The Labour Relations Amendment Bill was recently debated and passed in the National Assembly and has subsequently been submitted to the National Council of Provinces to be ratified.
The Bill proposes significant amendments to the right of employees to strike, by introducing a new mechanism for strikes to be resolved by an advisory arbitration panel. Such a panel will be led by a commissioner appointed by the Commission for Conciliation, Mediation and Arbitration (CCMA), and will have the power to resolve strike action without the employers being required to engage directly with their dissatisfied employees.
Furthermore, the Bill extends the traditional 30-day conciliation period to maximum of 35 days, consequently delaying strike action and causing much dissatisfaction amongst workers and trade unions.
Another controversial element introduced by this Bill, is the requirement for trade unions to take decisions whether to strike by secret ballot. The Bill defines “ballot” as “any system of voting by members that is recorded and in secret”. This is in stark contrast with the established practice of unions to hold open and relatively informal ballots to take these decisions. It is interesting to note that this “ballot-clause” is included in the constitutions of many trade unions, but has never been enforced by government.
This new proposed procedure surrounding strike actions also confers considerable power on employers to prevent a strike in its entirety. If an employer is of the view that a ballot was improperly conducted, they may apply for an interdict against the strike action before it has even begun.
As demonstrated by the widespread acrimony with which these amendments have been received by workers and unions, this Bill imposes significant restrictions on the right to strike – a remarkable irony in the face of the increased protection afforded to workers by other recent Bills such as the National Minimum Wage Bill. However, when one considers the rather tedious enforcement mechanisms proposed by the minimum wage Bill, it is yet to be seen if the recent changes in the South African labour law landscape are favouring the employee or the employer.