employer and then determining whether these effects were “proportionate”. A secondary strike that could cause substantial losses to a secondary employer and have little impact on the primary employer would be disproportionate. On the other hand, if the secondary strike would have a significant impact on the primary employer the losses suffered by the secondary employer would be less relevant in determining the proportionality of the strike.

Whether the proportionality played any role in the interpretation of section 66(2)(c) was the central question that the Constitutional Court had to determine. After a detailed analysis the wording of the section, a consideration of how the International Labour Organisation and various foreign jurisdictions approached secondary strikes, the majority decision found that the proportionality approach was the correct approach. It did so is the following terms:

“[88]     The phrase “in relation to” in section 66(2)(c) unambiguously anticipates a comparison. The comparators are firstly, the secondary strike and business of the primary employer, and secondly, the secondary strike and business of the secondary employer. The standard prescribed for comparison is reasonableness. Thus, the phrase “reasonable in relation to” imports proportionality in assessing reasonableness. Conceptually, proportionality and reasonableness often converge but not necessarily. In balancing the right to strike with the rights of primary and secondary employers, all factors must be considered to determine, not just proportionality, but ultimately, reasonableness. For reasonableness is the standard or attribute to which the LRA aspires for secondary strikes because the right to strike is constitutionally entrenched. …

[89]      Recognising proportionality and reasonableness of the secondary strike anticipates some safeguards for secondary employers. Otherwise, they would have no means of protecting their businesses. Their employees, who are non-unionised or who belong to trade unions other than the one calling for the secondary strike, may also want protection. Proportionality limits the right to participate in a secondary strike and introduces safeguards to rebalance the rights of secondary employers more favourably relative to the primary employer.”

In so far as this approach may infringe the constitutional right to strike, such a limitation was justified.

The majority decision went on to find that, on the facts of this case, AMCU’s proposed secondary strike would not be proportionate and reasonable. The evidence showed that a secondary strike would have no effect on Sibanye’s business and that the impact of the strike on secondary employers would be “unreasonably destructive”.

The majority decision also considered two further issues that it described as “subsidiary questions”. The first, which was one of the central issues debated by the parties, arose from the fact that AMCU gave notice of a secondary strike to a number of employers. The question was whether proportionality and reasonableness had to be assessed in respect of each employer individually or whether the assessment could be made by considering the secondary employers as a group. The Labour Court opted for the first approach. The majority decision of the Constitutional Court found that a –

 “… proportionality assessment must also take account of whether the secondary strikes should be considered singly or cumulatively (grouped together).”

The second subsidiary question arose from the secondary employers’ argument that the prospect of violence during the secondary strike was relevant to the proportionality assessment. The majority decision came to the conclusion that it was. This was on the premise that “once strikes cease to be peaceful they lose the protection of the law”, However, if it was possible for employers to obtain a court order interdicting the violence “without interfering with the secondary strike, that should be “the preferred route”.

comment

Employers will welcome the endorsement of the proportionality approach in assessing the reasonableness of a secondary strike. It is important to note that the assessment of proportionality is fact specific and employers seeking to have a secondary strike declared unprotected will have to be careful to provide sufficient facts to a court to justify an order that the secondary strike will be unprotected.

Given the fact that serious violence and intimidation often take place during protected strikes, the statement that once a strike ceases to be peaceful it loses the protection of the law, is of potential significance. This statement was made in the context of secondary strikes but it may be of equal relevance in the context of a primary strike.

Peter le Roux

Employment | Executive Consultant

pleroux@ENSafrica.com

+27 83 626 2909