Johannesburg - A set of labour guidelines viewed by some as the government’s attempt to curtail workers’ right to embark on strikes have been set aside by the North Gauteng High Court.
Passed by then labour minister Mildred Oliphant in December 2018, the guidelines made it illegal for unions to embark on strikes and lockouts before conducting secret voting among members.
The guidelines came into effect on January 1, 2019, giving unions 180 days to amend their constitutions to include secret balloting to test whether members favoured a strike.
At the time, the Labour Department wasted no time in telling unions that they faced deregistration or being placed under administration if they failed to comply.
Most unions took turns bashing the government for what they viewed as an unjustified limitation on the right to strike.
“The capitalist ANC government is once again pandering to white monopoly capital by implementing this law,” said National Union of Metalworkers of South Africa general secretary, Irvin Jim.
But the department maintained at the time that the guidelines had been negotiated at the Nedlac negotiating chamber with unions and employers.
Later in 2019, the Association of Mine workers and Construction Union (Amcu) dragged the Labour Department to the North Gauteng High Court, Pretoria, over the guidelines.
Amcu sought an order declaring the guidelines illegal on the grounds that Oliphant had acted on legislation inapplicable to the passing of guidelines that impose mandatory obligations on unions.
Judge Nicoline Janse van Nieuwenhuizen ruled in the union’s favour in a judgment delivered last week. She set aside the guidelines and slapped the Labour Department with legal costs.
Amcu argued in court that section 95(8) of the Labour Relations Act allowed for the issuing of guidelines, but Oliphant passed the guidelines in terms of section 95(9) of the act.
The contention was that Oliphant empowered herself through inapplicable legislation to introduce guidelines that impose mandatory obligations. She therefore acted without legal authority, Amcu maintained.
State counsel argued that the submissions that Oliphant acted without legal authority were misguided because her predecessor did invoke the contested piece of legislation in issuing labour guidelines.
“The submission does not assist the minister,” said Judge Janse van Nieuwenhuizen. “Section 95(8) does not empower the minister to impose mandatory obligations on trade unions …
“In my view … the guidelines are peremptory and prescribe the manner in which a trade union should conduct a ballot of members before calling for a strike or lock-out.”
Amcu nearly faced trouble for bringing the application a number of months after the guidelines came into force. It pleaded for condonation on grounds that the matter was in the public interest.
Judge Janse van Nieuwenhuizen agreed. The matter should be heard because it was in the interest of all trade unions, she ruled.
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