Rapport définitif - Rapport No. 404, Octobre 2023

1. 84. The complaint is contained in a communication dated 7 March 2022 from the Association of Mineworkers and Construction Union (AMCU).
2. 85. The Government provided its observations in a communication dated 29 April 2023.
3. 86. South Africa has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 87. In its communication dated 7 March 2022, the AMCU alleges that its call for holding secondary strikes in ten mining companies between 28,29 February and 7 March 2019 was opposed by those companies through separate urgent applications pursuant to section 66(3) of the Labour Relations Act (LRA), requesting the Labour Court to interdict the secondary strikes. According to the AMCU, the secondary strikes were called in support of a strike (the primary strike) that was ongoing at Sibanye Gold Limited t/a Sibanye Stillwater (hereinafter, company (a)). On 15 March 2019, the Labour Court declared the secondary strikes to be unprotected and interdicted those from proceeding. This judgment was later confirmed by the Constitutional Court in AMCU v. Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others (2021).
2. 88. The complainant alleges that company (a), which operates in gold and platinum production, is the corporate behemoth of the mining industry. Considering that on 30 June 2018 collective agreements governing wages and conditions of employment at several gold producers including company (a) were due to lapse, the AMCU submitted its demands relating to wages and other conditions of employment on 4 June 2018. Negotiations concerning wages and terms and conditions of employment for the period between 1 July 2018 and 30 June 2021 started on 11 July under the auspices of the Minerals Council South Africa (the Minerals Council). Since the parties did not reach agreement, the AMCU referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). On 26 September 2018, the CCMA issued a certificate of outcome confirming that the dispute remained unresolved and that the AMCU and its members could go on strike.
3. 89. The complainant further alleges that following a collective bargaining process on 14 November 2018, company (a) concluded a wage agreement entitled “the 2018-2021 Review of Wages and other Conditions of Employment” with three other unions, namely the National Union of Mineworkers (NUM), Solidarity and UASA, with the specific aim of excluding the AMCU. Subsequently, AMCU issued the company a strike notice and commenced the primary strike on 21 November. This strike persisted until April 2019. A one-day secondary strike called by the AMCU took place within the platinum operations of company (a) on 22 January 2019.
4. 90. The complainant states that on 20 and 21 February 2019 it issued notices of secondary strike action to the following mining companies: Anglogold Ashanti Limited; Lonmin Platinum (which at the time comprised Western Platinum and Eastern Platinum Limited); Rustenburg Platinum Limited, Harmony Gold Mining Company Limited; Village Main Reef (Pty) Ltd, Tau Lekoa (Pty) Ltd and Kopanang (Pty) Ltd t/a Village Main Reef; Northam Platinum Limited; Marula Platinum (Pty) Ltd; Impala Platinum Limited; Glencore Operations SA (Pty) Ltd and Bushveld Vametco Alloys (Pty) Ltd (companies b-k). The complainant states that all these companies are party to the Minerals Council.
5. 91. The AMCU further alleges that when it sought to call a secondary strike in these companies, company (a) “had already started firing its array of collective bargaining weapons” and on 13 December 2018 had concluded a collective agreement with NUM, Solidarity and UASA, which purported to be extended to the AMCU and its members pursuant to section 23(1)(d) of the LRA. The complainant states that in reaction to all measures taken by company (a) to put it under pressure to capitulate, it had no other means to exercise counter-pressure but to embark on a secondary strike action.
6. 92. The complainant cites section 66(2) of the LRA, which provides the requirements for a secondary strike to be legally protected, including: (a) lawfulness of the primary strike; (b) reception by the secondary employer of a written notice at least seven days before the commencement of the secondary strike; and (c) the requirement 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”. According to the AMCU, companies (b-k) all admitted that requirements (a) and (b) were complied with but submitted in their urgent applications that the secondary strike is not reasonable in terms of requirement (c) and therefore should not be allowed.
7. 93. The complainant states that the Labour Court judgment provided that although the South African Constitution does not distinguish between primary and secondary strikes, the LRA subjects the latter to additional restraints and that the AMCU had failed to comply with the requirement embodied in section 66(2)(c) of the LRA. According to the complainant the Labour Court relied on the precedent in considering that the harm or economic loss caused to the secondary employer was materially relevant to the section 66(2)(c) inquiry. The complainant further states that in this case, the Labour Court additionally held that in terms of section 66(2)(c), it was not permissible to group together a collection of secondary employers in a specific industry and assess the combined effect on the whole industry. To do so would deprive each individual employer of the protection afforded to them by the LRA. From this standpoint, the Labour Court concluded that the case called for individual assessment of the case of each secondary employer.
8. 94. The complainant further states that the Labour Court rejected the AMCU’s argument that the seven-day secondary strike will have limited financial impact on companies (b-k) and held that some of those companies were already in a financially precarious state and further losses would deter investment and create the risk of further retrenchments. The judgment provided that although economic harm is not a factor in assessing the reasonableness of primary strikes, in the case of secondary strikes it ranks highly in consideration of the proportionality of the strike impact. According to the complainant, the Labour Court also examined the connection between the primary employer and the secondary employers, namely company (a) and companies (b-k) and found the AMCU’s claim that the latter could pressurize the former to move closer to the union’s demands unconvincing, as their shared membership in the Minerals Council could not bind members to accept any particular position or compel them to bargain centrally. The Labour Court further held that the proposed secondary strike would not have any effect on company (a), or affect bargaining between it and the AMCU, while it would disrupt the operation of company (a)’s competitors, damage the national economy and result in possible job losses. Therefore, the Labour Court concluded that the proposed secondary strike did not satisfy the proportionality test and would be unreasonable. The complainant adds that companies (b-k) had also expressed the fear that the secondary strike would be accompanied by violence, fear that the Court considered prima facie justified.
9. 95. The AMCU states that it appealed against the Labour Court’s ruling but that the appeal was dismissed on the grounds that with the end of the primary strike there was no longer a live dispute between the parties, and therefore the issues were moot. The complainant further appealed to the Constitutional Court, which admitted the appeal but found by majority that the secondary strike was unprotected and ruled in favour of companies (b-k) on 12 November 2021. The complainant sent a copy of this ruling as an annex to its complaint.
10. 96. In support of its complaint before the Committee, the AMCU affirms that a secondary strike is an expression of worker solidarity and an exercise of their freedom of association. It recalls that South Africa has ratified Conventions Nos 87 and 98 and that the LRA expressly requires courts to apply the law in a manner consistent with ILO Conventions. The complainant affirms that the ILO’s position on secondary strikes is that they should be subject only to the requirement that the primary strike be lawful. Considering that the primary strike at company (a) was protected, the complainant alleges that in holding that the secondary strike was not protected, the judgment of the Constitutional Court breached ILO standards set for the protection of secondary strikes and thus undermined the workers’ freedom of association. The complainant also cites the dissent of one of the members of the Constitutional Court which upholds that the purposive meaning given in section 66(2) must ensure compliance with South Africa’s obligations as a member of the ILO and that therefore, in view of the lawfulness of the original strike, the lawfulness of the secondary strikes should have been recognized.
11. 97. The complainant finally alleges that “section 66(2)(c) of the LRA unsuitably limits the rights of employees to freedom of association and is in breach of ILO standards” and requests the Committee to recommend to the Government of South Africa “to amend section 66(2)(c) of the LRA to provide that a secondary strike is protected if a primary strike is protected”, or to make any additional or alternative recommendations in this regard. The AMCU adds that such an amendment to the law will not leave the secondary employer unprotected, because in the event of a secondary strike their ability to protect themselves through the following means will remain unaffected: (i) implementation of the “no work, no pay” rule for the period of the secondary strike; (ii) initiation of a lockout; (iii) putting in place picketing rules; (iv) interdicting violence in relation to the strike; (v) seeking compensation for any loss attributable to an unlawful strike or conduct; and (vi) fair dismissals in accordance with the law for reasons related to the employee’s conduct during the strike or for a reason based on the employer’s operational requirements.

B. The Government’s reply

1. 98. In its communication of 29 April 2023, the Government rejects the complaint and indicates that empowering courts to conduct a proportionality assessment is entirely consistent with the relevant ILO Conventions. According to the Government, the LRA has adopted a sensible approach to secondary strikes, which balances various competing interests and ultimately leaves it to independent and impartial courts to develop a body of jurisprudence regarding the meaning and content of what is “reasonable” in this regard considering the particular facts of each case. The Government provides an account of the facts of the case and the proceedings before domestic courts which concurs with the account provided by the complainant. The Government puts emphasis on certain passages of the Constitutional Court judgment, where the Court refers to Conventions Nos 87 and 98 and notes that while neither Convention expressly confers a right to strike, Articles 3 and 10 of Convention No. 87 inspire both the Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR) to progressively develop principles on the right to strike. The Constitutional Court majority considers that the CEACR has acknowledged the competing interests implicated during the strikes.
2. 99. The Government further cites the Constitutional Court majority judgment providing that in relation to secondary strikes, although both the CEACR and the CFA have considered that a general prohibition could lead to abuse, “this is not to suggest that sympathy strikes should be afforded utterly unfettered protection. The CEACR recognizes the importance of sympathy strikes but emphasizes that the justification for recourse to this type of strike should be specified. Typical of international standards, the ILO recommends a minimum requirement for sympathy strikes”. The Government submits that the Court “correctly” held that “the ILO sets a minimum requirement” and that “the ILO prescribes neither the procedural prerequisites for embarking on secondary strikes or any other substantive requirements. Those are matters for sovereign states to determine in national legislation. Section 66(2)(c) meets the ILO’s minimum requirement that the primary strike must be lawful but adds procedural and other requirements consistent with the negotiations and the Constitution”. The Government also refers to the dissenting judgment which held that section 66(2)(c) should be interpreted restrictively so as to have the least intrusion into the right to strike; that the impact that the secondary strike might have on the business of secondary employer is of no relevance to the bargaining process between primary employer and its workers and section 66(2)(c) requires only that the secondary strike be reasonable in relation to the business of the primary employer.
3. 100. The Government provides a detailed account of the guarantees of labour rights, in particular the right to strike, in the national constitution (section 23), legislation (sections 64-66 LRA) and case-law, including the historical background of transition from apartheid to democracy. In this context, the Government refers also to the 1992 ILO Fact-Finding and Conciliation Commission (FFCC), which completed its report amidst the process of negotiation and transition to a democratic system. The Government indicates that in 1994, a Task Team was appointed to draft a Labour Relations Bill that would give effect to the commitment by the Government to ILO Conventions Nos 87, 98 and 111, and the findings of the FFCC, comply with the Constitution, and contain a recognition of fundamental organizational rights of trade unions. In relation to industrial action, the Task Team identified various deficiencies in the then-existing legislation, including its failure to give effect to the right to strike and recourse to lock-out; complicated and technical pre-strike procedures; the prohibition of socio-economic strikes and the ready availability of interdicts and damage claims.
4. 101. The Government indicates that the LRA gives particularly generous protection to the right to strike, including secondary strikes. The Constitutional Court has confirmed that the right to strike is a right “based on the recognition of disparities in the social and economic power held by employers and employees”. The law draws on distinct conceptions of the right, as an individual civil liberty, as an aspect of associational freedom, and as a right to bargain collectively. It thus protects strikes when certain substantive and procedural conditions related to the collective bargaining process have been met – a strike must be preceded by conciliation, deadlock and notice to the employer – but also permits protest action, that is, the right of workers to withhold their labour to promote or defend their broader socio-economic interests. The Government further indicates that the right to strike is not absolute and may be limited under section 36 of the Constitution provided the limitation is reasonable and justified. The LRA seeks to protect and balance the interests of both employees and employers, while protecting the integrity of the collective bargaining process. The Government underlines that one respect in which it is plainly justifiable to place reasonable limitations on the right to strike is where they involve violence or the threat thereof. A protected strike may lose its protection when strike violence displaces functional and orderly collective bargaining.
5. 102. The Government further refers to several Constitutional Court rulings to demonstrate that the Court has adopted a rights-sensitive approach to strike action and showed a keen awareness of South Africa’s international obligations under ILO Conventions. These references include:
   • South African National Defence Union v. Minister of Defence, in which the Court struck down as unconstitutional the provisions of the Defence Act which prohibited members of the armed forces from joining trade unions and participating in acts of “public protest” widely defined.
   • National Union of Metalworkers of South Africa (NUMSA) v. Bader Bop (Pty) Ltd, in which the question before the Court was whether the LRA precluded non-representative unions from the exercise of organizational rights, either through agreement with the employer, or through industrial action. The Court had specific regard to Conventions Nos 87 and 98 and found that a reading of the LRA which permitted minority unions the right to strike over the issue of shop steward recognition would be more in accordance with the principles of freedom of association entrenched in the ILO Conventions. The Court concluded that the LRA was capable of a broader interpretation, which did not limit fundamental rights, and that such an interpretation had to be preferred.
   • South African Transport and Allied Workers Union (SATAWU) v. Moloto, in which the majority of the Court held that to require more information in the strike notice than the time of its commencement would run counter to the underlying purpose of the right to strike in the Constitution, namely, to level the playing fields of economic and social power already generally tilted in favour of employers.
   • NUMSA obo Nganezi v. Dunlop Mixing and Technical Services (Pty) Ltd, which concerned a protected strike that had turned violent, following which the employer summarily dismissed the striking workers relying on misconduct, “derivative misconduct” (in respect of those who were present during the violence and failed to come forward), and common purpose. The Court considered that to impose a unilateral obligation on employees to disclose information about the misconduct of co-employees in a protected strike would undermine the collective bargaining power of workers and a balance had to be struck between the reciprocal duties of good faith expected of both the employer and the employee. The Court concluded that to dismiss all workers without individual identification was not justified.
6. 103. Regarding the exercise of the right to strike in practice, the Government indicates that this right is regularly utilized by workers in South Africa as a means by which to seek better wages and conditions, as well as in respect of disciplinary questions and other grievances, retrenchment, refusal to bargain, trade union recognition and other matters. The Government further provides data as to the number of strikes and working days lost according to the principal cause of dispute between 2016–20. According to this data, during this period, one secondary action has taken place (in 2016), which entailed the loss of 1,385 working days; however, the data also indicates that in 2019 and 2020, respectively 1,250 and 33,068 working days were lost due to secondary action. The number of various types of work stoppages during this period is summarized in the table below:

   • Period	In-company strikes	Picketing	Secondary action	Stay-away/ protest	Multi-employer strikes	Lock-out
     2016–20	415	9	1	92	44	132

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7. 104. Concerning the merits of the complaint, the Government submits that: (i) section 66(2)(c) of the LRA does not give rise to any breach of the Conventions; (ii) the previous point is fortified by the need to take into account national circumstances and to afford some margin of appreciation to national jurisdictions in the precise manner in which they regulate secondary strikes; (iii) while previous Committee reports have cautioned against a “general prohibition” on secondary strikes, read in context, they have not purported to preclude national jurisdictions from imposing procedural and substantive requirements to regulate secondary strikes and; (iv) while the AMCU’s failure to exhaust domestic remedies is not an absolute bar, it is a further reason to dismiss the complaint.
8. 105. The Government emphasizes that although Conventions Nos 87 and 98 do not expressly enshrine a right to strike, the Government accepts that the right to strike is – as the ILO supervisory bodies have held for decades – an intrinsic corollary of the right to organize protected by the Conventions and it is no part of the Government’s case that workers do not have a nationally and internationally recognized general right to strike. The Government considers that the question in this case is whether South Africa is entitled to regulate the right to engage in secondary strikes by empowering national courts to determine, on a case-by-case basis, whether the harm caused by the secondary strikes to the secondary employer is proportional to the impact on the business of the primary employer.
9. 106. In support of its submission that section 66(2)(c) of the LRA does not breach the Conventions, the Government submits five arguments:
   • (i) Section 66(2)(c) does not entail a general prohibition of secondary strikes. The notions of proportionality and reasonableness invite judicial supervision and require a case-by-case assessment by the Labour Court, considering various factors including the duration and form of the strike, the number of employees involved, their membership of trade unions, their conduct and the sectors in which primary and secondary strikes occur. Over time, a body of jurisprudence defining the precise contours of lawful secondary strikes will develop. The approach favoured by the complainant would disempower the courts from considering any of the mentioned factors.
   • (ii) Section 66(2)(c) sets an extremely low bar for a lawful secondary strike. The words “possible” and “indirect” mean that the secondary strike must merely be “capable of having an effect” on the primary employer. There would be little logic in requiring national jurisdictions to recognize secondary strikes incapable of having any effect on the primary employer.
   • (iii) An employer seeking to interdict a secondary strike bears the onus of showing that the strike is unreasonable or not proportional. This affords further protection to unions seeking to engage in secondary strikes.
   • (iv) It would be unjust and inequitable to permit secondary strikes to occur routinely, without giving any consideration to their harmful effect on the secondary employer. Secondary employers have no control over the collective bargaining process related to the primary strike and are not able to bring that labour dispute to an end. They also do not have the same procedural safeguards as primary employers. Proportionality and reasonableness are shields to safeguard secondary employers and to preserve the equilibrium that section 66(2)(c) seeks to establish.
   • (v) The procedural requirements for a primary strike – conciliation, deadlock and notice to the employer – can take months. But a secondary strike can occur on nothing but a seven days’ notice. As the majority of the Constitutional Court explained, “cumulatively, the absence of prior engagement, the brevity of the notice and the fact that the secondary employer and its employees have no interest in the outcome of the primary strike distinguish the secondary employer from the primary employer”. In this context, it would be absurd for the lawfulness of the secondary strike to depend solely on the lawfulness of the primary strike without reference to any considerations of proportionality.
10. 107. The Government adds that its submission concerning the fairness and equity of the balance between competing interests embodied in section 66(2)(c) – which according to the Government does not infringe the Conventions – is fortified by the need for the Committee to take account of national circumstances and to afford a degree of flexibility to Member States to design legislative and other measures that protect the right to strike in the manner most appropriate to national conditions. The Government refers in this regard to the doctrine of “margin of appreciation” developed by the European Court of Human Rights and states that Convention No. 98 recognizes the need to take into account national circumstances in its Articles 3 and 4, where it refers to machinery and measures “appropriate to national conditions”.
11. 108. The Government states that the LRA has regulated secondary strikes in a manner that seeks to achieve an equitable balance between different interest groups, while recognizing that the right to strike is an important counterweight to the power imbalance between workers and employers. The law therefore requires that the secondary strike be in some way related to the broader ambition of collective bargaining and ensures that no disproportionate harm is caused to secondary employers. The Government further states that ILO Member States regulate secondary strikes in a range of different ways and there is no consensus as to how they ought to be regulated. The Government cites excerpts of the Constitutional Court judgment, where the Court holds that countries that permit secondary strikes regulate them to a greater degree than primary strikes and something more than the lawfulness of the original strike is anticipated. Secondary strikes distinguish themselves by virtue of their relationship with the primary strike. The judgment holds that in countries like Spain, Italy and France the requirement ranges from “a professional or occupational interest” to “a sufficient interest” and “in all three jurisdictions the courts have played a key role in giving content to the definition, at times liberalizing and at other times limiting it”.
12. 109. The Government “suggests” that in circumstances where some countries prohibit secondary strikes completely and reputable courts have upheld such prohibitions, and other countries permit secondary strikes subject to varying degrees of regulation and limitation, it would be inappropriate to lay down a one-size-fits-all rule that a secondary strike must be allowed whenever the primary strike is lawful. According to the Government, while the ILO may lay down a general principle that there should be no general prohibition on secondary strikes and provide, as a “minimum” requirement, that the primary strike must be lawful, beyond this it should be left to national jurisdictions to determine the precise contours of the regulation of secondary strikes.
13. 110. The Government quotes excerpts of General Surveys of the CEACR and several past decisions of the CFA, which it reads as demonstrating that the Committees have not adopted an absolutist position in relation to the protection of secondary strikes, and that a national regime that allows for the judicial assessment of the lawfulness of a secondary strike based on considerations of proportionality is entirely consistent with ILO standards. The Government states that the CEACR has laid down the lawfulness of the primary strikes as the “minimum” requirement of a lawful secondary strike and has said that provided the primary strike is lawful, there should not be a general prohibition on secondary strikes; but it has not suggested that a regime that introduces a proportionality assessment of secondary strikes is impermissible.
14. 111. Referring to some of the past decisions of the CFA, the Government underlines the following points:
    • In Case No. 1381 (248th Report, para. 418) the Committee recognized that in circumstances where there is not a general prohibition, several restrictions on secondary strikes may be justified.
    • In Case No. 1810 (303rd Report), the Committee recognized that if the strike were to lose its peaceful character limitations would be justifiable.
    • In Case No. 2251 (333rd Report) the Committee held that while sympathy strikes were not expressly forbidden under the legislation, their legality may be ensured more generally through developed judicial precedents.
15. 112. In summary, the Government states that the complainant takes the oft-cited statement that “workers should be able to take such action provided the initial strike they are supporting is lawful” entirely out of context, as the two Committees have made that statement in the specific context of a complete prohibition on secondary strikes and have specifically suggested that reasonable restrictions – based, for example, on the need to respect various procedures, to guarantee security or to prevent violence – would be permissible. From these premises, the Government draws the conclusion that the approach adopted in section 66(2) of the LRA is not only justified as a matter of principle, but also consistent with the approach adopted by the two Committees regarding breaches of the Conventions.
16. 113. The Government indicates that the AMCU could have challenged the constitutional validity of section 66(2)(c), on the basis that it unjustifiably limits the right to strike in section 23 of the Constitution, but instead it chose to challenge the interpretation and application of that legal provision by the Labour Court, arguing that properly interpreted, the provision did not entail a proportionality analysis, and the secondary strike the AMCU had called should have been protected. This argument failed in the Constitutional Court. According to the Government in view of the principle of constitutional supremacy, South African courts are expressly required to declare an Act of Parliament that is inconsistent with the Constitution unconstitutional and invalid to the extent of its consistency. As the case before the Constitutional Court was not a challenge to constitutional validity, the Court was required to assume, without finally deciding, that the provision was constitutionally compliant. Therefore, the Government submits that until or unless the AMCU brings a challenge to the constitutionality of section 66(2)(c) to a South African court, it would be premature and inappropriate for the Committee to pronounce upon the Government’s compliance with the Conventions.

C. The Committee’s conclusions

1. 114. The Committee notes that this case concerns the legal framework governing sympathy strikes in South Africa, in particular section 66(2)(c) of the LRA, and its interpretation through binding judicial precedents. The first three paragraphs of section 66 read as follows:
   • (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).
2. 115. The Committee further notes at the outset the submission of the Government that “until or unless the AMCU brings a challenge to the constitutionality of section 66(2)(c) to a South African court, it would be premature and inappropriate for the Committee to pronounce upon the Government’s compliance with the Conventions”. The Committee recalls that “although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures” [Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 12]. The Committee will therefore proceed with its examination of the national law governing secondary strikes and the recent interpretation by the Constitutional Court with a view to determining whether the law and practice in South Africa is such as to constitute a serious obstacle to the calling of such strikes or result in practice in a general prohibition.
3. 116. The Committee notes the complainant’s allegation that despite the undisputed lawfulness of the primary strike, the Labour Court interdicted secondary strikes that it had called in ten mining companies, for non-compliance with section 66(2)(c) of the LRA, and the Constitutional Court of South Africa upheld this judgment and the reading of the law on which it was founded. The Committee notes that the complainant submits that to abide by its international obligations, South Africa should subject secondary strikes only to the requirement that the primary strike be lawful and that therefore, section 66(2)(c) of the LRA unduly limits the right of employees to freedom of association and should be amended to provide that a secondary strike is protected if the primary strike is protected. The Committee notes that the Government submits in this regard that section 66(2)(c) does not infringe South Africa’s international obligations, and that the lawfulness of a primary strike is only a minimum requirement set by ILO supervisory bodies, beyond which it should be left to national jurisdictions to determine the precise contours of the regulation of secondary strikes.
4. 117. The Committee takes due note of the detailed information provided by the Government on the steps taken to ensure the right to strike, including secondary strikes, in the country and its reference to several Constitutional Court rulings that demonstrate that the Court has adopted a rights-sensitive approach to strike action and showed a keen awareness of South Africa’s international obligations under ILO Conventions. The Committee further observes that this is the first time that section 66 and its application has been challenged before the Committee.
5. 118. The Committee recalls that in the context of national law regulating strike action it has stated that “the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations” [Compilation, para. 789]. It has over the years examined the restriction of strike action in specific contexts and found certain restrictions to be in violation of freedom of association while others were not and it has always conducted its work in this regard on a case-by-case basis.
6. 119. In view of the foregoing, the Committee observes the efforts made by the Government to ensure full guarantees of freedom of association, in particular the right to strike. The Committee wishes to make clear that it is not determining the conformity with freedom of association of section 66(2) of the Labour Relations Act. The Committee would invite the Government, along with the representative workers’ and employers’ organizations, to keep the application of section 66(2) under review and, where appropriate, to consider any measures that may be necessary to ensure conformity with freedom of association.

The Committee’s recommendation

1. 120. In the light of its foregoing conclusions, the Committee invites the Governing Body to consider that the present case does not call for further examination.