Author: Neil Coetzer Aitken (source: Cowan Harper Madikizela Attorneys)
On 20 March 2019, the Labour Court handed down judgment in the cases of Mahle Behr SA (Pty) Ltd and NUMSA & Others (D448/19) and Foskor (Pty) Ltd v NUMSA & Others (D439/19). In those matters, the Labour Court interdicted NUMSA from engaging in strikes on the basis that the Union had failed to conduct a secret ballot, as required by section 19 of the Labour Relations Amendment Act 8 of 2018.
The Labour Relations Amendment Act came into effect on 1 January 2019 and made it compulsory for Unions and employers’ organisations to include in their constitutions certain provisions dealing with means to ensure that secret ballots are held prior to engaging in a strike or lock-out. In addition, section 19 of the Amendment Act placed an obligation on the Registrar of Labour Relations to consult with the Unions and employers’ organisations on the most appropriate means to amend their Constitutions and to issue a directive to those Unions or employers’ organisations setting out the date by which such amendments should be affected. The Registrar is required to do this within 180 days of the commencement of the Amendment Act.
Importantly, section 19 also provides, inter alia, that a Union must conduct a secret ballot of its member before engaging in a strike, until such time as it has complied with the Registrar’s directive. It was common cause in the matters before the Labour Court that NUMSA’s constitution did not comply with sections 95(5)(p) and (q) of the Labour Relations Act 66 of 1995, as amended (“the LRA”) in that it did not provide for certain requirements concerning balloting processes.
The Labour Court pointed out that while section 67(7) of the LRA provides that a failure of a Union to comply with a provision in its constitution regarding a ballot may not give rise to or constitute a ground for any litigation concerning the legality of the strike, this section only applied to Unions that had complied with the requirements of section 95. NUMSA had not complied with those requirements.
NUMSA argued that the provisions of section 19 constituted an infringement of the respondent’s constitutional right to strike and, further, that section 19 was in any event not applicable since the obligation to conduct a secret ballot arose only after the Registrar issued the directive.
The Court found that neither of these arguments had any merit. The Court held that in order for a Union to avoid the consequences of section 19, NUMSA simply had to comply with section 95(5)(p) of the LRA. Section 19 requires simply that the Union conduct a secret ballot of members and such a provision, the Court held, did not infringe the right to strike.
The Court also concluded that the provisions of section 19 are clear and unambiguous and the Court was obliged to give effect thereto. It found that the legislation’s purpose was to ensure that a secret ballot was conducted by a Union prior to engaging in a strike during the transitional period following the enactment of the Amendment Act. The Court held that the requirement is peremptory and applies only to registered Unions whose constitutions do not contain a balloting requirement.
On this basis, the Labour Court interdicted NUMSA from engaging in any strike.
The judgment may be controversial for a number of reasons, including the Court’s interpretation of section 67(7) of the LRA. Nevertheless, it is likely that other employers may also now seek to interdict Unions and their members from engaging in strikes until such time as the Unions’ Constitutions have been amended to comply with the provisions of section 95 of the LRA. To that extent, the judgment is a positive development signalling an important shift towards improved governance and accountability for Unions.