To what extent is a nexus between a primary and secondary employer required for the secondary strike to be lawful?
- In SA Local Government Association v SA Municipal Workers Union (2007) 28 ILJ 2603 (LC) (‘SALGA1’), it was held that:
‘ To the extent that SALGA’s submission contemplates a requirement that there be a particular linkage between the primary and secondary employers (the “ally” or ” associated employer” doctrine adopted in some jurisdictions), it ignores the emphasis placed by s66 on the effect the secondary strike has on the business of the primary employer. This is not to say that some relationship or nexus between the primary and secondary employer is not a requirement, indeed it is difficult to conceive how a secondary strike could have a direct or indirect effect on the primary employer’s business without some relationship of sorts between the two employers. But it is not as SALGA’s averment implies, a determinative factor whenever the nature of that relationship is one of dependency. The approach adopted by s66(2) is to require the harm caused to the secondary employer to be proportional to its impact or likely impact on the business of the primary employer.’
- ln Clidet No 957 (Pty) Ltd v SA Municipal Workers Union and Others  3 BLLR 225 (LC); (2011) 32 ILJ 1070 (LC), it was held that:
‘ In the present instance, the two businesses represented by the primary and secondary employer are both service providers to an enterprise managed ultimately by a third party. MTC [the primary employer] manages the bus stations; the applicant [the secondary employer] operates the buses, ultimately for the benefit of the city. In one sense, the two entities share a connection – the stations exist to serve the buses, and the buses could not operate effectively without the stations. But that is not the test. The legitimacy (or otherwise) of the secondary strike must be determined by determining the nature and extent of the proposed secondary strike, and weighing that against the harm that will he caused to the business of the primary employer. This approach is obviously better suited to employers that stand in a relationship of customer and supplier, or who enjoy a connection by way of a common shareholding or some other nexus that bears on the capacity of the secondary employer to place pressure on the primary employer to resolve its dispute with the union. Where both employers, as they are in the present instance, simply provide services for the benefit of a common client, it is difficult to appreciate how, ordinarily, the one is in a position to influence the other.’
- Although a nexus between the primary and secondary employer is neither a formal requirement nor determinative, it is difficult to conceive how a secondary strike will have a possible direct or indirect effect on the business of the primary employer in the absence of any nexus between the primary and secondary employers. This is more so where it is, in essence, an enquiry into the extent of the pressure that is placed or could be placed on the primary employer.
It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest. Does this equate to a lockout notice?