It is legitimate for a union to place additional pressure on the primary employer to meet its demands by calling out its members employed by another employer, subject to the procedural requirements introduced by s66(2)(a) and (b) and the reasonable requirements introduced by s66(2)(c) of the LRA. How did the labour court recently, in Anglo Gold Ashanti Ltd and Others v Association of Mineworkers and Construction Union and Others (2019) 30 SALLR 216 (LC), interpret these requirements:
In Anglo Gold Ashanti, the labour court followed the following approach:
- section 66(2)(c) of the LRA places emphasis on the effect that a secondary strike may have on the business of the primary employer and this is a factor that requires consideration in determining the reasonableness of the strike. This entails an enquiry into the nature and extent of the secondary strike, which involves an enquiry into its impact on the secondary employer. It also entails an enquiry into the possible direct or indirect effect that the secondary strike may have on the business of the primary employer. Ultimately, it is a proportionality assessment aimed at determining whether the harm caused by the secondary strike to the secondary employer is in proportion to the effect or impact or potential effect or impact on the business of the primary employer. If the harm caused to the secondary employer is in proportion to the effect of the secondary strike on the business of the primary employer, the secondary strike satisfies the requirements of s66(2)(c) of the LRA and the strike will be protected and, if it does not, the strike will be unprotected;
- essentially, it is an enquiry into the extent of the pressure that is placed on the primary employer (see SA Local Government Association v SA Municipal Workers Union (2007) 28 ILJ 2603 (LC) (‘SALGA1’), paragraph [16]);
- the relevant legal principles in regard to the reasonableness requirement were enunciated in SALGA1 as follows:
‘[16] Whether or not a secondary strike is protected is determined by weighing up two factors – the reasonableness of the nature and extent of the secondary strike (this is an enquiry into the effect of the strike on the secondary employer and will require consideration, inter alia, of the duration and form of the strike, the number of employees involved, their conduct, the magnitude of the strike’s impact on the secondary employer and the sector in which it occurs) and secondly, the effect of the secondary strike on the business of the primary employer, which is in essence an enquiry into the extent of the pressure that is placed on the primary employer’;
- the labour appeal court in SALGA v SAMWU (2011) 32 ILJ 1886 (LAC) (‘SALGA2’), at paragraph [95], upheld SALGA1 and confirmed that s66(2)(c) of the LRA imported a proportionality test and that the proportionality enquiry involved in s66(2)(c) is about the weighing up of two factors: the reasonableness of the nature and extent of the secondary strike, thus the effect of the strike on a secondary employer, and the effect of the nature and extent of the secondary strike on the business of the primary employer; and
- In SALGA2, the labour appeal court confirmed that:
‘[10] Under the heading of proportionality, the court must weigh the effect of the secondary strike on the secondary employer and the effect of the nature and extent of the secondary strike on the business of the primary employer. The subsection does not require actual harm to be suffered by the primary employer but that there must be the possibility that it may. The harm that the employer may suffer is not required to be direct. It may be harm that indirectly affects the business of the primary employer. It would, therefore, in every case require a factual inquiry to determine whether or not the possible effect the secondary strike will have on the business of the primary employer is reasonable. The harm that may be suffered by the secondary employer must be proportional to the possible effect the secondary strike may have on the business of the primary employer.’
