Article 60/2022

Section 19(1) of the Labour Relations Amendment Act 8 of 2018 requires the Registrar of Labour Relations to perform two tasks in relation to a trade union whose constitution does not already provide for a recorded and secret ballot to be held before a strike, namely, firstly, consultation with the union’s office-bearers and, secondly, after such consultation, the issuing of a directive regarding the inclusion of the balloting requirement in the union’s constitution.  What was the recent viewpoint of the labour appeal court as to whether or not there is an obligation on a trade union to amend its constitution so as to incorporate the required balloting provisions until the aforesaid consultation has taken place and until the directive has been issued?  What is the recent viewpoint of the labour appeal court as to whether or not there is an obligation on such union to hold a secret ballot until such consultation and directive have occurred?

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In National Union of Metalworkers of South Africa and Others v M Mahle Behr SA (Pty) Ltd (2020) 31 SALLR 146 (LAC); (2020) 41 ILJ 2093 (LAC), the labour appeal court recently adopted the following approach:

  • NUMSA’s constitution did not contain a provision requiring it to hold a recorded and secret ballot before calling a strike, nor had it balloted its members before calling them out on strike
  • the labour court, however, found that NUMSA was required to hold a secret ballot before embarking on the strike, which rendered the strike in casu unprotected
  • the failure by a registered trade union or employers’ organisation to conduct a ballot in terms of its constitution does not have any impact on the protected nature of a strike or lock-out;
  • s67(7) of the LRA provides:

‘The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.’

  • the trigger for the application of s39(2) of the Constitution is whether the provision in question implicates or affects a right in the Bill of Rights. The present matter implicates the right to strike entrenched in s23(2)(c) of the Constitution. Hence, s19 of the LRAA must be read purposively in the light of the relevant provisions of the Constitution, and, if there is an interpretation of s19 of the LRAA that better promotes the preservation of the right to strike, that interpretation ought to be preferred
  • s19(1) of the LRAA imposes an obligation upon the registrar to perform two tasks in respect of registered trade unions and employers’ organisations that do not provide for recorded and secret ballots in their constitutions. Firstly, he is obliged to consult with the national office bearers of those unions and employers’ organisations on the most appropriate means to amend their constitutions so as to comply with the requirement of s95 of the LRA to provide for a recorded and secret ballot in its constitution. And, secondly, once having held the consultations in question, to issue a directive to those unions and employers’ organisations as to the period within which an appropriate amendment to their constitutions must be effected in compliance with the procedures set out in the amended constitution. The directive must tell the union or employers’ organisation how its constitution must be amended and must state the period within which the amendment must occur. In this regard, it is important to note that s101 of the LRA imposes certain formalities in respect of changes to the constitution of trade unions and employers’ organisations
  • s101 provides inter alia that a registered trade union or a registered employers’ organisation, which has resolved to change or replace its constitution, must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution. On receipt, the registrar must register the changed or new constitution if it meets the requirements for registration and send the registered trade union or registered employers’ organisation a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered. The changed or new constitution takes effect from the date of the registrar’s certification
  • it is clear from the wording of s19(1)(b) of the LRAA that, until consultation has taken place with a trade union’s national office bearers and a directive is issued, no obligation arises on the part of unions or employers’ organisations to amend its constitution in the manner contemplated. The duty cast upon the trade union is not to amend its constitution in a manner it deems fit in order to comply with the new definition of ‘ballot’ in s95(9) of the LRAA, but to comply with the registrar’s directive as to the appropriate means, period and procedures to amend the constitution
  • s19(2) of the LRAA provides that, until a registered trade union or employers’ organisation complies with the directive made by the registrar in terms of s19(1)(b) of the LRAA and the requirements of s95(5)(p) and (q) of the LRA, the trade union or employers’ organisation must, before engaging in a strike or lockout, conduct a secret ballot of members. Hence, it is clear, the obligation to conduct a secret ballot of members in terms of s19(2) of the LRAA arises only once a directive in terms of s19(1)(b) of the LRAA has been issued by the registrar, pursuant to consultations as envisaged in terms of s19(1)(a) of the LRAA. In addition, and as the heading to the section indicates, s19(2) of the LRAA is transitional in nature. It operates once the registrar issues a directive to a union to make the necessary amendment regarding recorded and secret ballots and pending the adoption of the amendment
  • the labour appeal court came to the following factual conclusion: there was no evidence that the registrar had consulted with NUMSA officials to amend its constitution and that he issued a directive; consequently, there was no independent duty on NUMSA to amend its constitution and, also, there was no independent requirement to hold a secret ballot.  Finally, it was found that the labour court incorrectly held that NUMSA was obliged to conduct a secret ballot in compliance with s19(2) of the LRA Amendment Act 8 of 2018

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.