New labour rules require secret ballots before strikes, lockouts

Cosatu and its affiliates members march to the Gauteng legislature in Johannesburg, 13 February 2019, on a one-day nationwide strike against job losses and Eskom restructuring. Picture: Nigel Sibanda

Trade unions and employers are now required to conduct a secret ballot among their members before going on strike, or starting a lockout.

The days of wildcat strikes and vindictive lockouts are gone and both trade unions and employers will have to follow new rules that require them to conduct secret ballots before embarking on action.

Until the guidelines were published and promulgated by Labour department last year, picketing and strikes by workers and lock-outs of striking employees by their employers did not strictly need prior secret balloting in terms of the Labour Relations Act (LRA).

The guidelines, which came into effect on 1 January as amendments to the LRA after the government was concerned about long and drawn-out strikes or lock-outs that often resulted in intimidation and violence in the workplace.

This aims to avoid such strikes by ensuring that alternative solutions were found without the need for a strike or lockout.

Johannesburg-based labour lawyer and partner at international law firm Hogan Lovells South Africa, Osborne Molatudi, said both unions and employers better comply with the new regulations. He said there has to be an agreement between the two parties before a strike takes place, including giving reasonable notice by the union of its intention to embark on a strike, or picketing by its members in a company.

But Molatudi said that in the past there was a provision for balloting but not for a secret ballot and unions did not have to have this provision in their constitutions but it now it was being implemented as part of the law.

“The idea is simple – that there should be no situation where workers embark on a strike which may go out of control because there were no perimeters set for the industrial action to happen. The idea is to ensure that the strike activities are orderly – it’s an arrangement that requires that employers and employees have a provision for balloting prior to an action, whether it’s a lockout or a strike,” Molatudi said.

Unions would now be obliged to have a clause in their constitutions for a secret ballot which had now become the law. Every trade union or employer organisation would be required to conduct a secret ballot among its members for those members to embark on a strike, or for the employer body to implement a lockout against employees.

“The guidelines also have an effect of responsibility and accountability against trade unions or employer organisations when a decision to go on strike or to lock out striking members has been taken. No more shifting of blame, particularly where the voting would be in favour of the action taken,” he said.

Molatudi said under the new legal regime, the parties would not only give a reasonable notice of their intention to strike or lockout, each must give a reasonable place where the balloting is to take place.

When the guidelines were published on 19 December 2018 by the Minister of Labour some trade unions opposed them, with the South Africa Federation of Trade Unions (Saftu) and its affiliates saying this was an attempt to deprive the workers of their constitutional and labour right to strike. But Cosatu did not oppose the proposals, saying that balloting provision always existed in the LRA but it was not strictly applied and therefore it was neither new nor a reason for alarm.

Similarly, employer organisations had not raised a storm about the new guidelines, an indication that they had no issue with them.

Molatudi said the rationale behind the secret ballot provision was very simple – to make sure that the intended action was well supported, whether it’s an action to strike or an action to lock out.

“There has got to be a threshold in terms of the agreement by the parties in terms of whether the balloting outcome should be a simple or a two-thirds majority or whatever. The lawmakers left this matter to the trade unions and employer organisations to sort it among themselves,” Molatudi said.

The entire balloting process has to be monitored by independent monitors to ensure they comply with procedure, so as to ensure no disputes arise regarding the voting.

Members participating in the balloting have to be members in good standing in the trade union or employer organisations, and balloting could be by way of a ballot box voting where the voter would put an X, or by an SMS or an e-mail or a fax. But any method other than an X would have to be strictly verified for legitimacy.

“A member who refuses or fails to participate in the strike or lockout may not be disciplined or have their membership terminated,” Molatudi said.

While the law is unclear about individual choices, it appeared that the use of a fax or SMS or e-mail would apply to those who were unable to attend the balloting process physically.

The records for the balloting must be kept for at least three months to ensure that they are available should any of the parties challenge the outcome.

“As Hogan Lovells we would like to appeal to both trade unions and employer organisations to take this moment to make use of the guidelines to avoid falling foul of the law. They need to take advantage of these guidelines in order to demonstrate that their intended action is indisputably well supported,” Molatudi said.

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