Section 66 of the LRA imports the proportionality principle in determining the reasonableness of a secondary strike

March 1st, 2022
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Association of Mineworkers and Construction Union and Others v AngloGold Ashanti Ltd t/a AngloGold Ashanti and Others [2022] 2 BLLR 115 (CC)

Section 66(1) of the Labour Relations Act 66 of 1995 (the LRA) defines a ‘secondary strike’ as a ‘strike, that is in support of a strike by other employees against their employer’. From this definition, a secondary strike involves two employers. The primary employer, whose employees are on strike to remedy a dispute that they have. The secondary employer, whose employees are on strike in support of the employees of the primary employer. The nature and extent of any right to engage in secondary strike has been interpreted inconsistently in the labour relations community.

Some members contend that, ‘in relation to the primary employer, a secondary strike must have an effect, and that, in relation to a secondary employer, the secondary strike must be reasonable’ (Post Judgment Media Summary (www.concourt.org.za, accessed 1-2-2022)). Therefore, implying a principle of proportionality. While other members are of the view that priority should be afforded to the effect of the secondary strike on the business of the primary employer rather than the harm to the secondary employer.

This debate whittles down to the interpretation and application of s 66(2) of the LRA. In a recent Constitutional Court (CC) decision of AngloGold Ashanti Ltd t/a AngloGold Ashanti, the issue of whether the LRA imports the principle of proportionality into secondary strike action was considered.

The facts 

In November 2018 the members of the Association of Mineworkers and Construction Union (AMCU) employed by Sibanye Gold Ltd embarked on a wage strike. In February 2019, while the primary strike was ongoing, AMCU gave notice in terms of s 66 of the LRA of secondary strike action to ten mining companies operating in different mineral sectors. These strikes were to commence on 28 February 2019 and continue until 7 March 2019. The secondary strikes would involve all AMCU members employed by the ten mining companies.

The ten employers approached the Labour Court (LC) for an interdict preventing AMCU and its members from participating in the strike on the basis that the strike did not meet the requirements for a protected secondary strike as provided in s 66 of the LRA. The LC found that all the secondary strikes were unprotected. AMCU approached the Labour Appeal Court (LAC), by then the primary strike had already been resolved. The union stated that ‘exceptional circumstances existed for the hearing of the matter based on a significant point of law, being the interpretation of section 66(2)(c) of the LRA, the Labour Appeal Court held that the interpretation was already settled in law and proceeded to dismiss the appeal on account of its mootness’ (Post Judgment Media Summary (op cit)). The union then sought, and was granted, leave to appeal to the CC. The CC held that although the matter was moot, it was in the interest of justice to grant leave to appeal citing the importance of the issue to employers and trade unions.

The law 

Section 66(2) of the LRA imposes three limitations on the right to engage in a secondary strike. The limitations are as follows:

‘(a) the strike that is to be supported complies with the provisions of sections 64 and 65;

(b) the employer of the employees taking part in the secondary strike or, where appropriate, the employers’ organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement; and

(c) 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.’

The decision

The CC held, ‘in its interpretation of section 66(2)(c) of the LRA, that, in relation to the primary employer, a secondary strike must have an effect, and that, in relation to a secondary employer, the secondary strike must be reasonable’ (Post Judgment Media Summary (op cit)). The court interpreted the phrase ‘reasonable in relation to’ in s 66(2)(c) of the LRA to import proportionality in the assessment of reasonableness. As a way of illustration, the CC found that AMCU’s proposed secondary strike would not be proportionate and reasonable, mainly, for having no effect on Sibanye as the primary employer. Furthermore, the secondary strikes would have been unreasonably destructive regarding their impact on the secondary employers.

The CC also considered two subsidiary questions. The first question was: Can a court aggregate secondary employers in the assessment of ‘whether a secondary strike is reasonable in relation to its effects on the business of the primary employer’? (See para 163). The CC supported the notion that the assessment of reasonableness must focus on the individual secondary employer that is challenging the lawfulness of a secondary strike. However, contingent on the facts, multiple secondary employers can be aggregated for purposes of the inquiry in terms of s 66(2)(c) of the LRA.

The second subsidiary question was whether the prospect of violence during the secondary strike is a consideration when assessing the reasonableness of a secondary strike. The CC found it so. Notwithstanding, the court preferred the route of the secondary employer obtaining an interdict to prohibit the violence without interfering with the secondary strike. The CC dismissed the appeal against the judgments of the LC and the LAC, except insofar as the cost orders were concerned. Consequently, each party was ordered to pay its own costs.

Conclusion

The debate is settled. The proportionality principle has application in the assessment of the reasonableness of a secondary strike on the business of a secondary employer. This assessment is fact sensitive and is determined on a case-by-case basis. Therefore, employers seeking to interdict secondary strike action must furnish sufficient proof that the strike did not meet the requirements for a protected secondary strike. The CC’s decision provides protection for secondary employers who were otherwise without ‘procedural safeguards, such as conciliation and more than seven days’ notice of the intended strike that primary employers have’ (Post Judgment Media Summary (op cit)).

Tinotenda Mparutsa LLB LLM (UJ) is an LLM graduate in Johannesburg.

This article was first published in De Rebus in 2022 (March) DR 27.

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