Article 52/2021

Labour Edge

How did the labour court recently, in Mahle Behr SA (Pty) Ltd v National Union of Metalworkers of SA and Others; Foskor (Pty) Ltd v National Union of Metalworkers of SA and Others (2019) 30 SALLR 173 (LC), deal with the pre-strike ballot requirement?


  1. the respondents’ second argument was premised on what they suggested was an issue related to the interpretation of the section. The respondents suggested that the section should be interpreted to mean that the transitional provisions would only apply after the registrar had issued the directive and before there was compliance with the directive;
  2. in interpreting statutes, the court is required to apply the accepted canons of interpretation. In this matter, the labour court was of the view that the provisions of s19 were clear and unambiguous and the court was obliged to give effect thereto;
  3. the purpose of the legislation is clear in that its purpose, inter alia, is to provide that, before a union may engage in a strike, it should conduct a secret ballot of its members. In addition to this provision, and to regulate the interim position, the transitional provisions require the holding of a secret ballot by a union (and employers’ organisation in respect of a lockout) prior to engaging in a strike. The requirement is peremptory and applies only to registered trade unions that do not include in their constitution the requirement of a ballot;
  4. to interpret the section as not applying to the respondents negates any suggestion that the transitional provisions will apply in the interim pending compliance; and
  5. that being so, the labour court was satisfied that the transitional requirements applied to those unions whose constitutions do not provide for ‘recorded and secret ballots’ and that, in the interim, prior to complying with the requirements relating to a secret ballot, they ‘must conduct a secret ballot of members’ before engaging in a strike.

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?