Employment law Update – Interdicting a strike in terms of s 19 of the Labour Relations Amendment Act

June 1st, 2019
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Mahle Behr SA (Pty) Ltd v NUMSA and Others; Foskor (Pty) Ltd v NUMSA and Others (LC) (unreported case no D448/19, D439/19, 20-3-2019) (Gush J).

The transitional provisions as per s 19 of the Labour Relations Amendment Act 8 of 2018, which came into effect on 1 January 2019 states:

‘(1) The registrar must, within 180 days of the commencement of this Act, in respect of registered trade unions and employers’ organisations that do not provide for a recorded and secret ballot in their constitutions –

(a) consult with the national office bearers of those unions or employers’ organisations on the most appropriate means to amend the constitution to comply with section 95; and

(b) issue a directive to those unions and employers’ organisations as to the period within which the amendment to their constitution is to be effected, in compliance with the procedures set out in the amended constitution.

(2) Until a registered trade union or employers’ organisation complies with the directive made in terms of subsection (1)(b) and the requirements of section 95(5)(p) and (q) of the Act, the trade union or employer organisation, before engaging in a strike or lockout, must conduct a secret ballot of members’.

Section 95(5)(p) of the Labour Relations Act 66 of 1995 (the LRA) requires a registered trade union to include in its constitution a provision ‘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.’

The applicants in both matters approached the Labour Court for an order interdicting National Union of Metalworkers of South Africa (NUMSA) from calling out its members on a protected strike.

It was common cause that NUMSA’s constitution did not make provision for a secret ballot by its members before engaging in strike action nor did NUMSA conduct a secret ballot among its members employed by the applicants prior to its decision to embark on strike action.

The issue before the court was whether s 19(2) applied to NUMSA wherein it was obliged to conduct a secret ballot before its members engaged in a strike.

NUMSA representative raised two arguments why s 19(2) did not find application on the merits –

  • firstly, that s 19(2) unduly limits the right to strike; and
  • secondly, that the transitional provision only applies for the period between the registrar issuing a directive as contemplated in 19(1)(b) and before the union complies with the said directive.

From a reading and understanding of the second argument it appears as though the registrar had not yet issued a directive contemplated in s 19(1)(b) before this matter was argued at court.

In respect of the first argument raised the court held:

‘As far as the first issue is concerned it appears clear from the transitional provisions that the right to strike is not limited. All that is required should a union not wish to be subject to the transitional provisions is for that union’s constitution to essentially comply with the requirements of section 95(5)(p). This provision has been a requirement since the inception of the Labour Relations Act 66 of 1995. It is inconceivable that a trade union would have been registered if its constitution at the time did not comply with the requirements of section 95(5). The section specifically provides that “the constitution of any trade union that intends to register must” comply, inter alia, with subsection 5.’

On the second argument, the court noted that the issue raised turned on an interpretation of s 19. In addressing this argument, the court held:

‘The purpose of the legislation is clear in that its purpose, inter alia, 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 the holding of a secret ballot by a union (and employers organisation in respect of a lock out) prior to engaging in a strike. The requirement is peremptory and applies only to registered trade unions that do not include in their constitution the requirement of a ballot.

To interpret the section as not applying to the respondents negates any suggestion that the transitional provisions will apply in the interim pending compliance.’

In addition, the court was alive to s 67(7) of the LRA, which states that a failure of a trade union to follow its constitution in respect of conducting a ballot does not give rise to or constitute a ground for any litigation which seeks to affect the legality of the strike. The court, however, found that s 67(7) only applied to unions whose constitution already made provision for a ballot. In this case NUMSA’s constitution had not.

The court was thus satisfied that the transitional requirements applied to all trade unions, which did not make provision for a secret ballot in its constitution and until such time as the union complied with s 95(5)(p), it would be obliged to conduct a secret ballot before engaging in a strike.

In the absence of conducting a secret ballot, NUMSA and its members were interdicted from perusing any strike action.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2019 (June) DR 30.