LAC confirms no ballot needed before strike - NUMSA

Irvin Jim says appeal court overturnd two incorrect judgments by Judge Gush


15 June 2020

The National Union of Metalworkers of South Africa (NUMSA) welcomes the decision of the Labour Appeal Court which found in favor of the union on the issue of compulsory balloting before a strike. The appeal court found that NUMSA is not required to hold a secret ballot before engaging in protected strike action.

The appeal court overturned two incorrect judgments by Judge Gush of the Labour Court in KwaZulu-Natal where the Judge wrongly interdicted two strikes involving the union, in March 2019. The application to interdict the strikes were brought by two companies, Foskor and Mahle Behr in KwaZulu-Natal. The strikes started a week apart in both companies, and it just so happened that in both cases they centered on the question of compulsory balloting before a strike. It was the first test case of the amendments to the Labour Relations Act, forcing unions to ballot workers before a strike. When the matter was heard at the Labour court Judge Gush granted the interdicts to both companies on the basis that we had not balloted before the strike. However, that decision has now been overturned by the LAC. The judgement found that he misunderstood the LRA Amendments of 2018 and unjustifiably limited our right to strike.

The Labour Appeal Court (LAC) found that a secret ballot was not required because the registrar had not consulted with NUMSA and had not issued any directive to it to amend its constitution to provide for a secret ballot. This is a significant victory for NUMSA and the working class. It basically means that until the Registrar complies with the terms of section 19 of the LRA, members of the South African working class may embark on strike action without being forced to ballot first.

This was not the only victory. Subsequent to the strike action at both these companies, we made significant gains for our members at both companies in the following ways:

At Mahle Bher the company had initially refused to implement a transport allowance. Because of the strike, we were able to negotiate an increase in transport allowance, and we were able to negotiate a compact agreement and recognition agreement. As NUMSA we are now part of the company’s Steering committee where we are able to assess its performance. Following a private mediation process, we were also able to secure increased shift allowance, and we have since strengthened the relationship between the company and the union.

At Foskor, workers were striking over profit sharing. As a result of the demands, the management eventually succumbed and they paid the profit share. The company agreed to comply with pay progression, taking workers from the lowest pay to the next level (from minimum to medium), and now they earn more. The second issue was over the ownership scheme, the company was refusing to pay a cent. After the strike they paid R7000 per worker. Furthermore, there were serious health and safety issues at Foskor. Three employees died in accidents before the strike. We won the right for a private health and safety official to inspect the company and to ensure that workers are safe. There was also looting and theft in the company, and because of pressure by our members we managed to negotiate with the employer for a Private Investigator to be appointed to investigate allegations of corruption as raised by the workforce.

We won on the issue of the right to strike, and we won on the demands of workers. This is truly a victory for our members and for the working class at large. This victory has inspired us to work even harder to defend the interests of workers and their families.

Aluta continua!

The struggle continues!

Issued by Irvin Jim, NUMSA General Secretary, 15 June 2020