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Article 55/2021

Labour Edge

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:

  1. 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;
  2. 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]);
  3. 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’;

  1. 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
  2. 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.’

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?