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Article 59/2021

Labour Edge

To what extent is a nexus between a primary and secondary employer required for the secondary strike to be lawful?

  1. In SA Local Government Association v SA Municipal Workers Union (2007) 28 ILJ 2603 (LC) (‘SALGA1’), it was held that:

‘[13]   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.’

  1. ln Clidet No 957 (Pty) Ltd v SA Municipal Workers Union and Others [2011] 3 BLLR 225 (LC); (2011) 32 ILJ 1070 (LC), it was held that:

‘[8]     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.’

  1. 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.
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?