A legal analysis of South African strike law : the status of the ballot requirement

Abstract: It is trite that the bargaining relationship between the employer and the employee is unequal. This necessitates for employees to embark on strike action in pursuant of their demands in the workplace. The right to strike as guaranteed in the Constitution is however subject to limitations as it may be abused by workers, and often trade union leaders in pursuant of political scores with the management of an employer. Employees may find themselves in the middle of a battle, and in fear of threats and intimidation by powerful trade union leaders, they unwillingly participate in a strike. The result is that while at face value the workers support the strike, it may in fact only be a minority of the workers who support the strike whereas the majority would have voted against it if there had been a secret ballot. The Labour Relations Act 66 of 1995, as amended (1995 LRA) sets out the substantive and procedural requirements for a protected strike. These procedural requirements include conciliation of the issue and dispute giving at least 48 hours’ notice. The substantive limitations for a protected strike include that the strike must not be prohibited or prevented by an agreement or the issue in dispute is one that must be referred to arbitration or the Labour Court (LC). The 1995 LRA requires trade unions to include provisions in their constitutions which make provision for a strike ballot. However, the failure of the trade union to conduct a strike ballot in accordance with their constitution does not affect the legality of the strike. Effectively, trade unions are not statutorily bound by legislation to conduct a ballot prior to embarking on a strike. They are merely bound by their constitutions to which only the members can hold the trade union to account. In circumstances where the trade union’s constitution does not have balloting provisions, the Registrar is empowered to direct the trade union to conduct a secret ballot prior to embarking on a strike and to direct how the constitution should be amended to add a secret ballot provision. A strike ballot has the effect of enhancing democracy in the workplace and ensures that a strike is supported by a majority of employees and thus avoids unnecessary and prolonged strikes. This raises an important question of whether the introduction of a strike ballot as a procedural requirement in section 64 of the 1995 LRA would have the effect of avoiding unwanted, unnecessary, and prolonged strikes. If so, what should be the procedural requirements for conducting a secret ballot prior to commencing with strike action?LL.M. (Labour Law