Lawful secondary strikes

In Association of Mineworkers and Construction Union and Others v AngloGold Ashanti Ltd t/a AngloGold Ashanti and Others 2022 (8) BCLR 907 (CC), substantive requirements for lawful secondary strikes.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Constitutional law - Substantive requirements for lawful secondary strike: After the Labour Court interdicted numerous secondary strikes at ten mining companies in support of a primary strike at Sibanye Gold, application was made by the Association of Mineworkers and Construction Union (AMCU) and its members for leave to appeal. AMCU argued that the interpretation of s 66(2)(c) of the Labour Relations Act 66 of 1995 (LRA) by the Labour Courts, which imputes a proportionality assessment that considers the harm suffered by secondary employers, does not accord with the language of the provision.

In the majority judgment in Association of Mineworkers and Construction Union and Others v AngloGold Ashanti Ltd t/a AngloGold Ashanti and Others 2022 (8) BCLR 907 (CC), the appeal turned on the substantive requirements for lawful secondary strikes in terms of s 66(2)(c), the dispute related primarily to the interpretation and application of that section, which provides that: ‘No person may take part in a secondary strike unless –

…

(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 analysis of s 66(2)(c) began with an appreciation that the LRA seeks to give effect to s 23 of the Constitution. Apart from undertaking an interpretation and application of s 66(2)(c), the court examined the provisions of s 23 of the Constitution and discussed the role of collective bargaining in labour relations. Also traversed was the way South Africa gives effect to the constitutional right to strike in the LRA.

While emphasising the importance of collective bargaining, the court warned that no right, including the right to strike, is absolute. Limitations on the right to participate in a secondary strike arise from both the Constitution and the LRA, although any limitation must comply with s 36 of the Constitution. The scheme of the Act, in regulating strikes, aims to provide clear procedural requirements. Once they are met, employees may lawfully embark on peaceful strikes. Secondary strikes replicate the pre-eminence of collective bargaining and the right to strike. Once a trade union fulfils the formal requirements prescribed in s 66(2)(a) and (b), para (c) stipulates the substantive requirements. Unlike the broad scope of common law interdicts, the text of s 66(3) narrows the grounds for interdicts. The procedural requirements for a strike are far more onerous than for a secondary strike.

The court found that s 66(2)(c) imports a proportionality analysis as the requirements of proportionality and reasonableness in respect of secondary strikes provide safeguards for secondary employers. In this case, the secondary strike was not reasonable.

Merilyn Rowena Kader
Legal Editor at LexisNexis