Earlier this week the Department of Labour issued a warning that if unionised employees go on strike without having conducted a secret ballot, then the strike is illegal.
Along with the National Minimum Wage Act, the secret ballot rule came into effect on January 1 as part of the changes to the Labour Relations Act and the Basic Conditions of Employment Act. This followed an agreement that was reached between government, business and labour at the National Economic Development and Labour Council (Nedlac) in 2016.
Labour lawyer and DA MP Michael Bagraim told Fin24 by phone that the secret ballot essentially brings democracy back in the workplace.
'What it means is, before any company has a strike, members of a union must vote whether they agree or not to go on strike. The company can call the CCMA to chair the ballot," he said.
Bagraim is a member of the portfolio committee on labour.
"Let the people who are going on strike make the decision." he said. "It's very unfair for the union to make the decision."
Companies will be able to tell if their employees are truly unhappy if they vote in favour of striking, he said.
The Department of Labour, in a statement issued on Monday, said that without the secret ballot, it is illegal to embark on a strike. The department said unions had been accommodated to give them time to make the necessary changes in their constitutions.
The office of the Registrar of Labour Relations said it has been engaging with the relevant stakeholders in information sessions.
Registrar of Labour Relations Advocate Lehlohonolo Daniel Molefe said "balloting was now part of legislative framework and needs to be respected". The registrar may deregister or cancel registration of the parties which do not comply with the law.
The Congress of South African Trade Unions, however, called the labour department's statement "factually devoid" for saying that a strike is illegal if it is conducted without balloting. Parliamentary coordinator Matthew Parks said in a statement that all South Africans have a Constitutional right to strike and that it is not illegal like murder or theft.
"South African law does not allow for the police to arrest anyone for simply being on strike, protected or unprotected," Parks said. "Striking is not a criminal offence. This is 2019, not 1976. Workers do not need government nor the employer's permission to strike."
Unprotected vs. illegal strikes
He said that if workers embark on an unprotected strike, which means they failed to get a certificate from the CCMA indicating that no resolution was reached in negotiations with employers, then they are at risk of getting dismissed by their employer. Workers participating in a protected strike cannot be dismissed by their employer. A strike is protected after a secret ballot is held, with workers voting for a strike to take place. Forty-eight hours' notice of the strike must be given to employers.
Parks called for the labour department to retract its statement. "For workers this is an emotional issue. It is extremely irresponsible for the Department of Labour to have issued such a dangerous and reckless statement stating that unballoted strikes are now illegal."
Cosatu said most of its unions have implemented secret ballots ahead of strikes.
The South African Federation of Trade Unions, however, is opposed to secret balloting and plans to challenge it at the Constitutional Court.
General Secretary of Saftu Zwelinzima Vavi said the ballots are an attempt "to stifle the rights of workers to struggle for decent wages and working conditions".
The National Union of Metal Workers of South African Irvin Jim has described the labour laws as "draconian".
"We reject attempts by the government and the Department of Labour to tamper with the constitutional right to strike.
"The introduction of compulsory secret balloting before a strike is nothing else but an imposition on the limitation on the right to strike. We are calling on the government to stop this vicious attack against workers," he said in a separate statement.
Bagraim, however, said that the two federations' differences are political. Cosatu and two other federations, Fedusa and Nactu, were part of discussions at Nedlac that led to the National Minimum Wage and Labour Law agreements.
Saftu is not part of Nedlac and has therefore always been on the opposing side, Bagraim said.