Vonnisbespreking : Stakingstemmings : oplossing en raaisels deur die Arbeidsappèlhof National Union of Metalworkers of South Africa v Mahle Behr SA (Pty) Ltd (Association of Mineworkers & Construction Union as Amicus Curiae) 2020 41 ILJ 2093 (AAH)

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.