A critique on strike ballots in South Africa

Abstract

The Labour Relations Amendment Act of 2018 (LRAA) came into force on 1 January 2019, bringing about an amendment to section 95(5)(q) of the Labour Relations Act (LRA). The amendment stated that the "ballot" must now include any system of voting by members of the trade union that is recorded and is in secret. The Department of Labour has cautioned trade unions and employers' organisations to use the 180-day transitional period from the commencement of the LRAA to align their constitutions and provide for balloting, failing which punitive measures may be imposed by the Registrar, including the cancellation of registration, de-registration and the placement under administration of the guilty party. There is, however, currently no express provision that permits that a strike or lock-out may be interdicted because a trade union or employers' organisation has failed to hold such a ballot. However, the amendment, if properly enforced, should bring about a greater form of responsibility and administration prior to strikes. The key focus of this research is to review the pre-strike ballot alignment with the ILO’s norms of freedom of association; to observe the impact of the pre-strike ballot on the constitutional right to strike; to review our case law on pre-strike ballots; to observe if the government is achieving its objectives regarding pre-strike balloting and/or determine if there are any positives objectives.