The Contested Terrain of Secret Ballots
Authors Emma Fergus & Mario Jacobs
Affiliations: Dr Emma Fergus, Senior Lecturer, Department of Commercial Law, Labour, Development and Governance Research Unit, University of Cape Town; Mario Jacobs, Researcher, Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 757 – 778
The issue of strike ballots, and particularly secret strike ballots, has a charged and controversial history in South Africa. The Labour Relations Amendment Act 8 of 2018 (LRAA 2018) nonetheless introduced a requirement that the constitutions of all registered unions contain provisions providing for pre-strike ballots which should be both recorded and conducted in secret. As was the case prior to the inception of the LRAA 2018, however, the failure of a union to conduct such a ballot is not a basis on which the legality or protected nature of an ensuing strike may be contested. Despite this, the Labour Court has interpreted the transitional provisions (s 19) of the LRAA 2018 as obliging all unions whose constitutions do not incorporate provisions requiring secret strike ballots to conduct such ballots. Strikes may not proceed until this has been done. In this article, we explore the implications of this approach (read with the Guidelines on Balloting which have been issued by the Minister) both at the practical level and for the right to strike. While the court has held that the obligation to conduct a secret ballot prior to a strike does not limit the right to strike, we disagree. Thus, in line with established principles of statutory interpretation we propose an alternative reading of the transitional provisions, which is better aligned with the purposes of the LRA (and its amendments) and the constitutional rights at stake. To the extent that our interpretation places an undue strain on the language of s 19 of the LRAA 2018, we recommend that a limitations clause analysis be conducted or a higher court reviews the Labour Court’s approach.