In terms of the Labour Relations Act No. 66 of 1995 (“LRA”) and in accordance with section 64(1), every employee has a right to strike. Under the previous Labour Relations Act No. 28 of 1956 (“Old Act”), in order for a strike to be protected, it must have been preceded by a strike ballot (“Ballot”). The Old Act was amended to eliminate the requirement of a Ballot, as there was evidence to support that this provision increased the occurrence of illegal strikes and amplified acrimony between employer and employee.
Those in support of Ballots argue that it is necessary, as a means to ensure that persons ultimately affected by the strike, being the employees/members themselves (who do not earn a wage for the duration of the strike action), are actually in support of the strike. However, on the other hand critics of the Ballot procedure note the practical difficulties associated with organising a Ballot and that in many instances, this could delay the onset of proposed strike action and increase illegal strike action.
Under the LRA, failure to hold a Ballot is irrelevant to the legality of the strike, thus affording the strike protection in law, regardless of whether a Ballot was held or not. However, the Government (“Government”) of the Republic of South Africa (“South Africa”) has attempted to reform South Africa’s collective bargaining, in an attempt to mitigate the dysfunctional and violent patterns of collective action in South Africa. The approach taken by the Government in dealing with the issue of Ballots, is the creation and presentation of the Code of Practice on Collective Bargaining, Industrial Action and Picketing (“Code”).
According to the Code, which is still in draft form, the LRA does not require a Ballot as a requirement for a protected strike. In fact, section 67(7) of the LRA states that, failure by a registered trade union or registered employer organisation to conduct a ballot, may not give rise to any litigation that will affect the legality and the protected status of a strike. In accordance with the Code, the obligation to hold a Ballot flows instead from the constitution (“Constitution”) of a registered trade union or employers’ organisation. The constitutional obligation is aligned with requirement in section 95(5)(p) of the LRA, which requires that in order for a trade union or employers’ organisation to be properly registered, its Constitution must provide for a secret Ballot before the calling of a strike. Registered trade unions and employers’ organisations are obliged to comply with their Constitutions, even though the failure to do so does not have the consequence of invalidating the protected status of the strike.
With this in mind, one must consider the insurmountable hurdle faced by an employer who is confronted with a strike, which is protected in law, but has not complied with its own Constitution. According to labour expert and author Andrew Levy, the most obvious remedy available to an employer, would be to seek an interdict from the court, not on the basis that the strike is unlawful or unprocedural, but based on the fact that the trade union or organisation has breached their own Constitution. The relief sought would be pending the strike, until such time that a Ballot has been taken in accordance with the Constitution of the trade union or employers’ organisation. The major hurdle in this regard, is that in the instance that the strike does not stop, it would still be protected.
The development proposed by the Code ought to be well received by the South African public, however the practicalities and effectiveness of the Code remains to be seen.
09 November 2018