When the Constitutional Court had cause to interpret a section of the Labour Relations Act regarding the requirements for a secondary strike, the court had recourse to what it called the ‘main secondary source’ namely the Parliament’s Explanatory Memorandum on the Labour Relations Bill in order to gather the intention of the legislature.

A secondary strike in support of the main strike is lawful if “the nature 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”.  Although the only requirement of the International Labour Organisation in this context is that the secondary strike must be lawful. The explanatory memorandum made it clear that there must be an economic connection between the primary and secondary employers for a protected solidarity strike.  Section 66(2)(c) has nuances in relation to reasonableness and the specific requirements of the section which were partly explained by the background information.  The court limited its recourse to that background information to acknowledging that the genesis of the Labour Relations Act clarified the intention of the section to require the primary strike to be lawful but added procedural and other requirements consistent with the negotiations at the time and the Constitution.

It will be rare cases where resort is had to these background documents.

Association of Mine Workers and Construction Union v AngloGold Ashanti Limited [2022] 2 BLLR115 (CC)