23 September 2019 by , and Employment Alert

Update: Ladies and gentlemen, it’s time to place your (secret) ballots

The requirement to hold a secret ballot before embarking on strike action has been a hot topic of late. Here’s a recap: S19 of the Labour Relations Amendment Act, No 8 of 2018 (Amendment Act) requires trade unions (and employers’ organisations) to amend their constitutions to provide for secret strike ballots prior to embarking on strike action, in the event that their constitutions do not already provide for this.

Section 19 further provides that those trade unions who have not yet amended their constitutions to cater for secret ballots, are legally required to first conduct a secret ballot before embarking on any strike action.

The interpretation of s19 of the Amendment Act was recently tested in the case of Johannesburg Metropolitan Bus Services (SOC) Ltd and Democratic Municipal and Allied Workers Union (J1799/19). In this case, the employer brought an urgent application to the Labour Court to interdict the intended strike action based on, amongst others, the union failing to hold a secret ballot before engaging in the strike. The employer contended that the union was legally required to do so, given that it had not amended its constitution to provide for a ballot as per s19.

It was the trade union’s position that the requirement to conduct a secret ballot in these circumstances constituted a limitation on the right to strike.

The Labour Court held that a failure to comply with the requirements of s19 of the Amendment Act amounts to a breach of the Labour Relations Act, No 66 of 1995 (LRA). Furthermore, unlike an order declaring a strike to be unprotected, an order requiring the trade union to first conduct a secret ballot in accordance with s19 was a temporary limitation on the right to strike. The court held:

“I am inclined to concur that an obligation on a registered union to conduct a secret ballot of its members before engaging in strike action in conformity with a provision which it ought to have included in its constitution in any event does not impose a limitation on the right to strike. It remains entirely within the union’s power to remedy the situation.”

The Labour Court accordingly interdicted the strike pending compliance with s19 of the Amendment Act.

The position therefore appears to be as follows:

Section 19 of the Amendment Act requires trade unions to amend their constitutions to provide for a secret ballot where their constitutions do not already cater for this;

Those trade unions who have not amended their constitutions accordingly, are required to first conduct a secret ballot before embarking on strike action, in terms of s19(2) of the Amendment Act, failing which employers may approach the Labour Court on an urgent basis to interdict the strike pending compliance with s19 of the Amendment Act; and

The legal requirement to conduct a secret ballot only exists where trade unions have not amended their constitutions to provide for a secret ballot.

The question then becomes: what happens if a trade union has complied with the requirement to amend its constitution by including the secret ballot provision, but still goes out on strike without first conducting the secret ballot (ie contrary to the requirements of its own constitution)?

Section 67 of the LRA is relevant. Section 67 prescribes that a failure of a trade union to comply with a provision in its constitution regarding a ballot may not constitute a ground for litigation affecting the legality or protected nature
of the strike.

It therefore appears that where trade unions comply with s19 of the Amendment Act (by amending their constitutions) but nevertheless embark on strike action without complying with their constitutional prerequisite to first hold a secret ballot, an employer is prohibited from interdicting the strike on account of s67(7) of the LRA.

The apparent conflict between s19 of the Amendment Act and s67(7) of the LRA has not yet been tested before the Labour Court. CDH will provide an update in this regard when and if this conflict is resolved.

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