For five months SA has felt the impact of the strike on the platinum belt. The economy is still experiencing the knock-on effect, and for business, the labour movement and government, the consequences will be far-reaching.

As the strike dragged on, mining companies and the commentators who supported them became more and more insistent that the stoppage was actually not backed by the bulk of the workforce. They claimed that workers kept going for fear of reprisal from ‘hard core’ Association of Mineworkers and Construction Union (Amcu) supporters. Proving this claim has been a different matter entirely, but it has definitely reinvigorated the strike ballot debate.

The reasoning is that many strikes taking place would not have occurred had workers cast a vote. The other major argument for secret ballots is that violence could be curbed if these ‘unpopular’ strikes were prohibited.

Paul Benjamin, a professor at the University of Cape Town’s Institute of Development and Labour Law, recently reviewed SA’s labour institutions for the International Labour Organisation. He questioned the commonplace claim that lack of secret ballots lead to strike violence. ‘Although this argument has been advanced by a wide range of commentators, there is as yet no empirical evidence correlating the level of strike-related violence with the level of worker support for a demand,’ he wrote.

Strike ballots were removed from SA’s Labour Relations Act in 1995. Bringing them back is almost universally endorsed by business lobby groups such as Business Unity South Africa and the South African Chamber of Commerce and Industry, and corporate-friendly think tanks and opposition parties with a liberal outlook. These include the South African Institute of Race Relations, Free Market Foundation, the Democratic Alliance (DA) and Agang SA.

In 2012 the Labour Relations Amendment Bill did try to revive strike ballots – for which the opposition party, the DA, has claimed responsibility. After a long fight in the National Economic Development and Labour Council about this and other amendments, a new version appeared in 2013 with no further mention of ballots. The reappearance of mandatory ballots has been fiercely criticised by the country’s main union federation, the Congress of South African Trade Unions (Cosatu).

Practically, the fear is that compulsory ballots would involve long delays and create new terrain for employers to block strikes with court challenges based on technicalities. This could worsen industrial disputes instead of improving them. It could even stoke more wildcat strikes as protected ones become harder to call out. That is why mandatory ballots were removed from labour law to begin with.

Ballots provide ‘fertile soil for employers to interdict strikes and to justify the dismissal of strikers in strikes that are technically irregular but otherwise functional to collective bargaining’, according to the explanatory memorandum attached to the now-scrapped 2012 Bill. The proposed law, however, claimed to have engineered this danger out of the way. According to the Bill ‘this issue [of litigation on technicalities] is dealt with’ by having independent third parties such as the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining councils that issue certificates of compliance beforehand, which confirm that the ballot is being cast lawfully. Strikes would only be protected if the union ‘has conducted a ballot of its members in good standing who are entitled to strike’ and a majority of those ‘who voted in the election have voted in favour of the strike’.

In the UK strike ballots have earned a ‘very bad name’, says John Brand, a director at Bowman Gilfillan and a dispute-resolution veteran. ‘You have employers launching hopeless interdicts to get interim relief. If you do that as a means to delay a strike, you can almost effectively counter the right to strike,’ he says.

Brand supports the idea of votes, but only if the ‘balloting regime’ is properly designed to regulate strikes, not simply curtail them. Using a credible third party such as the CCMA is critical, he says. While employers should be able to challenge ballots, it should not be easy to do so frivolously.

Another major consideration that the proposed 2012 amendment lacked is the way in which the voting ‘constituency’ and the needed quorum are defined, says Brand.

A simple and possibly arbitrary majority of 50% doesn’t necessarily serve the purposes of a strike ballot. If as much as 30% of workers vote ‘yes’ to a strike, that still indicates major support, he says. You also need the flexibility to rationally define who participates in a vote when the proposed strike affects particular workers. ‘You can’t just introduce ballots – you also need to properly define the workplace.’

‘Employers launch hopeless interdicts to get interim relief. If you do that as a means to delay a strike, you can almost effectively counter the right to strike’

JOHN BRAND, DIRECTOR, BOWMAN GILFILLAN

A problem with introducing mandatory balloting into SA’s labour law is that the legislation already tends to define the ‘workplace’, from a corporate perspective, as being the entire company. In terms of labour concerns and strike ballots, that makes no sense.

‘No one can say ballots would lead to no violence, but the international experience is that it democratises the process and leads to less incidents of violence. If you have strike ballots, with all these caveats, a democratic union should have no problem with it,’ says Brand.

Votes would make no difference to wildcat strikes such as those that laid low the mining industry in 2012 and led to the Marikana massacre. That strike had sprung from unhappiness with the then-dominant National Union of Mineworkers. In the long run better union democracy could stop it from happening again.

Votes would make no difference to wildcat strikes such as those that laid low the mining industry in 2012

There are other nuanced arguments for and against ballots. It’s not always a case of constraining ‘irresponsible’ unions that allegedly work against the wishes of its own members. Despite Cosatu opposing mandatory ballots, a number of its unions actually do voluntarily conduct strike ballots. These include the Southern African Clothing and Textile Workers’ Union (Sactwu), South African Democratic Teachers Union and Communication Workers Union. Sactwu’s voluntary ballots have won praise for achieving union aims without striking.

At a recent public seminar for the so-called Phase 2 of the Marikana Commission of Inquiry, Edward Webster, professor of sociology and research at the Society, Work and Development Research Institute at Wits University argued in favour of ballots, but not necessarily ones enforced by law. According to Webster the question is about how worker solidarity is ‘constructed’. ‘There are two ways of doing it. You can either do it by coercion and violence, or by voluntary, consensual and democratic means.’ He says confidential balloting is ‘quite central’ to this but that it should be contained in the union’s constitution, not the law. ‘They [union members] need to feel they are in control of what is happening inside the union.

‘It is rather puzzling that … to my knowledge there is only one union in SA that has secret balloting in its constitution,’ he said, referring to Sactwu. During Sactwu’s wage dispute last year, 80% of workers wanted to strike after a ballot was done. It helped the union clinch a deal without calling out the strike. ‘It nudges the employer to settle before resorting to a strike – it’s an early warning,’ said Webster.

By Dewald van Rensburg
Image: Mr.Xerty © www.nomastaprod.com