The High Court recently set aside guidelines issued by the Minister of Employment and Labour on balloting for strike action on the grounds that they were ultra vires
On 9 December 2018, the Minister of Employment and Labour gazetted the Guidelines on Balloting for Strikes or Lockouts* (guidelines). The guidelines, which became operational on 1 January 2019, provide that ballots before strike action must be conducted in line with the Labour Relations Act 66 of 1995 (LRA) and the trade union's constitution. They also detail procedures that "should be followed when conducting a secret ballot". Although guidelines are not strictly binding in law, these particular guidelines are drafted in a peremptory manner. Examples of peremptory language used in the guidelines include:
Paragraph 9.1: "Reasonable notice must be given to members of a ballot... "
Paragraph 9.2: "The notice must specify the time and place of the ballot."
Paragraph 9.3: "The question that is the subject of the ballot must be clearly phrased and must be consistent with the terms of the dispute referral."
Paragraph 9.4: "Ballot papers must be prepared in accordance... "
Paragraph 9.5: "Ballots must not contain…"
Paragraph 9.6: "A ballot must be conducted in terms of…"
The Association of Mineworkers and Construction Union (AMCU) recently brought an application in the High Court under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to review the guidelines. Ultimately, in its judgment**, the High Court upheld AMCU's review and the guidelines were set aside. This judgment has significant implications for employers as the effect of the judgment is that the guidelines were set aside. We highlight the key provisions of the LRA and PAJA and summarise the reasons for the High Court's decision below
Key provisions of the LRA and PAJA
Section 95 of the LRA provides for the registration of trade unions or employers' organisations. Section 95(8) provides that the Minister may issue guidelines to be applied by the registrar in determining whether an applicant is a genuine trade union or employers' organisation and guidelines for a system of voting contemplated in section 95(9). Section 95(9) provides that "for purposes of subsection (5), 'ballot' includes any system of voting by members that is recorded and in secret".
Section 95(5)(p) and (q) provides as follows:
"(5) The constitution of any trade union or employers' organisation that intends to register must –
(p) provide that the trade union or employers' organisation, before calling a strike or lock-out, must conduct a ballot of those of its members in respect of whom it intends to call the strike or lock-out;
(q) provide that members of the trade union or employers' organisation may not be disciplined or have their membership terminated for failure or refusal to participate in a strike or lock-out if –
(i) no ballot was held about the strike or lock-out; or
(ii) a ballot was held but a majority of the members who voted did not vote in favour of the strike or lock-out"
Although section 95(5) refers to "trade unions that intend to register", section 19 of the Labour Relations Amendment Act 8 of 2018 introduced the requirement of a secret ballot which provides as follows:
"19. (1) The registrar must, within 180 days of the commencement of this Act, in respect of registered trade unions and employers’ organisations that do not provide for a recorded and secret ballot in their constitutions —
(2) Until a registered trade union or employers’ organisation complies with the directive made in terms of subsection (1)(b) and the requirements of section 95(5)(p) and (q) of the Act, the trade union or employer organisation, before engaging in a strike or lockout, must conduct a secret ballot of members"
(a) consult with the national office bearers of those unions or employers’ organisations on the most appropriate means to amend the constitution to comply with section 95; and
(b) issue a directive to those unions and employers’ organisations as to the period within which the amendment to their constitution is to be effected, in compliance with the procedures set out in the amended constitution.
In order to rely on the provisions of PAJA, AMCU had to show that the guidelines fell within the definition of "administrative action" under PAJA. The High Court found that in issuing the guidelines the Minister performed a public function and, since the guidelines were mandatory, they adversely affected AMCU's power to regulate its own affairs. The High Court was therefore satisfied that PAJA applied to the relief claimed by AMCU.
High Court judgment
AMCU advanced a number of grounds of review in its application. However, the High Court only found it necessary to consider the first ground of review which was based on section 6(2)(a)(i) of PAJA. This section provides for judicial review of an administrative action that was not authorised by the empowering section. In the event that the decision falls outside the scope of the empowering section, the decision is
ultra vires (i.e. taken outside legal power and authority) and stands to be reviewed and set aside. AMCU argued that the Minister acted
ultra vires for two reasons:
(1) The Minister published guidelines in terms of section 95(9) in circumstances where this section does not empower the Minister to issue guidelines. The empowering provision is contained in section 95(8) which provides that the Minister may issue guidelines
(2) The guidelines, particularly in paragraph 9, use peremptory language which does not accord with the term "guidelines" and means that trade unions must comply with these guidelines. This is not in line with section 95 of the LRA
The High Court upheld this ground of review as argued by AMCU and ordered that the guidelines be set side.
It remains to be seen as to whether this decision will be appealed by the Minister. Alternatively, the Minister may publish new guidelines under section 95(8) which will need to be drafted in language that is not peremptory or mandatory in nature. If this happens, it will be challenging for employers to enforce and ensure proper compliance with any new guidelines.