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REPORTABLE

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: J1320/07

In the matter between:

SALGA Applicant

and

SAMWU Respondent

____________________________________________________________

JUDGMENT

A VAN NIEKERK AJ

1. This application has been brought as a matter of urgency. The Applicant, to which I shall refer as SALGA, seeks an interdict preventing members of the Respondents, to which I shall refer as SAMWU, from participating in secondary strike action that is intended to commence tomorrow, Wednesday, 13 June 2007.

2. SALGA is an employers’ organisation and brings the application on its own behalf and on behalf of its member municipalities. SALGA initially sought a rule nisi with interim interdictory relief. The parties are however agreed that since the merits of the case have been ventilated fully, I should make a final order.

3. The strike that forms the subject of these proceedings is set to commence in less than 12 hours. This judgment is delivered ex tempore and in these circumstances, I must reserve the right to amplify, if necessary, the reasons for the order that I make this afternoon.

4. On 1 June 2007, SAMWU addressed a letter to SALGA stating that it was considering engaging in secondary industrial action in support of a wage demand made by public servants. This intention was affirmed on 6 June 2007 when SAMWU gave notice in terms of section 66(2) of the LRA that its members would “embark on secondary strike action in support of the public servan’’s wage demands as from 12:01 midnight on Wednesday, 13 June 2007.”

5. It was argued by Mr Van der Riet SC, who appeared for SAMWU, that the proposed strike was in fact a primary strike since SAMWU’s members, like those employees engaged in the national and provincial government and currently participating in the primary strike, are employed by the State. Mr Sutherland SC, who appeared for SALGA, submitted that there was no factual basis for that proposition and that SAMWU had in any event, at least until the filing of its answering affidavit, considered and dealt with the proposed industrial action as a secondary strike.

6. I do not intend to decide whether municipal employees are State employees and therefore entitled to participate in a primary strike. In passing however, it seems to me that there is merit in Mr Sutherland’s submission that employees engaged by a municipal authority are directly employed by that authority and not by the State. I intend to deal with this matter on the basis that it was initiated by SAMWU i.e. as a secondary strike.

7. The notice of intention to strike makes no reference to the nature and extent of the proposed strike, nor does it make any reference to essential service workers. These matters were however the subject of correspondence between the parties and were dealt with in the answering affidavit filed on SAMWU’s behalf. The affidavit records that the proposed strike by SAMWU members is a one-day strike scheduled to take place on 13 June 2007. It also states that the notice issued on 6 June 2007 was not intended to include those SAMWU members who are engaged in essential services. The affidavit states further that SAMWU has not and does not intend to call on essential service workers to participate in the strike (see paragraph 6 of the answering affidavit). These averments were confirmed by counsel for SAMWU when this matter was called.

8. The application proceeded then on the basis that the proposed industrial action is limited to a one-day strike on Wednesday, 13 June 2007, and that SAMWU does not intend to call on its members engaged in essential services to participate in the strike.

9. The Labour Relations Act permits secondary strikes but, in common with all forms of industrial action, the exercise of the right is not unlimited. The formulation of section 66(2) of the Act is such that participation in secondary strikes is prohibited unless all three conditions established by sub-paragraphs (a), (b) and (c) are met. These are:

1. the primary strike must be protected;

2. 7 days’ notice must have been given to the secondary employer; and

3. the nature and extent of the secondary strike must be reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.

10. The first two requirements are procedural, and it is common cause in these proceedings that they have been satisfied. The third requirement is substantive and is at issue in these proceedings. This “reasonable requirement” is what lends secondary strikes their legitimacy. Without it, secondary strikes would become as John Grogan suggests, “mindless exercises of worker solidarity for the sake of nothing but worker solidarity” (see Grogan ‘Collective Labour Law’ Juta 2007).

11. SALGA alleges boldly and blandly in its founding affidavit that the withdrawal of labour in the local authority sector will have no direct or indirect effect on the business of national government. The deponent to the affidavit asserts that the effect of the proposed strike “will do no more than grossly inconvenience the members of the public”.

12. Leaving aside for the moment the thought that inconvenience to the employer and third parties is integral to the purpose of any strike, the only substantive averment raised by SALGA in the papers in relation to the reasonableness requirement is that the business of national government “is not dependent in any way on the functions carried out by local government” and further that “the source of the authority of local government is the constitution and not the national government” (see page 11 of the founding affidavit).

12. This argument, which appears to require only the existence of some nexus between the primary and secondary employer based on a relationship of dependence between then, misconstrues the test that is established by section 66(2)(c). To the extent that SALGA’s submission contemplates a requirement that there be a particular linkage between the primary and secondary employers (the ‘ally’ or ‘associated employer’ doctrine adopted in some jurisdictions), it ignores the emphasis placed by section 66 on the effect the secondary strike has on the business of the primary employer. This is not to say that some relationship or nexus between the primary and secondary employer is not a requirement, indeed it is difficult to conceive how a secondary strike could have a direct or indirect effect on the primary employer’s business without some relationship of sorts between the two employers. But it is not as SALGA’s averment implies, a determinative factor whenever the nature of that relationship is one of dependency. The approach adopted by section 66(2) is to require the harm caused to the secondary employer to be proportional to its impact or likely impact on the business of the primary employer.

12. To the extent that recent decisions by this Court, for example, Billiton Aluminium South Africa v National Union of Metal Workers of SA (2001) 22 ILJ 2434 (LC) and Hextex and Others v South African Clothing and Textile Workers Union and Others (2002) 23 ILJ 2267 (LC), respectively discount the effect of a secondary strike on the secondary employer as a relevant factor, and reject a proportionality requirement as fundamental to the application of section 66(2), I respectfully disagree with that approach. An assessment of the nature and extent of the secondary strike clearly contemplates that its impact on the business of the secondary employer is a fundamental factor, and that an assessment of that impact is required.

12. Further, the use of the words “reasonable in relation to” in section 66(2)(c), clearly import a proportionality assessment, not unlike the use of the term “reasonable” in section 36 of the Constitution in relation to the proportionality assessment of limitations on constitutional rights (see Cheadle ‘Strikes & Lockouts’ 2003 Current Labour Law at 53).

12. 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.

12. I deal first with the nature and extent of the proposed secondary action. The strike that SAMWU has called is neither continuous nor intermittent - it is limited to a single day. While the impact of a withdrawal of labour for a day by all of SAMWU’s members not engaged in essential services will obviously be felt by those municipalities affiliated to SALGA and also by those members of the public who will rely on municipal authorities to provide particular services tomorrow, the strike is intended to be short and sharp. Non-essential municipal services not provided for a day, unlike the value of some services provided by private sector employers, are not generally forever lost, never to be recovered. What is at stake is the convenience of the public whom the municipal authorities serve as well as the disruption and economic loss that will be suffered. But, as I have noted above, the convenience of third parties, the disruption of services and economic loss are not factors that rank highly when considering the legitimacy of industrial action. Rather, these are inevitable consequences which underpin the purpose of industrial action in any democratic society.

12. Turning then to the possible effect that the proposed secondary action may have on the business of the primary employer, section 66(2) requires that the Court consider both the possible direct and indirect impact that the secondary action may have on that business. It seems to me that underlying this requirement is the notion that the secondary action must have some impact on the bargaining process underway between the employer and the trade unions engaged in the primary strike. I do not mean to suggest that the secondary employer must necessarily and consequent on secondary strike action be capable of immediately and directly placing pressure on the primary employer, but since the bargaining process turns on the exercise of power, there ought to be some sense at least in which the secondary strike will affect the economic power or position of the primary employer.

12. In the present instance, and without invoking the ‘ally’ or ‘associated employer’ approaches that I refer to above, the system of co-operative government established by the Constitution is a relevant consideration in determining the possible direct or indirect effect of the proposed secondary strike on the business of national and provincial government. The imperative of co-operation between the three tiers of government is entrenched in a number of respects. For example (and there are many other examples), section 53(b) of the Constitution requires municipalities to participate in national and provincial development programmes. Section 154 requires national government to support and strengthen the capacity of municipalities to manage their own affairs and to perform their functions. Section 3 of the Local Government Municipal Systems Act obliges municipalities and the national and provincial spheres of government to exercise their executive and legislative authority within the envisaged constitutional system of co-operative government.

12. Government at all levels is in the business of providing services. It is evident from the above provisions that in the constitutional framework within which government is established, municipalities play a role in the activities of national and provincial departments and that the municipal sector provides operational and administrative services to the national and provincial spheres of government.

12. Given the integrated, co-ordinated and co-operative structure of government as a whole, it is entirely possible that the withdrawal of municipal services will have at least an indirect, if not a direct effect on the business of those higher levels of government engaged in the primary strike, and will thus place pressure on them in the national bargaining process currently underway.

12. Mr Sutherland submitted that no factual basis had been made out on the papers to substantiate an averment to the effect that the proposed strike would have any effect on the business of national and provincial government. The test established by section 66(2)(c) is whether there is a ‘possible’ as opposed to an actual direct or indirect effect. The fact that the primary and secondary employer in this instance are components of government and that the relationship between them is one of integration, co-ordination and co-operation, both establishes and satisfies the reasonableness requirement.

12. In my view therefore, SAMWU has succeeded in establishing compliance with the prerequisite that the nature and extent of the secondary strike that it has called on Wednesday, 13 June 2007, is reasonable in relation to its effect on the business of national government.

12. The Applicant has failed to establish a clear right to the relief that it seeks.

12. I accordingly make the following order:

1. The one-day secondary strike called by SAMWU in the municipal sector on 13 June 2007 is a protected strike.

2. Members of SAMWU who are not engaged in essential services may participate in the strike and in doing so, will enjoy the protections conferred by section 67 of the LRA.

3. The Applicant is to pay the costs of this application.

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ANDRÉ VAN NIEKERK,

Acting Judge of the Labour Court

Date of hearing: 12 June 2007

Date of judgment: 12 June 2007

Applicant’s Counsel: Advocate R Sutherland SC

Attorneys for Applicant: Werksmans Inc.

Counsel for Respondent: Advocate H van der Riet SC

Attorneys for Respondent: Cheadle Thompson & Haysom Inc.

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