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Yesterday, the Constitutional Court handed down judgment in the matter of AMCU and Others v AngloGold Ashanti Limited (“AGA”) and Others (in which the writer acted for AGA) addressing when a secondary strike in terms of section 66 of the Labour Relations Act, 1995 (“LRA”) becomes unprotected.

What is secondary strike action?

In terms of section 66(1), a secondary strike is defined as follows:

“a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.

In order to qualify as a secondary strike, the secondary strike must be directed at an employer other than the employer who employs the primary strikers, with the purpose of the secondary strike being to support the primary strikers.

Apart from the procedural requirements for a protected secondary strike, there is a substantive limitation on secondary strike action set out in section 66(2) of the LRA, as follows:

“No person may take part in a secondary strike unless –

(b)      …

(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 underlying facts

During late 2018, AMCU embarked on a five-month long wage strike at Sibanye Gold Limited (“Sibanye”), being the primary strike.  

AMCU served notices on various mining houses calling for its members employed by these various employers to embark on secondary strike action, to support the primary strike.

The affected employers, being innocent bystanders in that they are not themselves party to the dispute forming the subject of the primary strike, successfully launched applications in the Labour Court to declare the secondary strike action as unprotected and interdict same.

Key legal issue

The principle legal issue was how the assessment of the reasonableness requirement set out in section 66(c) of the LRA, should be considered, particularly in relation to the assessment whether the harm caused to the secondary employer is proportional in relation to its likely impact on the business of the primary employer.

AMCU contended that the proportionality assessment may be undertaken in respect of a cumulative grouping of the affected secondary employers.

The Respondents argued that such an approach would preclude each secondary employer from challenging the reasonableness of the secondary strike on its own footing, with reference to its own unique circumstances.

The Constitutional Court held that the assessment of reasonableness must be considered in relation to each individual secondary employer and that a consideration in respect of a cumulative grouping of secondary employers was not permitted.

For more information, please contact Melanie Hart at melanie@bv-inc.co.za