With Numsa threatening that its members will embark on secondary strike action it is worth considering the differences between primary and secondary strikes. Unlike any legitimate protected primary strike action the labour court does have the power to intervene in secondary strike action, even if it is ‘protected’. This must be so because unlike a primary strike the demands made by the secondary strikers do not relate directly to their own interests. Section 66 of the Labour Relations Act 66 of 1995 (LRA) regulates the powers of the labour court. A secondary employer may apply to the labour court for an interdict to prohibit or limit a secondary strike. In essence the labour court will grant such relief unless satisfied that the ‘nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer’.
One cannot do better than to provide extracts from the judgment of justice Anton Steenkamp in the labour court in Transnet Ltd v Satawu (2013) 34 ILJ 1281 (LC). In that case the secondary employer did succeed in obtaining an interim order from the labour court. If there is secondary strike action by Numsa’s members it will be interesting to see whether any of the ‘secondary employers’, who are members of Seifsa, will apply to the labour court for any form of relief.
Media statement by Herman Mashaba
Herman Mashaba has just released the following media statement calling on the Minister of Small Business to intervene
“The settlement reached by the MEIBC, Numsa and Seifsa this week demonstrates the staggering hypocrisy that dominates current discourse about the importance of small business to South Africa’s economy and is at the heart of the FMF’s legal challenge to Section 32 of the Labour Relations Act (LRA). Unions, government, employers, the media, analysts, commentators, everyone, it seems, believes passionately in nurturing small business. How, then, can this settlement have been welcomed with such relief by anyone who says they care about small business? The reality is that this agreement sounds the death knell to thousands of smaller companies in the sector.
Only the employers’ organisation NEASA is holding out on the side of small business by refusing to sign because it sees through the agreement to the devastating impact it will have on smaller firms and employment prospects for the current and soon to be unemployed workers. NEASA sees the emperor’s clothes for what they are, yet it is being slated for its pains and stands accused of struggling for power with Seifsa.
As an entrepreneur and businessman, I know first hand the risks of employing even one extra worker and I implore the new Minister of Small Business to immerse herself in the detail and consequence of this – and similar – bargaining council agreements and to act to stop this agreement being extended by the Minister of Labour who, tragically hamstrung by S 32, has no say in the matter.
The recent developments in the MEIBC negotiations reflect the unholy alliance between unions and large business. Big business (represented by Seifsa) has agreed to increases for the next three years without being concerned about the impact on small business. NEASA, representing small businesses, has refused to sign the agreement because it will put many small players out of the industry.
Numsa and Seifsa appear to have adopted the stance that the views of NEASA (i.e. small businesses) do not matter presumably because they believe they will get the agreement extended in terms of S 32 to non-parties to the agreement i.e. small businesses who were not at the bargaining table.
If the MEIBC is able to establish the necessary degree of representivity (of those who agree to settle), then, under S 32, the Minister of Labour will have no option but to extend the terms of the agreement to non-members, including small businesses. The Minister will not have the discretion to decide whether or not it is in the best interests of the greater economy to extend the agreement to non-parties, but will simply be compelled to extend.
How can this be in 2014, in South Africa, with over 8 million unemployed citizens with no real prospect of ever working in their lives under our current labour regime and with economic growth so low?
It is baffling that, while all appear to agree that this current agreement will do nothing to stem the job losses in the metal and engineering sector, it is still being welcomed as a good result.
The impact on current and future jobs is the very point that the FMF believes must be taken into account by the Minister of Labour when exercising her discretion and the reason why the case was launched.
It is unlikely that big business would have agreed to the high increases if they believed that agreements would not be extended to non-parties and that their smaller and struggling competitors would not be compelled to pay the high wages by means of a section 32 extension. This, after all, is a means of their maintaining dominant power in the industry.
If big business (Seifsa) knew that the agreement would not be extended, they might have held out for a more realistic and market related increase. This is because they would know that small businesses, through NEASA, would have held out for market related increases and hence would reduce the competitive disadvantage they experience now vis à vis big employers.
In its current form, without ministerial discretion, LRA section 32 extensions serve as a catalyst for the unholy alliance I have described and is driving up cost of production (wages) with a view to creating barriers to entry and making small business unprofitable.
Minister Lindiwe Zulu, please make this your first priority: act to save small firms in the metal and engineering industry by intervening to prevent this agreement being extended to non- parties.”
Extracts from the judgment without footnotes and hyperlinks added
The applicable legal provisions
[11] Helen Seady and Clive Thompson have pointed out that, although the Committee of Experts of the International Labour Organisation supports the rights of workers to engage in solidarity action, it recognises the need to limit this right. Other than requiring that the primary strike must itself be lawful, and that national legislation should define the parameters of a sympathy strike and the nature of the relationship between the parties that would justify such a strike, the committee has not attempted to flag further regulation.
[12] South African labour law specifically recognises and legislates for protected secondary strikes. Section 66 of the LRA regulates secondary strikes:
“66 Secondary strikes
(1) In this section ‘secondary strike’ means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.
(2) No person may take part in a secondary strike unless-
(a) the strike that is to be supported complies with the provisions of sections 64 and 65;
(b) the employer of the employees taking part in the secondary strike or, where appropriate, the employers’ organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement; and
(c) the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.
(3) Subject to section 68 (2) and (3), a secondary employer may apply to the Labour Court for an interdict to prohibit or limit a secondary strike that contravenes subsection (2).
(4) Any person who is a party to proceedings in terms of subsection (3), or the Labour Court, may request the Commission to conduct an urgent investigation to assist the Court to determine whether the requirements of subsection (2) (c) have been met.
(5) On receipt of a request made in terms of subsection (4), the Commission must appoint a suitably qualified person to conduct the investigation, and then submit, as soon as possible, a report to the Labour Court.
(6) The Labour Court must take account of the Commission’s report in terms of subsection (5) before making an order.”
[13] Carole Cooper, after an extensive analysis of sympathy strikes or secondary strikes in other jurisdictions, and in the context where the current LRA was still in Bill form, summarised the proportionality test envisaged by section 66(2)(c):
“The requirements concerning the reasonableness of the nature of the sympathy strike would mean, for instance, the prohibition of a sympathy strike where the primary and secondary strikers work in unrelated sectors or occupations and where, as a result, the secondary strike can have little impact on the primary employer’s business. Thus, for instance, the bill aims to prohibit the holding of a sympathy strike by health workers in support of a primary strike by miners with the matter in dispute is nothing to do with the interest of the health workers. As far as the extent of the strike is concerned, this could relate to the length of the strike and its scope both in terms of the area and numbers. It could mean, for instance, that a lengthy sympathy strike, which is causing serious loss to the secondary employer, will fall foul of the section if there is little chance of its having a direct or indirect effect on the primary employer’s business. On the other hand, a secondary strike involving a large number of employees or more than one enterprise, because of the possibility of its having the required effect, could be found to be permissible.”
[14] After some earlier confusion, the applicable legal principles were succinctly summarised as follows in SALGA v SAMWU :
“In short, whether or not a secondary strike is protected is determined by weighing up two factors – the reasonableness of the nature and extent of the secondary strike (this is an enquiry into the effect of the strike on the secondary employer and will require consideration, inter alia, of the duration and form of the strike, the number of employees involved, their conduct, the magnitude of the strike’s impact on the secondary employer and the sector in which it occurs) and secondly, the effect of the secondary strike on the business of the primary employer, which is in essence an enquiry into the extent of the pressure that is placed on the primary employer.”
[15] That judgement was handed down extemporaneously by Van Niekerk J. It was upheld on appeal more than three years later. The Labour Appeal Court further noted:
“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 subsection does not require actual harm to be suffered by the primary employer but that they 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 indirectly affects the business of the primary employer. It would, therefore, in every case require a factual enquiry 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.”
[16] Van Niekerk J also noted in Clidet No 597 (Pty) Ltd v SAMWU :
“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 be 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, all 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.”
[17] However, the LAC in SALGA v SAMWU disagreed that the secondary employer should be able to place pressure on the primary employer:
“There is no requirement in section 66 of the Act that the secondary employer should exert influence on the primary employer or that the secondary employer should have the capacity to exert influence on the primary employer in order to encourage it to compromise or capitulate to the demands of the workers. What section 66 requires is that the secondary strike should have a possible direct or indirect effect on the business of the primary employer and that the nature and extent of the secondary strike should be reasonable in relation to the possible direct or indirect effect on the business of the primary employer.”
Evaluation / Analysis
[18] I shall consider the question whether the applicant has made out a prima facie case for the relief sought on an interim basis at the hand of these established principles. I shall also consider the effect of the request for the CCMA to conduct an investigation in terms of section 66 (4). These principles have to be considered in the context of an application for urgent interim relief , i.e.:
18.1 a prima facie right, though open to some doubt;
18.2 a well-founded apprehension of irreparable harm;
18.3 the absence of an adequate alternative remedy; and
18.4 a balance of convenience in their favour.
In view of the discretionary nature of an interim interdict these requisites are not judged in isolation and they interact.
Mr Brickhill, for the respondent, argued that the relief sought is final in effect and that the requirements for a final interdict must be met. I do not agree. The relief sought is couched in the form of a rule nisi and it was argued on that basis. I shall therefore consider the application on that basis.
Firstly, I need to consider the applicant’s submission that the strike notice did not comply with the provisions of the collective agreement.
The strike notice
[19] In terms of s 66(2)(b), no person may take part in a secondary strike unless-
“the employer of the employees taking part in the secondary strike or, where appropriate, the employers’ organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement”.
[20] The procedural requirement is a simple one. Section 66(2)(b) requires no more than that the union must give a written notice of the secondary should at least seven days before it is due to start. It does not prescribe what that notice should contain, aside from when the strike will commence. To that extent, the notice given by SATAWU complies with this provision.
. . . .
Nature and extent of the secondary strike
[35] As Van Niekerk J pointed out in SALGA v SAMWU, the reasonableness of the nature and extent of the secondary strike entails an enquiry into the effect of the strike on the secondary employer, i.e. Transnet. It will require consideration, inter alia, of –
35.1 the duration and form of the strike;
35.2 the number of employees involved;
35.3 their conduct;
35.4 the magnitude of the strike’s impact on the secondary employer; and
35.5 the sector in which it occurs.
Duration and form of the strike
[36] The strike is set to last for one full day at TFR and three full days at TPT. It will take the form of a full-blown strike as opposed to the workers withholding their labour for a limited duration during the day or an overtime ban.
[37] Although a strike for one day does not appear to be extensive, the cumulative effect of four days’ strike action in this sector will be significant.
[38] The applicant has shown that the proposed strike by Transnet Freight Rail employees, although only for one day, will nonetheless have a major disruptive effect on its operations and on its customers. According to the applicant – and SATAWU does not contest this — it will take Transnet Freight Rail approximately a month to recover from a one day strike. SATAWU has not shown precisely how such a strike may possibly have an effect on the business of the primary employers, other than to allude to the “contractual chain” that flows from Transnet to its customers to primary employers. It is against this background that the court has to assess the requirements of reasonableness and proportionality set by section 66(2)(c).
[39] Likewise, the applicant has shown that the effect of the strike on the business operations of Transnet Ports Terminal over a period of three days will be major, and will in addition, have a catastrophic effect on what is already an ailing economy. All imports and exports transported by ship go through Transnet Port Terminals. The intention of the strike is to prevent all cargo from being loaded or off-loaded. Thus for three days, Transnet Port Terminals will not be able to conduct its business. This will affect not just Transnet Port terminals, but also Transnet Freight Rail, which delivers cargo to the ports for export and collect imported goods. Overall, the Applicant’s business will be severely and negatively affected. The Court needs to evaluate whether given the impact of the secondary strike on the Applicant – i.e. the secondary employer — and the likely effect on the business of the primary employers, the secondary strike should be allowed.
Number of employees involved
[40] The strike at TFR will involve some 36 000 employees as opposed to the now less than 25 000 employees still participating in the primary strike. At TPT the strike will last for three days and involve more than 4000 employees. As in Chubb Guarding , the disproportionate number of Transnet employees who will embark on the secondary strike relative to those of the primary employers still on strike is a factor to be considered.
Conduct of the employees
[41] It is difficult to assess the possible future conduct of the employees. However, the court has the benefit of being able to consider the conduct that has characterised the primary strike to date. It has been particularly violent and disruptive, going far beyond the aims of orderly collective bargaining and peaceful picketing.
[42] In this regard, one cannot but be reminded of the words of WB Yeats in “The Second Coming”:
Turning and turning in the widening gyre
the falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
the ceremony of innocence is drowned;
The best lack all conviction, while the worst
are full of passionate intensity.”
[43] In the case of the primary strike, SATAWU has indeed called upon its members to act peacefully, in accordance with the orders of this Court; but it seems to have had little effect. In the era since the tragedy at Marikana when workers embarking on a wildcat strike were fatally wounded by members of the South African Police Services, nationwide strikes have occurred where the falcon (the workers) will not hear the falconer (their union representatives). Even though the current primary strike is protected and sanctioned by SATAWU, it does not appear as if the union has managed to maintain control over its members. Anarchy has indeed prevailed; blood has been spilt and non-striking workers have been killed. One cannot predict with any certainty what would happen if the secondary strike were to proceed; but there is a real apprehension that the strike could exacerbate the violence that has characterised the primary strike thus far.
Magnitude of strike’s impact on secondary employer and the sector in which it is to occur
[44] I have already pointed out what a major impact the strike will have on the secondary employer. TPT and TFR do not fall within the road freight sector; as such, the major impact of the strike on the secondary employer would appear to be disproportionate to its possible direct or indirect effect on the business of the primary employers.
Direct or indirect effect on business of the primary employers
[45] The court has to consider the extent of the pressure placed on the primary employers by the secondary strike.
[46] Dealing, firstly, with TFR, the applicant has shown that Transnet Freight Rail and the primary employers are in fact competitors. They both transport goods and it is a business strategy of Transnet Freight Rail that it should lure business away from the primary employers. As was observed by Bhoola J in Coca Cola Fortune (Pty) Ltd v FAWU & Others, in such a case, the possibility of the secondary strike having an effect on the primary strike is remote, or is not one that is contemplated by section 66(2(c).
[47] In relation to the Transnet Port Terminals, SATAWU has alleged that if cargo is not off-loaded or loaded, this will have some impact on the business of the primary employers. However, if one accepts that the primary strike has brought to a halt the collection of containers by the employees of the primary employers, a secondary strike at Port Terminals will not have any effect nor is it likely to have any effect on the business of the primary employers.
. . . .
[50] The court would be greatly assisted in resolving those factual disputes, were it to be furnished with a report by the CCMA as envisaged by section 66(5). But that report is not yet available. I shall return to that aspect of the relief sought shortly.
Proportionality
[51] Is the nature and extent of the secondary strike reasonable in relation to the possible direct or indirect effect on primary employers?
[52] The nature and extent of the secondary strike will be such that it will have a major impact on Transnet. Is that reasonable in relation to the possible direct or indirect effect on the primary employers?
[53] SATAWU alleges in its answering affidavit that there is a link between TFR and Transnet insofar as customers may leave containers on a road vehicle trailer for collection by TFR. How this link may impact on the business of the primary employers, is not clear. The potential harm caused to Transnet appears to me to be disproportionate to the very slight possible effect the strike may have on the primary employers.
[54] The same holds true for TPT. At best, SATAWU may establish that employees in the road freight industry deliver goods to TPT for off-loading. But in the context of a primary strike having the result that those trucks are not running – except, perhaps, for a few that are being driven by replacement workers at the risk of life and limb – it is difficult to see how a strike at TPT could have an effect on the primary employers in the road freight industry. Even if it did, the nature and extent of the secondary strike would not be reasonable in relation to the possible direct or indirect effect on the primary employers.
[55] It is difficult, though, to ascertain the possible effect on the primary employers, and the relationship between the different employers, on the basis of affidavits drawn in haste. That brings me to the next point to be considered.
Section 66(4) report
[56] To reiterate – the LRA envisages a specific role for the CCMA in disputes of this nature. The following subsections of s 66 are relevant:
“(4) Any person who is a party to proceedings in terms of subsection (3), or the Labour Court, may request the Commission to conduct an urgent investigation to assist the Court to determine whether the requirements of subsection (2) (c) have been met.
(5) On receipt of a request made in terms of subsection (4), the Commission must appoint a suitably qualified person to conduct the investigation, and then submit, as soon as possible, a report to the Labour Court.
(6) The Labour Court must take account of the Commission’s report in terms of subsection (5) before making an order.”
[57] In this case, the applicant has requested the CCMA to conduct an investigation in terms of s 66(4). The CCMA has identified suitably qualified persons to conduct the investigation, but has not yet appointed them. It is envisaged that such an appointment can be made, the investigation carried out, and a report furnished to the Court within seven days.
[58] Seady & Thompson have noted that the practicalities associated with trying to conduct a meaningful investigation under urgent circumstances makes the CCMA’s job and an enviable one, and places a question mark over the utility of the exercise contemplated by section 66 (4).
[59] In terms of section 66 (6), though, this court must take account of the CCMA’s report before making an order. At the moment, that the report has not yet been submitted and indeed, a suitably qualified person has not yet been appointed to conduct the investigation in terms of section 66 (5). In my view, the most practical way of enabling the court to consider the report to be furnished by the CCMA in terms of section 66 (5) is to adopt a process similar to that adopted by the court in Sealy of South Africa (Pty) Ltd & others v PPWAWU . Although that the matter was heard as an ex parte application and the matter before me is opposed, with both parties having filed substantial pleadings and heads of argument, I intend to consider whether the applicant has made out a case for interim relief; and if so, to issue a rule nisi pending the furnishing of a report contemplated in section 66 (5). That report must be in place before the court on the return day in terms of section 66 (6).
Has the applicant satisfied the requirements for urgent interim relief?
[60] Against this background, the court must finally consider whether the applicant has satisfied the requirements for an urgent interdict outlined earlier.
A prima facie right?
[61] On the evidence currently before the Court, and without the benefit of a report from the CCMA, I am satisfied that the applicant has made out at least a prima facie case, though open to some doubt, to satisfy the requirements for interim relief.
[62] The nature and extent of the envisaged strike action is such that it will have a major effect on Transnet and on the economy of the country. It does not appear to be reasonable in relation to the slight possible effect it may have on the primary employers. It is disproportionate to the goal of the strike action, i.e. to force the primary employers to accept SATAWU’s demands.
[63] It may be that, once an investigation has been conducted in terms of section 66(5), a clearer picture emerges and that the applicant may not be able to establish a clear right for the Court to issue a final order in terms of s 66(5). At this stage, though, the applicant has established a prima facie right for the interim relief I intend to grant.
Apprehension of irreparable harm?
[64] The applicant faces a clear apprehension of irreparable harm. Economic loss is envisaged by any strike; but in this case, it is not proportionate or reasonable in relation to the possible effect on the primary employers.
[65] There is also the real apprehension of harm in the form of violent conduct, leading not only to damage to property, but also physical harm – or even death – for non-strikers. In the documentation attached to SATAWU’s answering affidavit, 16 incidents of violence are recorded in one municipality in three days. It appears from the documents attached by the union that stones and petrol bombs have been thrown and vehicles set alight during the primary strike. Although it disavows any collusion with the perpetrators and it has in fact condemned the violence, the union seems incapable of preventing it.
Absence of alternative remedy
[66] The applicant has no other remedy other than the one prescribed by section 66(3) of the LRA, i.e. the procedure that it has followed.
Balance of convenience
[67] The balance of convenience favours the applicant. Should the strike proceed at this stage, before the Court has had the benefit of the report envisaged by s 66(6), it will lead to major disruption, losses and possible physical harm to the applicant. The members of SATAWU employed by the applicant, on the other hand, will suffer no prejudice. They will carry on with their work and be paid for their labour. They do not stand to gain from the secondary strike; on the contrary, they would only suffer the loss of four days’ wages, were they allowed to strike in solidarity with their comrades in the road freight industry at this stage. SATAWU and its members in that industry suffer no immediate prejudice; and should the Court decide in their favour on the return day, the secondary strike can still proceed.
Order
[68] Having considered all of these factors, I make the following order:
68.1 A rule nisi is issued calling on the respondent (SATAWU) to show cause on 26 October 2012 at 10h00 why the following orders should not be made final:
68.1.1 declaring that the secondary strike by the respondent’s members employed by the applicant at Transnet Port Terminals and Transnet Freight Rail due to commence on 16 October 2012 is in contravention of section 66(2)(c) of the LRA;
68.1.2 directing the respondent to withdraw its secondary strike notice addressed to the applicant and dated 8 October 2012;
68.1.3 interdicting and restraining the respondent from calling for a secondary strike by applicant employees at Transnet Port Terminals and Transnet Freight Rail pursuant to the notice issued on 8 October 2012; and
68.1.4 directing the respondent to notify its members employed at Transnet Port Terminals and Transnet Freight Rail not to embark on a secondary strike pursuant to its strike notice issued on 8 October 2012.
68.2 The orders in subparagraphs 1 to 4 shall operate as an interim interdict bending the return date.
68.3 The CCMA is directed to furnish its report in terms of section 66 (5) of the LRA to this court and to the parties by no later than 19 October 2012.
68.4 The parties are directed to deliver any supplementary affidavits or further submissions pursuant to the report of the CCMA by no later than 24 October 2012.
68.5 The question of costs is to be decided on the return day.