When is a secondary strike protected?

In SALGA v South African Municipal Workers Union (http://www.justice.gov.za/labourcourt/jdgm-lbac/lbac2011.htm), the Labour Appeal Court for the first time considered the meaning of section 66(2) of the Labour Relations Act 66 of 1995 ( as amended).

Section 66 (2) of the LRA provides that, a person may participate in a secondary strike if the primary strike complies with the requirements of the LRA, that a written notice has been given to the relevant party in terms of section 66(2)(b) and 'the nature and extent of a secondary strike is reasonable in relation to the posible direct or indirect effect that the secondary strike may have on the business of the primary employer'. It was the meaning of this last requirement that was at the heart of the matter in the SALGA judgement.

However before we deal with this decision, it may be useful for laypersons to understand the difference between a primary and secondary strike. This is perhaps best illustrated by way of an example. Lets imagine that the members of union X go on strike against VW South Africa in order to compel the employer to give into a wage demand. Sometime later, union X calls for a strike at Michelin Tyre manufactures who supply tires to VW in order to compel VW to give in to their wage demands. The withholding of labour in respect of VW would constitute the primary strike. The withholding of labour in respect of Michelin Tyres would constitute the secondary strike. A secondary strike should also be distinguished from a sympathy strike. In the case of the former, the purpose of the strike is by impacting on the business of the secondary employer to effect a impact on the business of the primary employer with the purpose of compelling the primary employer to give into the demands of the union involved in the primary strike. In the case of the latter, no such effect is necessary. The purpose of a sympathy strike is simply to voice support for another strike.

In SALGA v SAMWU matter, the material facts were as follows. The respondent trade union SAMWU was engaged in strike in respect of National Goverment. It then gave notice that it sought to enagage in a secondary strike at municipal level in support of its primary strike. SALGA then brought an application before the Labour Court to inderdict the secondary strike on the basis that inter alia, the proposed secondary strike at Municipal level would have no effect on the National Goverment and that therefore the requirment as per section 66(2)(c) has not been met. Essentially SALAG's position what the the secondary strike was not reasonable. The court a quo ( the Labour Court ), per Van Niekerk AJ as he then was disagreed and found that the proposed strike did comply with the requirments of section 66 (2)(c) ( See SALGA v SAMWU [2008] 1 BLLR 66 (LC) ).  SALA then appealed against the decision to the Labour Appeal Court.

On appeal, the LAC upheld the decision of the LAC. However in comming to its decision, the court per Waglay, JA made the following points:

1. The test as per section 66(2)(c) of the LRA is a proportionality test. That is to say that the effect or potential effect on the buisness of the primary employer must be proportionate to the harm caused to the buinsess of the secondary employer. The court said that:

' Under the head 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

sub-section 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 indirectly7

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.'

This finding was significant because prior to the decision by the LC in this matter, the courts had rejected a proportionality approach to section 66(2)(c). The decision by the LAC now clarifies the position in that it has endorsed a proportional approach.

2. SALGA argued that in order for the strike to be protected as a secondary strike, it must aim to put pressure on the secondary employer who will in turn pressurise the primary employer into giving in to the demands in question. This arguement was rejected by the court. The LAC said that all that was required is that the secondary stikers must show that thier strike may have a direct or indirect effect on the buisness of the primary employer. That is to say the reasonablness of the strike is not measured against the capacity of the secondary employer to infleunce the primary employer.

3. Local Goverment is sufficiently integrated with National Goverment and that as Local Goverment provides various support and services to Provincial and National Goverment, a strike a local goverment level may potentiay have an impact on the operations of the Provincial and National Goverment.

Please note that the above post was for informational purposes only. The author of the post does not accept liability resulting from the use of this information. Anyone who is faced with a secondary strike must seek the opinion of the appropriate professional.

Grant Ray-Howett.