Rulings bring clarity to unions that have yet to adopt secret ballot amendments
7 November 2019
Section 23(2) of the Constitution of the Republic of South Africa, 1996 provides that every worker has the right to strike. However, much like other rights, the right to strike is subject to section 36 of the Constitution, which provides that rights in the Bill of Rights may be limited.
Whilst the right to strike has its own internal limitations, borne from the definition of the term ‘strike‘, the right also has procedural limitations borne from section 64 of the Labour Relations Act. This is because the right to strike is not absolute.
The advent of the Labour Relations Amendment Act No. 8 of 2018, which came into effect on 1 January 2019, has created a further limitation to the right to strike by the addition of the requirement for trade unions to conduct a secret ballot vote of its members prior to engaging in strike action. Consequently, this has meant that trade unions would have to amend, to the extent that they don’t already provide, their respective constitution to comply with this new requirement.
Recognising the lull in time until the constitutions of the respective trade unions are amended, the Amendment Act provides for transitional provisions. However, the transitional provisions have begged the question, whether or not they apply as at 1 January 2019 or are only triggered after the registrar has issued a directive for the trade union to amend its constitution.