by Johan Olivier & Lizle Louw, Partners at Webber Wentzel

Webber Wentzel’s employment team recently received instructions from several mining houses to assist with secondary strike interdicts. During the initial stages of this matter, Webber Wentzel received instructions from 13 mining houses. However, after strike notices were withdrawn at 7 of these, we assisted the remaining 6 mining houses with strike interdict proceedings in the Labour Court.

Johan Olivier and Lizle Louw, appeared and argued in the Labour Court proceedings on behalf of 5 out of the 6 mining houses that Webber Wentzel acted for. Olivier and Louw assisted these mining houses in avoiding financial losses in excess of ZAR2 billion.

Background

The matter originates from the ongoing and protracted wage strike (primary strike) at Sibanye-Stillwater (Sibanye) gold mine which commenced in November 2018 called by AMCU.

On 20 February 2019, AMCU issued notices of its intention to commence secondary strike action. These notices were issued to 15 mining houses in total. According to the notices, the strike would run for a period of 7 days (commencing on 28 February).  The notices were issued to employers in the gold, platinum, chrome and vanadium sectors.

Secondary strikes under labour law

Secondary strikes are regulated by section 66 of the Labour Relations Act No. 66 of 1995 (LRA) as amended. In order to qualify as a secondary strike, the strike must be directed at an employer other than the employer who employs the primary strikers. Section 66(2)(c) of the LRA states that a secondary strike will only be considered as reasonable if it can be shown that the nature and extent of such a strike will have a direct or indirect effect on the business of the primary employer. This section is loosely termed as the reasonableness requirement which entails the weighing up of two factors.

The first factor involves an enquiry into the duration and form of the strike, number of employees involved, their conduct and the magnitude of the strike's impact on the secondary employer and the sector in which it occurs.

The second factor relates to the extent of the pressure that is placed on the primary employer by the secondary strike.

In essence, this entails a proportionality assessment - the harm caused by the secondary strike to the secondary employer must be in proportion to the harm caused to the primary employer. The assessment ultimately considers the extent of the pressure that is placed on the primary employer through the secondary strike.

If the reasonableness requirement is not met, the secondary strike becomes superfluous amounting to an exercise in worker solidarity simply for the sake of worker solidarity.

Industry-wide secondary strikes

This matter was unique in that AMCU called for a campaign of secondary strike action across the mining industry.  In other words, AMCU sought to group together a collection of secondary employers and argued that a combined campaign of secondary strike action would have the effect they desired upon Sibanye.

Judgment

On 15 March 2019, the Labour Court handed down its judgment, finding that AMCU did not satisfy the reasonableness requirement under section 66(2)(c). The judge accepted that a secondary strike may be called to offer emotional support and apply socio-economic pressure on the primary employer. However, this cannot be the sole purpose of a secondary strike. It must be shown that the secondary strike can impact upon the business of the primary employer and the collective bargaining process. In this matter, the court said that the affected mining houses are in no position to influence Sibanye to accept AMCU's demands (which form the basis of the primary strike).

The court also found that the impact of each secondary strike had to be evaluated individually and that our law did not provide for an assessment of the cumulative impact of the secondary strikes on Sibanye. The court held that the enquiry into reasonableness of a secondary strike does not permit the grouping together of a collection of secondary employers within an industry. Each secondary employer would be deprived of the protection afforded by section 66(2)(c) if this was permitted.

This matter will be written into the history of labour law in South Africa for the following reasons:

• This is the first time that the Labour Court has had to consider a campaign of secondary strikes called for by a trade union across a particular industry.
• The court set an important precedent regarding such a campaign in holding that the reasonableness requirement was not met.
• This judgment avoids serious financial losses for the affected mining houses as well as the South African economy as a whole.
• The number of mining houses involved in this matter was also unique.