An attempt to stop NUMSA from calling a strike because it had not held a secret ballot failed. In the matters between NUMSA and Mahle Behr and NUMSA and Foskor with AMCU as amicus curiae the Labour Appeal Court had to determine whether in the absence of compliance with the transitional provisions of the Labour Relations Amendment Act 2018 (LRAA) a registered union may be interdicted from striking, without having conducted a secret ballot.

The Labour Relations Act 1995 (LRA) has, since inception, provided that in order for a union to be registered, its constitution must provide for a ballot to be held prior to calling out a strike. The failure to conduct a ballot, however, was not a ground to interdict a strike under the LRA. This position was clear until the LRA was amended by the LRAA in 2019.

Legislative framework

The LRA states that in order to be registered, a union’s constitution must provide that members may not be disciplined or have their membership terminated for failing or refusing to participate in a strike either because (1) no strike ballot was conducted, or (2) the outcome of a strike ballot was not in favour of the strike.

In January 2019, the LRAA effected various amendments to the LRA. The relevant amendment in this case was the insertion of sub-section 95(9). This sub-section effectively provides that a ballot includes ‘any system of voting by members that is recorded and in secret’. It is not clear whether the amendments require, for the purposes of registration, that the union’s constitution must include a ballot that is secret and recorded before it may call a strike, but it is likely that this was the lawmakers intended. The LAC judgment in this matter supports this view.

Section 19 of the LRAA also made transitional provisions to allow for registered unions to comply with the new balloting requirements, that is, that the ballot be recorded and secret. The transitional provisions required the registrar of labour relations to do two things in relation to registered unions whose constitutions did not already provide for recorded and secret ballots:

  • consult with the union on the most appropriate means to amend the constitution to comply with the amended balloting requirement; and
  • issue a directive to the union as to the period within which the amendment to the constitution must be effected, in compliance with the procedures for amendment in the constitution.

These two steps were to be taken within 180 days of the LRAA coming into effect, that is, from 1 January 2019 In terms of section 19(2) of the LRAA, until such time as a registered union has:

  • complied with the registrar’s directive; and
  • complied with the requirements of section 95(5)(p) and (q) of the LRA,

a secret ballot must be held.

Background

In this matter NUMSA did not conduct a secret ballot. Its constitution did not require a secret ballot, and there was no evidence that the registrar had consulted with NUMSA or issued a directive, as required by the transitional provisions.

LAC

The LAC’s point of departure was that the right to strike flowed from the constitutional right to fair labour practices and that any statutory provision that limits such a right must be interpreted in a manner that is least restrictive.

The LAC held that the ‘duty cast upon the trade union is not to amend its constitution in a manner it deems fit in order to comply with the new definition of “ballot” in section 95(9) of the LRA, but to comply with the Registrar’s directive as to the appropriate means, period and procedures to amend the constitution’.

In this case the registrar had not consulted and issued a directive, and NUMSA’s constitution did not provide for a secret ballot. The LAC found that NUMSA’s constitution as it stood, and there being no compliance with the transitional provisions, did not require a secret ballot. The constitution was compliant with section 95 of the LRA, notwithstanding the absence of a secret balloting provision.

NUMSA was therefore entitled to rely on section 67(7) of the LRA which provides as follows:

‘The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.’

In the absence of an obligation to amend its constitution in terms of a directive from the registrar, the LAC found that there was no basis for the interdicts.

The LAC held that section 67(7) may only be relied upon by registered unions whose constitutions meet the requirements for registration, which includes the balloting requirements. The upshot of this finding is that if the registrar has consulted and issued a directive, and the union has duly amended its constitution to meet the new balloting requirements, a strike will be protected even if a union has not conducted a secret ballot. Therefore while the obligation to conduct a secret ballot exists, the consequences for failing to do so are limited due to the application of section 67(7).

Comments

It is arguable that there is a third scenario in which an employer may apply to interdict a strike where there has been no secret ballot. This may arise where the registrar has consulted and issued a directive and a union does not amend its constitution to provide for a secret ballot and does not conduct a secret ballot. In terms of section 19(2) of the LRAA, a registered union would be obliged to conduct a secret ballot. This means that an employer could still apply to interdict a strike in such circumstances, but the chances of success are slim in these circumstances.

In National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others the Constitutional Court, dealt with the issue of whether NUMSA could exercise organisational rights in an industry that did not fall within its registered scope. It held that ‘the contractual purpose of a union’s constitution and its impact on the right to freedom of association of its current members is founded in its constitution. A voluntary association, such as NUMSA, is bound by its own constitution. It has no powers beyond the four corners of that document’.

The failure of a registered union to comply with its constitution is a matter that does not involve third parties, save in limited circumstances, such as the Lufil case. It is difficult to foresee a situation in which a court would limit the right to strike because a union did not hold a secret ballot. The legislator’s intention that the absence of strike ballot should not be grounds for a challenge to a strike is clear from section 67(7) of the LRA. Employers should carefully consider whether to approach the Labour Court for a strike interdict based on non-compliance with a union’s strike balloting provisions. There is no apparent reason why a registered union that does not comply with its constitutional obligation to conduct a secret ballot should be in a better position than one that does not have such constitutional obligation.