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.