Johannesburg - The Association of Mineworkers and Construction Union (Amcu) wants the Constituional Court to pronounce that solidarity strikes are legally protected in the country.
Formally referred to as secondary strikes, these are a form of industrial action by workers in support of a strike initiated by fellow union members in a separate company.
In Amcu’s case, protected secondary strikes would enable the union to bring the gold, platinum and coal mines to their knees if one employer failed to meet workers’ demands.
Amcu’s resolve to push for protection of solidarity emanated from a failed bid to achieve this in 2019.
As its protected strike at Sibanye-Stillwater that year entered a fourth month, Amcu issued secondary strike notices against a number of mining groups.
These included AngloGold Ashanti, Harmony, Lonmin, Glencore Operations, Marula Platinum, Impala Platinum and Rustenburg Platinum Mines.
Amcu’s bid was thwarted by the Labour Court, which ruled that secondary strikes were unprotected.
The Labour Appeal Court (LAC) also dealt Amcu’s appeal application a blow, ruling the case had become moot because there was no longer a strike.
Believing that both the Labour Court and LAC erred, Amcu now sought to appeal the two judgments at the Constitutional Court.
“The LAC was, with respect, wrong in finding that the appeal was moot because the strike was over,” said Amcu’s papers, adding that the conclusion of a strike did not mean legal issues were addressed.
At issue for Amcu and the mining groups was whether secondary strikes were protected under section 66 of the Labour Relations Act.
The union said the Labour Court and LAC’s interpretation of the section were wrong.
“It is the applicants’ (Amcu and members) main contention that the current jurisprudence of the Labour Court and LAC regarding the interpretation of section 66 … conflicts with the express language of the section and unjustifiably curtails the right to strike, which includes secondary strikes, conferred on all workers by section 23 of the Constitution,” said Amcu.
Several mines were opposing Amcu’s application.
Sandra Labuschagne, a manager responsible for employment law services at Sibanye Gold, submitted in court papers that Amcu’s interpretation was “fundamentally wrong”.
There was nothing that one company could do to resolve labour disputes in another company, she said.
“If (Amcu's) proposition was allowed to stand, it would leave a secondary employer without any protection available to it,” said Labuschagne.
“This is so because the secondary employer cannot accede to the demands of the primary strikers in order to settle the dispute, nor is it a participant in the power play between the primary employer and its employees.”
David Thatcher, replying on behalf of six mines, said it was a wrong interpretation that legislation meant secondary strikes can happen against companies not linked to the one facing the primary strike. “This makes it clear that a secondary strike takes place visà-vis a single employer (rather than multiple employers).”
The Concourt will hear the matter next week.
The Star