Page 5 - KZN Business Sense - Vol6 No3 - eBook

STRIKING A BALANCE

WILL THE COURTS STRIKE EVER STRIKE A BALANCE ON THE RIGHT TO STRIKE?

Alexander Rocher, Consultant, Labour conclusion that NUMSA was
Law, Cox Yeats Attorneys legally obliged to conduct a
secret ballot and accordingly
there was no cause to interdict
very worker has the NUMSA and the individual
Constitutionally
Eentrenched right to strike appellants from engaging in the
strike on that basis.”
in terms of section 23(2)(c) of
the Bill of Rights. We do not expect this judgment
of the LAC to be appealed to
The notion of a requirement the Constitutional Court, and,
in law for unions to conduct a for now, this decision on strike
ballot of its members, before ballots is final. The LAC decision
embarking on strike action, has undoubtedly upholds “every
always been contentious.
workers’ right to strike”. Our
On 19 March 2019, the Labour view is that this is yet another
Court (per Gush J) handed employee-orientated and
employers at large a godsend imbalanced decision dominated
judgment in the case of Mahle by the right to strike.
Behr SA (Pty) Ltd v NUMSA; ALEXANDER ROCHER is
and Foskor (Pty) Ltd v NUMSA a consultant with the firm and
(D448/19 & D439/19) [2019] Alexander Rocher, Consultant Sunil Hansjee, Partner has specialised in Employment
ZALCD 2 (20 March 2019). The and Labour Law since January
upshot of this Labour Court In order to delve into the Transitional provisions The LAC therefore held that: 2005. He advises and represents
judgment was that: technicalities, firstly, one (1) The registrar must, within “[12] The trigger for the corporate clients in all facets
must understand that since its application of section 39(2) of
“[16] That being so I am inception, the Labour Relations 180 days of the commencement of employment law, both
satisfied that the transitional Act 66 of 1995 (effective 11 of this Act, in respect of the Constitution is whether the individual and collective
requirements apply to those November 1996) (LRA) has registered trade unions and provision in question implicates disputes, such as dismissals,
unions whose constitutions always required that, in terms employers’ organisations that or affects a right in the Bill unfair labour practices,
do not provide for a “recorded of section 95(5)(p), a registered do not provide for a recorded of Rights. The present matter employment equity litigation,
and secret ballot” and that in trade union must have a and secret ballot in their implicates the right to strike retrenchments, transfers of
the interim prior to complying provision in its constitution constitutions— entrenched in section 23(2) businesses, implementing
with the requirements relating requiring the conducting of a a) consult with the national (c) of the Constitution. Hence, changed working conditions,
to a secret ballot they “must strike ballot before calling its office bearers of those unions section 19 of the LRAA must be mutual interest disputes, strike
conduct a secret ballot of members out on strike. or employers’ organisations read purposively in the light of management, strike interdicts,
members” before engaging in on the most appropriate the relevant provisions of the collective agreement disputes
a strike. The Labour Relations means to amend the Constitution, and if there is an and demarcation disputes.
Amendment Act 8 of 2018 constitution to comply with interpretation of section 19 of
[17] This is a peremptory the LRAA that better promotes
provision and until the (effective 1 January 2019) section 95; and the preservation of the right to Should you require any assistance in this
respondents comply they may (the LRAA) amended the b) issue a directive to those strike, that interpretation ought regard, please contact our Labour Law
Team on :
not engage in a strike. longstanding LRA by adding unions and employers’ to be preferred. Tel: 031 536 8500 or on
a secret and recorded ballot as organisations as to the period Email: arocher@coxyeats.co.za;
[18] That being so and for follows: within which the amendment [23] The Labour Court shansjee@coxyeats.co.za
the reasons set out above I am “Amendment of section 95 of to their constitution is to thus erred in reaching the Website: www.coxyeats.co.za
satisfied that in the absence of Act 66 of 1995, as amended by be effected, in compliance
a secret ballot the respondents section 18 of Act 12 of 2002 with the procedures set out in
are not entitled to engage in the Section 95 of the principal Act the amended constitution.
strike and I grant the following is hereby amended—
order: (2) Until a registered
a) In the absence of the first b) by the addition of the following trade union or employers’
organisation complies with
respondent having conducted subsection: the directive made in terms
a secret ballot as required by ‘‘(9) For the purpose of of subsection (1)(b) and the
section 19 of the Labour subsection (5), ‘‘ballot’’ includes requirements of section 95(5)
Relations Amendment Act 8 any system of voting by (p) and (q) of the Act, the
of 2018, in both matters, the members that is recorded and in trade union or employer
respondents are interdicted secret.. organisation, before engaging
from engaging in the current in a strike or lockout, must
strikes.” Amendment of section 99 of conduct a secret ballot of
On 4 June 2020, the Labour Act 66 of 1995 members.
Appeal Court (LAC) in NUMSA Section 99 of the principal
v Mahle Behr SA (Pty) Ltd and Act is hereby amended by the The supremacy of the
the Association of Mineworkers substitution for paragraphs Constitution has long seen our
and Construction Union (b) and (c) of the following courts reluctant to limit the Bill
(AMCU) (DA08/2019) found paragraphs respectively: of Rights in the interpretation
that it was not necessary for a of the law, and where an
union to conduct a secret and ‘‘(b) … and interpretation that better
recorded ballot before calling its (c) the ballot papers or any promotes the preservation of
members out on strike. the Bill of Rights exists, that
documentary or electronic interpretation will be preferred
record of the ballot for a period
Why was this godsend of three years from the date of over one which derogates from
judgment of the Labour Court every ballot.’’. a right enshrined in the Bill of
reversed? Rights.

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