MacSteel v NUMSA: When Is a Strike Legally Protected?

Case: MacSteel Service Centres SA (Pty) Ltd v NUMSA and Others (Labour Court, J1063/21, delivered 8 September 2021) — judgment contained in file labelled “Karsten v MacSteel” 

Source-control warning 

Before the law, a professional warning: the uploaded file was labelled “Karsten v MacSteel [1996] 8 BLLR 1015 (IC)”, but the text supplied is a 2021 Labour Court judgment involving MacSteel Service Centres SA (Pty) Ltd and NUMSA. That matters. Legal writing and arbitration bundles live or die by source integrity. Do not cite a case name that does not match the judgment in front of you. 

The issue 

The case concerns refusal-to-bargain disputes and the statutory preconditions for protected industrial action. Section 64(2) of the LRA provides that where the issue in dispute concerns a refusal to bargain, an advisory award must be made before strike or lock-out notice is given. 

What happened 

NUMSA represented the majority of employees at MacSteel. It initiated plant-level negotiations on substantive conditions of employment. MacSteel rejected the request, saying the demands should be tabled at industry level within the Metal and Engineering Industries Bargaining Council framework. 

NUMSA referred a refusal-to-bargain dispute to the MEIBC. MacSteel, through SAEFA, raised a jurisdictional objection based on the MEIBC Constitution and dispute-resolution framework. The commissioner upheld the point and issued a jurisdictional ruling that the MEIBC lacked jurisdiction because the demands should have been pursued through industry-level procedures. 

NUMSA treated the ruling as advisory in substance and issued a strike notice. MacSteel approached the Labour Court urgently to declare the strike unprotected and interdict it. 

The Labour Court’s answer 

The Court declared the proposed strike unprotected because section 64(2) had not been complied with. A jurisdictional ruling was not the advisory award required by the LRA. The Court directed the commissioner to perform the outstanding statutory function and issue the advisory award within a specified period. The strike was interdicted pending compliance, with the interdict to lapse once compliance occurred. 

The principle 

The ratio is that in a refusal-to-bargain dispute, compliance with section 64(2) is a statutory precondition for protected industrial action. An advisory award must first be issued. A commissioner who merely issues a jurisdictional ruling has not performed that statutory function and is not functus officio. The Labour Court may compel performance of the outstanding duty. 

Why this matters 

The judgment balances two important labour-law values. On the one hand, the right to strike is fundamental to collective bargaining. On the other hand, the LRA deliberately imposes a special procedure for refusal-to-bargain disputes. The purpose is to ensure thorough conciliation and advisory intervention before industrial action escalates. 

This is not an anti-strike judgment. It is a compliance judgment. The Court did not permanently suppress the strike. It enforced the statutory gateway and crafted an order that would fall away once the required advisory award existed. 

Practical takeaways 

For unions: in refusal-to-bargain disputes, do not issue strike notice before the advisory award has been made. A certificate or jurisdictional ruling may not be enough. For employers: if section 64(2) has not been complied with, urgent interdictory relief may be available, but the remedy should respect the right to strike once statutory compliance is achieved. 

For practitioners: keep this case in its lane. It is not authority for dismissal sanction, dishonesty, procedural fairness in misconduct enquiries or trust breakdown. It belongs in collective bargaining and strike-protection arguments. 

Closing thought 

MacSteel’s practical message is simple: the right to strike is powerful, but procedure still matters. In refusal-to-bargain disputes, the advisory award is not a formality. It is the statutory gateway. 

Publication note: This article is prepared for general labour-law discussion and professional thought leadership. It is not legal advice on any specific dispute.