In the space of a year, three notable strikes have affected the interests of the South African public.
The right of employees to unionise and bargain collectively with their employers for higher wages and better working conditions is a cornerstone of South Africa’s democracy. It is a right reinforced by the right to strike and one which is entrenched in the Constitution and, more prominently, in the Labour Relations Act (LRA).
Strikes are the ultimate weapon for employees to exert their economic muscle in the work-wage exchange. It is an intrinsic feature of strikes that they cause financial harm to the employer. But in the preceding year, three strikes arising from wage disputes have exceeded the bounds of harm to the employer (the state) and have impacted on the legitimate interests of the South African public.
In October 2022, Transnet workers in port and railway operations embarked on an 11-day strike spearheaded by their representative unions, the United National Transport Union and the South African Transport and Allied Workers Union.
The industrial action crippled the businesses that use the country’s ports and freight rail networks. Key industries (such as coal, iron ore and fresh produce), with no relationship to Transnet employees, were critically affected by workers withdrawing their labour power.
Four months later, in February 2023, public servants in the department of public service and administration embarked on a week-long strike organised by the National Education, Health and Allied Workers’ Union. The strike affected South Africa’s biggest hospitals. It was marred by acts of violence and intimidation, the barricading of hospital entrances, the prevention of oxygen deliveries and the obstruction of urgent and necessary medical services to patients.
Fast forward to the end of July 2023, when City of Tshwane employees affiliated with the South African Municipal Workers’ Union embarked on unprotected strike action triggered by the city’s failure to implement the final year of a three-year wage agreement, citing their precarious and constrained financial position.
The city promptly imposed a “no-work-no-pay” policy and went on to apply for exemption from the wage agreement from the South African Local Bargaining Council, which was ultimately dismissed and is now the subject of an appeal lodged by the city.
The demonstrations quickly spiralled out of control and impacted the delivery of basic services, including waste and refuse collection and bus transport. Some licensing centres, fire stations, disposal facilities and customer-care walk-in centres were closed during the protests. Clinics were forced to close under the threat of violence, denying patients access to primary healthcare services and life-saving medication.
Non-striking workers were intimidated with death threats; one was shot and hijacked; buses were pelted with stones and vandalised and four city vehicles were torched. A group of employees were arrested and charged with public violence.
Despite the labour court granting an interim interdict against striking employees, declaring the strike action unlawful and unprotected, and ordering the striking employees to disperse, demonstrations, violence, destruction, vandalism and intimidation continued as a wave of lawlessness washed over the city, plunging it into a deeper financial crisis.
The city’s leadership called on the Tshwane Metro Police Department to square off with their own colleagues in an effort to keep service delivery going and to protect property and the safety of employees who wanted to continue with their work duties.
When the dust had settled, the city had dismissed at least 123 employees for misconduct perpetrated during the strike and for failing to return to work despite the ultimatums issued to them. The MMC for Community Safety condemned the violent outbreaks and incidents that brought service delivery in the city to a standstill and summed up the escalation of violence as a “well-co-ordinated criminal attack against the city”.
There are three common features in the Transnet, health sector and Tshwane strikes. First, all affected the public, who are not party to any employment relationship with the striking workers. Second, the strikes were accompanied by violence and intimidation (admittedly less so in the Transnet strike). Third, none of the strikes were preceded by a secret vote (ballot) of their members.
The Transnet strike compromised livelihoods and the public health sector and the Tshwane strikes compromised lives and service delivery. The strikes transgressed the boundaries of economic pressure and more closely resembled an extortionist chokehold, pressurising the state to accede to union demands, or else.
It is noteworthy that the majority of strikes in South Africa are unlawful. According to the department of employment and labour’s latest research, 61% of strikes, most of which occur in the public sector, are unprotected, meaning that they commence without following elementary procedures requiring a referral to the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council; conciliation (or the passing of 30 days) and a notice to strike (48 hours in the public sector and seven days for the state).
A nationwide strike landscape characterised by unacceptable levels of unprotected industrial action and unlawful acts in support of it, including violence and intimidation, was recognised as problematic by the department over a decade ago, when the 2012 Labour Relations Amendment Bill was tabled in parliament.
The bill’s proposed amendments, which ultimately never saw the light of day, sought to introduce procedural requirements for protected strike action, including majority support by members in a ballot and certification by the CCMA, bargaining council or accredited agency that the union’s balloting provisions were in order.
After growing concerns about protracted and violent strikes, the balloting requirement was re-visited in the Labour Relations Amendment Act of 2018. The amendments introduced (for the first time) the requirement that the ballots conducted before calling a strike be secret. Curiously, there was no mention of the need for majority support before a strike could proceed.
Importantly, there were also transitional provisions requiring the registrar of labour relations to consult national office bearers of trade unions on means to amend their constitutions to comply with these provisions, and to issue a directive to the unions on the time period to do so.
Finally, until such time as there had been compliance with the directive, trade unions were required to conduct a secret ballot of members before engaging in strike action.
After the 2018 amendments, the minister of labour issued guidelines on balloting for strikes. With respect to the guidelines the following applied: three days’ notice of the intended ballot, clear wording on the ballot, scrutineers, sealing of boxes and keeping the papers for at least three years.
The minister also gazetted a new Code of Good Practice, called Collective Bargaining, Industrial Action and Picketing. The introductory items of the code acknowledged the detrimental effects of strikes on “the striker, the families of the strikers, the small businesses that provide services in the community to those strikers, the employer, the economy and community” and that “serious measures are needed to induce a behaviour change in the way that trade unions and employers and employer’ organisations engage with each other in the pre-negotiation, negotiation and industrial action phases of collective bargaining”.
The practice of balloting has not only been undermined by the lack of a system of enforcement within the LRA itself (section 67(7) protects a union in cases in which they have failed to follow the procedures in their own constitutions) but also by decisions of our courts.
In mid-2020, the labour appeal court held that a strike embarked upon by the National Union of Metalworkers of South Africa (Numsa) without conducting a secret ballot was acceptable, finding that Numsa was not required to effect a secret ballot until the registrar had issued the union with a directive to amend its constitution to include such a procedure, which he had not done.
The court explained that the dispute concerned the constitutional right to strike and that the transitional provisions in the amendment act should be interpreted restrictively, to preserve this right. In the court’s view, the obligation to conduct a secret ballot of members arose only once a directive had been issued by the registrar.
A year later, in April 2021, the Pretoria high court considered the minister’s guidelines on balloting. The case was the Association of Mineworkers and Construction Union versus Minister of Labour. The high court agreed with the union that while the minister may issue guidelines, the minister was not entitled to impose mandatory obligations on trade unions. The minister had acted outside his powers, said the high court, which promptly set the guidelines aside.
The legislative efforts by parliament to raise the procedural bar before strike action may commence have largely come to nought. It is arguable that parliament needs to revisit the situation, to address the problem of widespread, unlawful and violent strike action.
Foreign jurisdictions have made pre-strike balloting a procedural requirement for protected industrial action. The labour laws of England, Australia and Canada all outline, in their own nuanced ways, pre-strike balloting mechanisms that require majority support from employees eligible to vote before a strike becomes protected. Each one of these jurisdictions requires the ballot to be secret. Independent scrutineers of the balloting process are required in the UK and Australia.
The consensus among commentators who have observed the effects of a balloting regime in these jurisdictions is that although balloting increases the administrative and procedural burden on unions, and could serve to delay strike action, there are noteworthy benefits, including unionism that is more responsive to their members views, and credible balloting results which force employers to take stock and return to the bargaining table with verve, to conclude an agreement and avert strike action.
Ultimately, the balloting regime in these jurisdictions is not a tool used to suppress legitimate strike action or undermine the right to strike but a mechanism designed to promote responsible unionism that accepts valid constraints on collective action.
Overall, it would seem that the legislative intent to compel unions to canvass their members before embarking on strike action has failed to gain traction and courts have avoided making any orders that encroach on the right to strike.
However, no right in our Constitution is absolute, and it is arguable that considering the compelling public interest factors at stake — for healthcare, access to transport, infrastructure and for service delivery in general — the time is ripe for the introduction of higher procedural thresholds for strike action by requiring majority support for a strike, as indicated in a secret ballot overseen by independent scrutineers trained by the CCMA or IEC, before a strike becomes protected. This might reduce unrestrained labour militancy and take the interests of employers, the economy and citizens into account.
Original post: Mail & Guardian