COSATU condemns the false and inflammatory statement issued by the Department of Labour on behalf of its Labour Registrar.The federation equally notes with dismay but is not surprised by the deliberate misinformation that is being spread by SAFTU about workers’ rights to strike and the Labour Relations Act.We reject these statements in the strongest possible terms.
The Department of Labour issued a factually devoid statement indicating
that it is now illegal for workers to embark upon a strike without
balloting. It is shocking that the Department of Labour can issue such a
nonsensical statement that bears no relation to reality or the Labour Relations
There is no such thing in South African law as an illegal strike. The Constitution is explicitly clear,all South Africans have the right to strike. and striking is not a criminal offence. Workers do not need government nor the employer’s permission to strike.
There are two types of strike in South African law. A protected strike and an unprotected strike. For a strike to be protected, the CCMA needs to recognise a labour dispute and issue a strike certificate. If a strike has not received a CCMA strike certificate, then it is unprotected. Workers who embark upon a protected strike cannot be dismissed by their employer for doing so. Workers on an unprotected strike are at risk of being dismissed by their employer.
An illegal act refers to such matters as theft, assault, murder etc. Illegal acts are criminal offences upon which the police are obliged to arrest the transgressors. South African law does not allow for the police to arrest anyone for simply being on strike, protected or unprotected.
The right to strike is a hard-won constitutional right that workers led by COSATU and its predecessor, SACTU, who fought the apartheid regime for decades to achieve. Strikes, the withholding of workers’ labour, is workers’ key weapon in their struggles to improve their wages, conditions, job security etc. COSATU has always and will continue to defend it from any attempt to rob workers of this cherished right.
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. The Minister must intervene and instruct the Department to retract this provocative statement.
The provisions of the Labour Relations Act, its key provisions with regards to strikes and balloting, and related matters include the following:
* For a strike to be protected, a dispute must be lodged with the CCMA and a strike certificate issued.
Additional provisions with regards to unions include:
* Unions must be registered with the Department.
* Unions must have a constitution guiding their affairs.
* Union constitutions must provide for how union leadership will be elected, e.g. elective congresses at regular intervals.
* Union constitutions must include provisions for workers to vote through secret ballots when deciding to embark upon strikes.
* Such balloting is run and managed by the union.
* Such ballots must be kept by unions for 3 years.
* Those unions whose constitutions do not have strike ballot provisions must make such amendments at their subsequent congresses. Transitional provisions have been put in place for this.
SAFTU et al have claimed to allow workers to vote before striking is an assault upon democracy, was negotiated in dark corners and all sorts of other conspiratorial drama. What SAFTU omits to mention is that the strike ballot provisions have been in the LRA since 1995. Many of SAFTU’s own unions have these strike balloting provisions in their constitutions as required by the 1995 LRA, e.g. FAWU. The majority of unions in all four federations have long had strike balloting provisions in their constitutions. Interestingly SAFTU’s General Secretary, in his previous position as COSATU General Secretary frequently applauded the LRA as the most progressive labour relations act in the world.
SAFTU claims these provisions are unconstitutional and has been promising to take the Act to the Constitutional Court for the past 2 years. Yet beyond pontificating in the media, it has yet to submit papers to the Constitutional Court.
The only change made to the strike balloting provision is the clarification in the 2018 LRA Amendment Act indicating that strike ballots must be secret. Even this is not entirely new. The 1995 LRA itself made reference to secret ballots but was vague and not always clear.
COSATU nor the other significant federations FEDUSA and NACTU do not have a problem with balloting their members nor with such ballots being secret.
For most of COSATU’s unions this has always been the case. COSATU unions were founded and are based upon principles of democracy and worker control. The federation is unapologetic about these two fundamental principles because unions belong to workers. Workers must elect their leaders and decide their mandates. South Africa’s democratic ethos is premised upon secret ballots from political party branch meetings, to national elections to even Parliament’s electing and unelecting Presidents.
Perhaps the question should be why are some self-appointed lifetime leaders of unions so allergic to democracy and allowing workers to decide on what they want their unions to do? It can only be leaders who fear democracy, and who wants to exert leadership through violence and intimidation and use workers’ hard-earned membership fees to self-enrich that will be afraid of allowing their members to vote.
COSATU for its part has no qualms and is unapologetic about its support for the principles of democracy and worker control.
Issued by COSATU
Matthew Parks COSATU Parliamentary Coordinator -082 785 0687