13 April 2021 by and Employment Law Alert

Let the people strike! Court guides State on the nature of guidelines

In the case of Association of Mine Workers and Construction Union (AMCU) v The Minister of Employment and Labour (06 April 2021), the North Gauteng High Court (NGHC) set aside the Guidelines issued by the Minister of Employment and labour (the Minister) providing for the system of voting contemplated in section 95(9) of the LRA. Paragraphs 9.1 - 9.6 of the Guidelines contained mandatory requirements for balloting before a strike could be called by a Trade Union.

The bone of AMCU’s contention was that the Guidelines were invalid because the Minister issued the Guidelines in terms of section 95(9) of the Labour Relations Act 56 of 1995 (the LRA) as opposed to the correct section 95(8), being the section that creates the power to issue such Guidelines for the Minister. Furthermore, AMCU took issue with the mandatory requirements imposed by paragraphs 9.1 – 9.6 of the Guidelines, which, in AMCU’s contention, were ultra vires the powers conferred on the Minister by sections 95(5) and 95(8).

The court held that there is a “legislative imperative to act within the powers granted by the enabling legislation”. Section 95(9) did not empower the Minister to issue the Guidelines in question. Accordingly, the court found, the reference in paragraph 1 of the Guidelines to section 95(9) was clear evidence of reliance being placed on the incorrect section of the LRA by the Minister. Furthermore, the court found, the bulk of the provisions contained in the Guidelines were couched in mandatory terms, which rendered them ultra vires the powers conferred on the Minister by section 95 in that regard. Put differently, the court found that section 95(8) only permits the issuing of discretionary, as opposed to mandatory, requirements for balloting.

The case is of particular importance as it demonstrates the courts’ attitude towards the protection of the rights and freedoms created for Trade Unions and Employees by the LRA, particularly those that relate to the sanctity of the Collective Bargaining process.

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