Every worker has the right to strike, in terms of Section 23(2)(c) of the Constitution of the Republic of South Africa, 1996. Although the constitutional right to strike is unrestricted, it must be borne in mind that, like any right set out in the Constitution, it is not an absolute right. Section 36 of the Constitution allows the right to strike to be limited in terms of the law of general application, however, this section requires that when applying the limitation of this right, it should be reasonable and justifiable.
The Labour Relations Act 66 of 1995 (‘the LRA’) came into operation on 11 November 1996. Section 64 of the LRA confers procedural limitations to the right to strike. The LRA, however, does not require the conduct of a ballot, as a requirement for a protected strike or lock-out. The obligation to ballot flows instead from the Constitution of a registered trade union or employers’ organisation. The constitutional obligation flows from the requirement in Section 95(5)(p) of the LRA that a trade union or employers’ organisation that seeks registration, must provide in its Constitution for the conduct of a ballot before the calling of a strike or lock-out. The requirement set out in Section 95(5)(p) relates to the registration of trade unions or employers’ organisations. This section requires that the Constitution of any trade union or employers’ organisation that intends to register, must provide that the trade union or employers’ organisation, before calling a strike or lock-out, must conduct a ballot of those of its members in respect of whom it intends to call the strike or lock-out.
Furthermore, in terms of Section 95(5)(q) of the LRA, a member of a trade union or employers’ organisation may not be disciplined or have their membership terminated for a failure or refusal to participate in a strike or lock-out if no ballot was conducted; or if a ballot was held, and a majority of members did not vote in favour of a strike or lock-out.
Section 67(7) of the LRA states specifically that a failure by a registered trade union or a registered employers’ organisation to conduct a ballot, may not give rise to litigation that will affect the legality and protected status of a strike. Section 67(7) deals with a strike or lock-out in compliance with the LRA and stipulates that “The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.”
Therefore, from the contents of Section 95(5)(p) & (q) read with Section 67(7) of the LRA, it is clear that registered trade unions or employers’ organisations are obliged to comply with their constitutions, even though the failure to do so does not have the consequence of invalidating the protected status of the strike or lock-out.
It is contemplated in Section 68(1) of the LRA that the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in a strike or any conduct in contemplation or in furtherance of a strike or a lock-out, in the event that such strike or lock-out or any conduct in contemplating or in furtherance of such strike or lock-out, does not comply with the provisions Chapter 4 of the LRA.
The Labour Relations Amendment Act 8 of 2018 (‘the Amendment Act’) came into operation on 01 January 2019 and in terms of which the transitional provisions are set out in Section 19 as follows:-
“1. The registrar must, within 180 days of the commencement of this Act, in respect of registered trade unions… That do not provide for recorded and secret ballot in the constitutions –
a. consult with the national office bearers of those unions…On the most appropriate means to amend the Constitution to comply with section 95; and
b. issue a directive to those unions…As for the period within which the amendment to the Constitution is to be affected, in compliance with the procedures set out in the amended Constitution.
2. Until a registered trade union…complies with the directive made in terms of subsection (1)(b) and the requirements of section 95 (5)(p) and (q) of the Act, before engaging in a strike…, must conduct a secret ballot of members.”
In the matters of Mahle BEHR SA (Pty) Ltd v NUMSA and Others (2019) 40 ILJ 1814 (LC); Foskor (Pty) Ltd v NUMSA and Others, both Applicants/Employers brought an urgent application to the Labour Court, to obtain an order interdicting the Respondents from engaging in a strike. In both matters, the Respondents had not conducted a secret ballot of members before engaging in the strike.
The Labour Court first had to determine whether the transitional provisions set out in Section 19 of the Amendment Act were relevant to a consideration of the applications and whether it applied to the Respondents. The Respondent was non-compliant with the requirements of Section 95 (5)(p) or (q) of the LRA. The Respondent in both matters was a registered trade union which Constitution did not provide for a “recorded and secret ballot” to be held prior to engaging in a strike.
It was argued on behalf of the Respondent and its members that the transitional provisions infringed their constitutional right to strike, as well as that the transitional provision could not apply to the Respondents, as the obligation to conduct a secret ballot arose only after the registrar had issued the directive and before there was compliance with the directive.
The Labour Court pointed out that the provision in Section 95(5)(p) of the LRA, has been a provision since the inception of the LRA, which requires that a trade union or employers’ organisation that seeks registration, provide in its Constitution for the conduct of a ballot before the calling of a strike or lock-out.
The Court furthermore held that it would not be acceptable to interpret Section 19 of the Amendment Act to mean that it only applies to after the registrar had issued the directive, as such interpretation would nullify any suggestion that the transitional provisions apply in the interim pending compliance thereof.
The Labour Court consequently interdicted the Respondents in both matters from embarking on the current strikes, due to the fact that the union failed to conduct a secret ballot as required by Section 19 of the Amendment Act.
This decision has been overturned by the Labour Appeal Court on 08 June 2020, on the grounds that the Amendment Act includes transitional provisions, which recognise the time it takes for unions’ constitutions to be amended. The Labour Appeal Court ruled that the Appellants (NUMSA and others) were not required to hold a secret ballot before engaging in protected strike action, because the registrar had not consulted with NUMSA and had not issued any directive to it to amend its Constitution to provide for a secret ballot.
Prior hereto, a failure to conduct a secret ballot would have rendered any strike action illegal. The Labour Appeal Court, however, clarified on 08 June 2020 that a secret ballot is compulsory after the Registrar of Trade Relations had consulted with a trade union and had issued a directive for the trade union to amend its Constitution.
Article by: Liza Engels
Dispute Resolution Official – Pretoria