Amcu workers on strike. Picture: PUXLEY MAKGATHO
Amcu workers on strike. Picture: PUXLEY MAKGATHO

On January 1 one of the key amendments of the Labour Relations Amendment Act of 2018 came into effect. This requires trade unions and employer organisations to amend their constitutions to make provision for secret ballotting before a trade union can call on its members to strike, or an employer organisation can lock out striking employees.

In addition, the labour minister issued guidelines in December 2018 on ballotting for strikes or lockouts.

To be clear, it is not as if the ballotting requirement was never there in the first place. It has always been, contained in section 95(5)(p) of the Labour Relations Act. The objective of this amendment is, among others, to test whether an intended strike or lockout has the support of the majority of members of a trade union or employer organisation. This is so because nonsecret ballotting was seldom utilised as members would have been reluctant to do so publicly.

While the amendment, together with others, came into effect on January 1, there are what is referred to as “transitional provisions”. These require trade unions or employer organisations to amend their constitutions to include secret ballotting, which must be done within a period of 180 days (about five months, which coincidentally is the end of May when one calculates from January 1, the date the amendment came into force).

Therefore, trade unions or employer organisations may argue that until they have amended their constitutions to include secret ballotting, they can still call on their members to go on strike or for a lockout, without conducting secret ballotting of those members. Sadly for them a recent labour court judgment in Durban (Mahle Behr SA and Foskor as applicants, versus Numsa and others as respondents) essentially ruled: no secret ballotting, no strike.

And you can now interdict. It should be kept in mind that before this judgment this was not the case, as in terms of a section dealing with strikes or lockouts in compliance with the labour relations act, failure to conduct a ballot did not constitute a ground for any legal action that affected the legality of a strike or protection of union members (section 67(7) of the act).

In my view, this labour court judgment has opened avenues for employers to interdict a strike called by a trade union that has not conducted secret ballotting of its members beforehand. It is important to note that this similarly affects employer organisations: no secret ballotting, no lockout.

The judge in this case in effect made a ruling that, in interpreting statutes, the court is required to apply the accepted canons of interpretation. In this matter, I believe the provisions of section 19 are clear and unambiguous and the court is obliged to effect them.

The purpose of the legislation is clear in that its main purpose is to provide that before a union may engage in a strike it should conduct a secret ballot of its members. In addition to this provision and to regulate the interim position, the transitional provisions require a secret ballot by a union (and employers organisation in respect of a lockout) prior to engaging in a strike. The requirement applies only to registered trade unions that do not include the requirement of a ballot in their constitutions.

This is a peremptory provision and, until the respondents comply, they may not engage in a strike. It is clear from this that trade unions and employer organisations must comply now — the secret ballotting is peremptory. An argument that there is still a process to amend the constitution to make provision for secret ballotting will not hold water, as per this judgment.

It remains to be seen whether this judgment will be heeded and unions and employers’ organisations will conduct secret balloting before calling for a strike or lockout. My view is that in any event, and upon the expiry of the 180 days, there should be no further debate on this requirement.

The consequences of noncompliance are severe: deregistration, cancellation or even being placed under administration. I strongly urge trade unions and employer organisations to seek advice before a decision to strike or lock out is taken. 

• Molatudi is an attorney focusing on employment and labour law.