Abstract:
The Labour Relations Act 66 of 1995 (LRA) was amended at the beginning of 2019 to encourage
trade unions to include a provision in their constitutions requiring a strike ballot. The transitional
arrangements contained in the Labour Relations Amendment Act 8 of 2018 direct that in the
absence of such a provision in any trade union’s constitution, the trade union “must” conduct
a secret ballot prior to the strike. The LRA contains seemingly contradictory provisions in this
regard. Based on the transitional arrangements, the Labour Court has issued interdicts against
strikes on a number of occasions based on the absence of secret ballots. However, in National
Union of Metalworkers of South Africa v Mahle Behr SA (Pty) Ltd, Murphy, Acting Judge of
Appeal of the Labour Appeal Court, overturned these decisions and held that the absence of a
secret ballot has no influence on the protected or unprotected status of a strike. This decision
brings much needed certainty regarding the interpretation of the LRA. However, the question
remains whether this decision was arrived at correctly and whether it has resolved all
outstanding issues regarding strike ballots. In this contribution I argue that the Labour Appeal
Court came to the correct conclusion, but I also identify outstanding questions regarding secret
ballots and suggest a number of solutions to these problems.
