Secondary strikes and their proportional impact on both the primary and secondary employer

The right to strike is protected in terms of section 23(2)(c) of the Constitution of the Republic of South Africa, 1996 (the Constitution). The Labour Relations Act 66 of 1995 (the LRA) regulates this right in terms of its section 64. The LRA defines a strike in section 213 and goes further to provide for a secondary strike (also known as a "sympathy strike") in section 66. Given the concept of secondary strike as provided for in the LRA, an ordinary strike is usually referred to as a "primary strike" (Du Toit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law: A Comprehensive Guide 6ed (2015) 361; Van Niekerk, Smit (eds), Christianson, McGregor and van Eck Law@work (2019) 465). A primary strike is by employees who have a dispute with their employer, which relates to "matters of mutual interest or terms and conditions of employment" (Manamela "Matters of mutual interest for purposes of a strike - Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa 2014 9 BLLR 923 (LC)" 2015 Obiter 791-800; NUMSA obo Members v SAA 2017 38 ILJ 1994 (LAC)). These employees engage in strike action to pursue their demands or grievances which are directed against their employer (Grogan Collective Labour Law 3ed (2019) 292). A secondary strike is by employees in support of other employees who are engaged in a strike against their employer. Employees of the secondary employer therefore support striking employees of the primary employer, even though they have no material interest in the matter that gives rise to the primary strike. This is based on the assumption that if a business is connected to another one, then if employees of the former engage in strike action, the strike will have an impact on the functioning of the latter, which will be forced to accede to demands by its employees. The right to strike is not absolute and therefore can be limited in line with section 36 of the Constitution. Amongst others, for a primary strike to be protected, certain procedural requirements prescribed by section 64 of the LRA should be met. Similarly, a secondary strike must meet certain procedural requirements to be protected. On face value, the use of a secondary strike by secondary employees against their employer seems unfair and unreasonable (Firestone SA (Pty) Ltd v NUMSA 1992 13 ILJ 345 (T) paras 349C-D; Barlows Manufacturing Co Ltd v MAWU 1988 9 ILJ 995 (IC) para 1005I). Actually, the secondary employer has nothing to do with the dispute between the primary strikers and their employer. Although a secondary strike may directly or indirectly increase the pressure on the primary employer to accede to the demands of its employees, it will understandably have some negative impact on the secondary employer. For this reason, this analysis will consider the right to strike as far as it relates to a secondary strike; requirements for the protection of a secondary strike, however, with specific focus on the requirement that the nature and extent of the secondary strike must be reasonable concerning the possible effect it may have on the business of the primary employer. This requirement will also be discussed as far as the secondary strike may have an impact on the secondary employer. The development of the law based on case law, in this regard, will also be considered until the recent case of Association forMineworkers and Construction Workers Union v AngloGold Ashanti Limited t/a AngloGold Ashanti 2022 43 ILJ 291 (CC) (hereafter AMCU v AngloGold Ashanti (CC)).