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

• Jurisdiction: South Africa
• DOI: 10.17159/2225-7160/2023/v57a4
• Author: ME Manamela
• Pages: 46-57
• Date: 01 June 2024
• Published date: 01 June 2024
• Published By: University of Pretoria

46 2024 De Jure Law Journal

Secondary strikes and their proportional impact

on both the primary and secondary employer

1 Introduction

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

How to cite: Manamela ‘Secondary strikes and their proportional impact on both the primary and secondary

employer’ 2024 De Jure Law Journal 46-57

http://dx.doi.org/10.17159/2225-7160/2023/v57a4