Minister of Labour’s pre-strike ballot guidelines are invalid, rules High Court

The Pretoria High Court has struck down “guidelines” for pre-strike ballots issued by the Minister of Labour. Archive photo: Ashraf Hendricks

• AMCU has successfully challenged pre-strike guidelines issued by the Minister of Labour in 2019.
• Unions that don’t change their constitutions according to the guidelines face deregistration.
• AMCU argued that the amended Labour Relations Act did not give the minister the power to dictate to unions how to word their constitutions.
• The court agreed that the minister overstepped her authority and ordered the state to pay the union’s legal costs.

The Association of Mineworkers and Construction Union (AMCU) has successfully challenged pre-strike ballot guidelines issued by the Minister of Labour.

In 2018, the government enacted various amendments to the Labour Relations Act (LRA). One amendment states that the constitution of every registered trade union must include a clause requiring the union to conduct a secret and recorded ballot before instituting a strike. The amendment also states that the Registrar of Labour must issue directives to registered trade unions to amend their constitutions to require a secret and recorded pre-strike ballot.

In 2019, then Minister of Labour Mildred Oliphant issued guidelines to give effect to the amendment. The purpose of the guidelines is to assist the Registrar of Labour to determine whether a union’s constitution adequately provides for a secret and recorded pre-strike ballot in compliance with the LRA amendments.

Should an amended union constitution not comply with the guidelines, or should a union fail or refuse to amend its constitution, the Registrar of Labour can take steps to have that union deregistered. Unions have already faced deregistration for not timeously or adequately amending their constitutions to give effect to this LRA amendment.

A deregistered union cannot represent its members in the CCMA or Labour Court, apply for membership of a bargaining council, authorise a protected picket in support of a strike, or conclude a collective agreement with an employer over terms and conditions of employment.

Employers can also cancel collective agreements with deregistered unions that authorise them to exercise organisational rights in the employer’s workplace – such as the recognition of shop stewards or monthly stop order facilities for union subscriptions. The withdrawal of stop order facilities can have a serious impact on a union’s financial stability.

Similar pre-strike ballot requirements existed under the apartheid era LRA but were scrapped when the new LRA was drafted in the mid 1990s.

During apartheid, pre-strike balloting was strongly opposed by unions because it was viewed as a mechanism for employers and the government to suppress legitimate union activity and strike action. The trade union movement has expressed similar opposition to the reintroduction of pre-strike balloting in the 2018 LRA amendments.

The National Union of Metalworkers of South Africa (NUMSA) sees the reintroduction of pre-strike balloting as an attempt by the government to undermine the constitutional right of workers to strike.

The South African Federation of Trade Unions (SAFTU) organised a national protest in April 2018 to pressure Parliament to reject the amendments.

Despite opposition, the 2018 LRA amendments reintroduced pre-strike balloting albeit that it was watered down.

Pre-strike ballot guidelines declared invalid

Shortly after the guidelines were issued, AMCU started proceedings in the Pretoria High Court to have the guidelines declared unlawful and set aside.

AMCU argued that the guidelines were unlawful and invalid because firstly, the minister relied on the wrong section of the LRA in issuing the guidelines, and secondly, the guidelines issued by the Minister were not actually “guidelines” but written in such a way as to require unions to amend their constitutions with specific wording or face deregistration.

AMCU argued that the amended LRA did not authorise the minister to dictate to unions how their constitutions should be amended.

Also, the guidelines unlawfully interfere with the right of registered trade unions to determine and regulate their own affairs, AMCU’s lawyers argued.

Judge Nicolene Janse van Nieuwenhuizen agreed with AMCU. The minister’s failure to rely on the correct section of the LRA meant the guidelines were invalid.

The court found that the amended LRA did not authorise the minister to infringe on the rights of trade unions to regulate their own affairs and dictate how their constitutions should be amended, but only authorises the minister to issue guidelines.

The court ordered the minister to pay AMCU’s costs in pursuing the case.

However, while this is a significant decision for trade unions opposed to pre-strike balloting, it is likely that the minister will issue guidelines in the future to give effect to the 2018 LRA amendment for pre-strike balloting. It is also likely that the Registrar of Labour will continue to act against unions who have not amended their constitutions to comply with the amended LRA.

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