Johannesburg - While business may have lost its fight to gain the power to legally prevent strikes, the Labour Department is now putting the squeeze on unions by using strike ballot provisions that have existed since the dawn of democracy, but haven’t previously been implemented.
The move has riled some unions, particularly Numsa, whose application to extend its scope has been stalled by the department’s demand that the union change its constitution.
The Liberated Metalworkers of SA (Limusa), which was registered with the department last week, told Independent Media that the process had taken longer than expected because it had not known that the government was now implementing the regulations.
The SA Public Service Union (Sapsu), which is registering as a union, confirmed that the department had warned it would not get the go-ahead unless its constitution made provision for a strike ballot.
Section 95 of the Labour Relations Act (LRA), which addresses the registration of unions and employer organisations, says that before a strike or lock-out is called, a ballot has to be conducted to establish how many members favour the action.
It says union or employer organisations may not discipline their members for failing to participate in a strike or lock-out if no ballot is held – or a ballot is held, but the majority votes against the action.
During discussions to amend the LRA this year, business had wanted the law to be changed so that it would be able to stop a strike from going ahead if it believed a ballot was not conducted correctly.
But labour won the round so, as in the past, only union members and the department’s registrar may challenge a strike.
“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 LRA reads.
Thembinkosi Mkalipi, who heads up labour policy and industrial relations at the department, would not be drawn on why the government had failed to ensure that unions’ constitutions were in line with the law. “I don’t want to dwell on why the department didn’t implement it in the past. You can accuse us of not doing our work, but this is how it will be done now,” he said.
While many of South Africa’s unions, such as the National Union of Mineworkers and the SA Democratic Teachers Union, have a strike ballot in their constitutions, the department has, up until now, not made it obligatory.
Some unions are opposed to a strike ballot because they believe that a show of hands is enough to ascertain if their members want to down tools. But now that the department is getting tough, it wants a ballot to be conducted in secret and each member must make their mark on paper if they are for or against the action. The department is attempting to avoid a strike being forced by a minority in a union.
Numsa has said it is consulting its lawyers on the department’s refusal to amend its constitution because of what it has described as “technicalities”. “We are hoping someone will take us to court so it can be tested,” Mkalipi said.
He said the provision for the ballot would apply to any new union, and eventually all unions.
“Our approach is that all new unions have to meet the requirements. And all unions, new or old, who want to change their constitution must comply. Those that exist already and are not amending their constitutions will be given time. The fault also lies with us… it is an issue we will discuss with them,” Mkalipi said.
Unions not only have to have the strike ballot in their constitutions, but also have to stipulate how the votes will be conducted.
Limusa founder Cedric Gina said the ballot would be difficult for the department to police. “I’d like to know how they are going to monitor it. Will there be an attendance register? How will it work?” he asked.
Sapsu national convenor Thobile Ntola said he was not opposed to the ballot, as strikes needed to be decided through a “democratic process”.
Independent Media