Bye Bye Secret Ballot Guidelines

The debate concerning the correct interpretation of the ‘secret balloting’ provisions introduced by sections 8 and 19 of the Labour Relations Amendment Act 8 of 2018 (“the Amendment Act”) has already played itself out in the Labour Court and the Labour Appeal Court.

The issue came to a head in the Labour Appeal Court in National Union of Metalworkers of SA & others v Mahle Behr SA (Pty) Ltd (Association of Mineworkers & Construction Union as Amicus Curiae) National Union of Metalworkers of SA & others v Foskor (Pty) Ltd (Association of Mineworkers & Construction Union as Amicus Curiae) (2020) 41 ILJ 2093 (LAC) where the Labour Appeal Court found, inter alia, that a union is only required to hold a secret ballot after that union had received a directive from the Registrar of Labour Relations instructing it to amend its Constitution to that effect

Pursuant to the Amendment Act, the Guidelines on balloting for strikes (“the Guidelines”) were published in Government Gazette No. 42121 R1397 on 19 December 2018. The Guidelines, inter alia, establish a protocol that must be followed by a union when conducting a secret ballot before commencing a strike. The Guidelines also protect union members’ rights should a secret ballot not be supported by the majority of the participating members.

In the recent matter of Association of Mine Workers and Construction Union v the Minister of Employment and Labour (Unreported) (Case No: 78915/2019) ZAGPPHC the Association of Mine Workers and Construction Union (“AMCU”) sought an order reviewing and setting aside the Guidelines in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000, as amended (“PAJA”), alternatively, that the Guidelines be declared inconsistent with the principle of legality.

AMCU’s reason for approaching the Court was that it alleged that the Minister of Employment and Labour did not issue the Guidelines in terms of the empowering provisions of the Labour Relations Act 66 of 1995, as amended (“the LRA”) and thus the Guidelines were defective. AMCU furthermore alleged that the Guidelines were, in reality, a directive as the language contained therein made certain conduct mandatory. This action, AMCU alleged, was also ultra vires and should thus be set aside.

The High Court set out the definition of what constitutes ‘administrative action’ in terms of PAJA which entails two parts (i) the exercise of a public power or performing a public function in terms of legislation; (ii) which adversely affects the rights of any person and which has a direct, external legal effect.

The Court found that the Minister of Employment and Labour (“the Minister”) performed a public function when issuing the Guidelines. The Court also found that the Guidelines are peremptory and prescribe the manner in which a union should conduct a secret ballot and thus the Guidelines do have an adverse effect on AMCU’s rights to regulate its own affairs. Accordingly, the Court was of the view that PAJA did apply to the relief sought by AMCU.

Section 6(2)(a)(i) of PAJA permits a party to take issue with administrative action which falls outside of the scope of the empowering provision, thus rendering it ultra vires. The Guidelines state that they were issued in terms of section 95(9) of the Labour Relations Act 66 of 1995, as amended (“the LRA”). AMCU contended that only section 95(8) empowered the Minister to issue guidelines, not section 95(9). The Court agreed with this submission.

Another issue that arose was the terminology used in the Guidelines. The Guidelines made use of ‘must’ as a descriptor of the conduct required. AMCU contended that this terminology rendered the conduct peremptory rather than guiding in nature.

The Court referred to the well-known judgment of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 SCA where the Supreme Court of Appeal found, in essence, that any provision should be read in its context to determine its true meaning. Therefore, the High Court found that the use of the word ‘must’ implies a mandatory obligation on unions to comply with those guidelines.

The High Court found that section 95(8) of the LRA does not permit the Minister to impose mandatory obligations on unions and thus the obligations created in the Guidelines were ultra vires. Accordingly, the Court set the Guidelines aside.

There is, at this stage, not much scope for ensuring that Unions comply with their own constitutions, particularly in relation to secret balloting. The lack of oversight and accountability of Unions, and their officials, enables conduct that is not conducive to peaceful industrial relations. Many Unions, and particularly smaller ones, are organisationally incompetent and there is often non-compliance with their own Constitutions. The practical effect of the judgment is to once again leave the procedures concerning the conducting of a secret ballot to a union’s internal regulation.

It must be noted that section sections 8 and 19 of the Amendment Act remain in effect and only the Guidelines have been set aside. The Registrar of Labour Relations should now engage in a large-scale engagement process with unions to ensure that unions amend their constitutions to make provision for secret balloting. This will ensure legal certainty and will avoid the current situation where employers and Unions are left in the dark as to whether secret ballots need to be conducted or not in the circumstances.

Written by Courtney Wingfield and Neil Coetzer
 of Cowan-Harper-Madikizela Attorneys

Courtney Wingfield of Cowan-Harper-Madikizela Attorneys
Neil Coetzer of Cowan-Harper-Madikizela Attorneys,