No need for secret ballot before going on strike

The National Union of Metalworkers of South Africa (NUMSA) has scored yet another victory, with the Labour Appeal Court (LAC) ruling that there is no need for compulsory balloting before a strike as demanded by the amended Labour Relations Act.

The landmark ruling shamed the recently enacted legislation by parliament that workers must first ballot in order to gauge the support for a strike before undertaking one. A failure to undertake a ballot process would have rendered any strike action illegal.

The most striking feature of the amendment to the Labour Relations Act was the fact that the law interfered with the Constitution of a union because it forced unions to amend or insert a clause in their constitutions, to provide for compulsory strike ballot. A union that did not have the provision could even be deregistered by the Labour Department.

The South African Federation of Trade Unions (Saftu) and its affiliates such as Numsa opposed the law, but Cosatu and its unions supported it on the basis that the requirement for strike balloting had been in existence anyway, but it was never applied before or made compulsory.

Saftu made representations in Parliament on how the legislation limited the right of workers to strike, bordered on being unconstitutional, and over-reached on union constitutions, but it was passed nonetheless.

In the latest ruling the LAC found that NUMSA was not required to hold a secret ballot before engaging in protected strike action. The union earlier appealed two judgements it regarded as “incorrect” by the Labour Court in KwaZulu-Natal in March 2019, where the judge found in favour of Foskor and Mahle Behr.

A note by Cliff Dekker Attorney showed at the time the Labour Court said that the requirement to conduct a secret ballot did not constitute an infringement on the right to strike.

“The Mahle Behr judgment clarifies the position that a strike can be interdicted as a result of the failure to conduct a recorded and secret ballot.”

The firms wanted their respective striking employees to ballot before their industrial action in what was seen as the first application of the ballot-first-strike-after legislation amendment dispensation. Judge Gush granted the applications to Foskor and Mahle Behr, but Numsa immediately appeal the ruling.

In overturning the judgement, LAC found that the labour court judge had misunderstood the Labour Relations Amendments of 2018. The court found that a secret ballot was not required because the registrar had not consulted with Numsa and had not issued any directive to it to amend its constitution to provide for a secret ballot.

“This is a significant victory for NUMSA and the working class. It basically means that until the Registrar complies with the terms of section 19 of the LRA, members of the South African working class may embark on strike action without being forced to ballot first,” said Numsa general secretary, Irvin Jim.

Jim said the strike had paid off as Mahle Behr had since not only signed a recognition agreement with Numsa, but the union had successfully negotiated for an increased transport and allowances, which the firm initially refused to pay.

The relationship between the Mahle Behr and the union had strengthened with Numsa now allowed to be part of the company’s Steering committee enabling the union to assess the firm’s performance.

At Foskor, workers were striking over profit sharing. As a result of the demands, management eventually succumbed and they paid the profit share. The company agreed to comply with pay progression, taking workers from the lowest pay to the next level (from minimum to medium).

Before the strike Foskor declined to pay the ownership scheme but had subsequently agreed to an amount of R7000 per worker. The parties further reached agreements on an external health and safety official to inspect the company and for private investigators to probe allegations of corruption as raised by the workforce.

“We won on the issue of the right to strike, and we won on the demands of workers. This is truly a victory for our members and for the working class at large. This victory has inspired us to work even harder to defend the interests of workers and their families,” Jim said.

ericn@citizen.co.za

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