It is settled law that a union can call a strike or embark on industrial action if there is a dispute regarding matters of mutual interest. Many employers, however, raise the question of whether their employees desire to embark on industrial action at the expense of losing their wages. As much as this is a process conducted by the union and their members, it should comply with the prevailing statutory regime.

Section 95 of the Labour Relation Act (LRA) provides for the legal requirements regulating Registered Trade Unions and Employers’ Organisations. Section 95(5)(p) provides that “The constitution of any Trade Union that intends to register must provide that the trade union, before calling a strike, must conduct a ballot of those of its members in respect of whom it intends to call the strike.” This provision of the Act came into effect on 1 January 2019.

Despite certain transitional arrangements, from this date, unions were required to comply with this provision; thus, the secret ballot became a requirement prior to the commencement of a strike.

The issue is somewhat confused by another provision of the LRA, Section 67(7), which provides “the failure by a registered trade union 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 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.”

The effect of this provision of the LRA negates the peremptory nature of Section 95(5). If the employer cannot enforce the provisions of Section 95(5) by way of an interdict, then they may as well not exist. The inclusion of section 95(5)(p) was a progressive step by the legislature to ensure improved governance and accountability for unions.

In the case of Mahle Behr SA (Pty) Ltd and NUMSA & Others and Foskor (Pty) Ltd v NUMSA and Others, the Labour court did grant an interdict order preventing the union from engaging in strikes in the absence of a secret ballot. However, in this case, the court interpreted Section 67 as only to apply to unions whose constitutions made provisions for secret ballots, while NUMSA’s did not at that time.

The position has, to some extent, been settled by the provisions of The Code of Good Practice (Collective Bargaining, Industrial Action and Picketing). Section 19 of the Code provides:

  1. The Act does not require the conduct of a ballot as a requirement for a protected strike. Section 67(7) of the Act states quite explicitly that the failure of a registered trade union to conduct a ballot may not give rise to any litigation that will affect the legality and the protected status of a strike.
  2. The obligation to ballot flows instead from the constitution of a registered trade union. The constitutional obligation flows from the requirement of Section 95(5)(p) of the Act that a trade union that seeks registration must provide in its constitution for the conduct of a ballot before the calling of a strike or lockout. That ballot must be a secret ballot.
  3. Registered trade unions are obliged to comply with their constitutions even though the failure to do so does not have the consequences of invalidating the protected status of the strike.

In practice, employers do not engage unions on whether they have conducted a secret ballot, and conversely, the outcomes of secret ballots, when conducted, are not disclosed by unions. And even though their constitutions must contain the provision for secret ballots, they are not required to follow those constitutional provisions.

Article By: Stephen Kirsten
Provincial Manager – CEO Cape Town