South Africa’s strike law fails to balance competing interests

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The 11-day Transnet strike came to an end on 17 October when the United National Transport Union (Untu) signed a three-year wage agreement – a 6% increase for 2022-23; 5.5% for 2023-24 and 6% for 2024-25. Workers benefited too from corresponding increases to their medical aids and housing allowances. 

The South African Transport and Allied Workers Union (Satawu), the minority union, tried to hold out longer for an above-inflation amount (7.6%), preferably in double-digit figures, but had little option, as Untu represented the majority of workers and the agreement was extended to Satawu as envisaged by section 23(1)(d) of the Labour Relations Act.

While the strike is over, the crippling effect on the economy, especially those hubs centred around port activities in Durban, Richards Bay, Gqeberha and Cape Town, will be felt for much longer. The chief executive for the South African Association of Freight Forwarders, Dr Juanita Maree, estimates that the strike cost R7-billion in logistics costs and that a restoration of normal function “will only happen in early 2023”. 

She estimated that South Africa lost the opportunity of moving R65.3-billion worth of goods. Neighbouring harbours in Namibia and Mozambique picked up new business, and may reap the benefit of continued trade in the future. 

The Mineral Council of South Africa estimates that the strike cost its members about R815-million a day in export revenue. Simply put, Transnet was unable to rail and load about 370 000 tonnes of iron ore, coal and manganese onto ships for international markets. 

Wood and paper producer Sappi and car manufacturer Toyota wrote to the Durban Chamber of Commerce and Industry expressing their concerns about the negative impact of the strike on their businesses. Berry producers in the Western Cape feared the loss of 30 000 livelihoods because of delays in exporting berries out of the Cape Town port.

Because Transnet manages and controls South Africa’s freight rail network and ports, the businesses that rely on those services were critically affected. We know that strikes are designed to inflict harm on employers, to force their agreement on higher wages and improved benefits. 

Ripple effect

But this strike had a far wider ripple effect into the heart of key industries which had no employment relationship with Untu and Satawu members, yet they bore the brunt of the devastating impact of workers withdrawing their labour power. 

In November 2018, the then minister of labour, Mildred Oliphant, gazetted the Labour Relations Amendment Act, which made provision for unions to amend their constitutions to include a secret ballot prior to embarking on strike action. The minister subsequently issued guidelines for holding a secret ballot. 

Those guidelines were gazetted in December 2018 and made provision for reasonable notice to members (three days), clear phrasing of the question to be voted on, a voters’ roll of members, scrutineers and counting. Curiously, nowhere do the guidelines require majority support before a strike may be undertaken. 

In December 2018, the minister issued a new code of good practice called Collective Bargaining, Industrial Action and Picketing, which sought to encourage orderly collective bargaining and prevent prolonged and violent strikes. The impetus for this code arose principally from the tragic events of Marikana, and strike action in the gold and platinum mining industry that turned violent. 

One of the initiatives was to oblige unions to ensure that their constitutions made provision for a secret ballot prior to embarking on strike action. This would go some way towards assessing members’ appetites for strike action, and coercion to force reluctant workers to down tools would be reduced. Section 95(9) of the Labour Relations Act clarifies that the ballot must be recorded and in secret. Section 99(c) requires unions to keep the records of the ballot for a period of at least three years.  

The Labour Relations Amendment Act contained a transitional section which required the registrar of labour relations to engage with trade unions to amend their constitutions and issue directives in that regard. The transitional period was for six months – up until the end of June 2019. Until the registrar issued the directive, presumably up to June 2019, unions were required to conduct secret ballots to assess their members’ appetite for strike action.

It would appear that the clear intention of the legislature was to compel unions to conduct secret ballots prior to embarking on strike action. But the courts are at odds with this intention. In June 2020 the labour appeal court in a case brought by the National Union of Metalworkers of South Africa held that a union is not obliged to amend its constitution until directed to do so by the registrar. In other words, if the registrar has issued no such directive, then a union may sit on its collective hands and evade its statutory obligations.

The stance that a failure to hold a secret ballot does not render a strike unlawful was adopted by Untu in an urgent interdict application brought by Transnet in the labour court on 7 October 2022. Transnet challenged the lawfulness of the strike on the basis of the absence of secrecy when Untu balloted its members. 

The views of individual members of Untu were clearly identified during the balloting process, as after ticking “accept” or “reject” (in support of strike action) they supplied their names, cellphone numbers, ID numbers, and indicated the department in which they worked. It is simply incredulous that a strike that causes massive harm to the economy may be spearheaded by a union that has not conducted a secret ballot of its members. 

It is true that the right to strike is protected in the Constitution. That right is given expression in the Labour Relations Act, but it is not one which is unfettered. For example, workers in essential services may not strike. The Act goes so far in section 67 (7) to protect striking members who have not complied with the balloting provision in their union’s constitution. 

Non-compliance does not affect the legality or protected nature of the strike and thus the question must be posed: why the legislative efforts in obliging unions to hold a secret ballot in the first place, if non-compliance is not met with any sanction?

It would appear that there are material lacunae in our law which require intervention and clarity. Firstly, if unions have not amended their constitutions to make provision for secret balloting prior to strike action, are they exempt from the overall thrust and purpose of the legislative amendments made in late 2018 and 2019? Surely not. 

Secondly, shouldn’t there be provision requiring majority support for a strike before a union embarks on such action, noting particularly the economic harm such action causes? Arguably yes – the requirement of attaining a majority in a secret ballot should be necessary. Interestingly, collective bargaining in the Labour Relations Act is premised on the principle of majoritarianism – why has the legislature chosen to ignore this principle in ballots and strike action? It makes no sense. 

Thirdly, is the protection afforded to a strike that occurs in the face of non-compliance with the secret balloting requirement reasonable and rational? Arguably no. 

It would seem that at this stage of our law, the interests of employees and their unions on the one hand, and employers and our fragile economy on the other, are not fairly weighted. Quite where to strike a fair balance is yet to be determined.

Dawn Norton and Luke Lagesse are labour lawyers at Mkhabela Huntley Attorneys.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.