Transnet’s 11-day strike came to an end on October 17 when the United National Transport Union (Untu) signed a three-year wage deal: a 6% increase for 2022-23; 5.5% for 2023-24 and 6% for 2024-25. Workers also benefited from corresponding increases in their medical aid and housing allowances.
The South African Transport and Allied Workers Union (Satawu), the minority union, tried to hold out longer for an amount above inflation (7.6%), preferably in double digits, but had little choice, as Untu represented the majority of workers and the agreement was extended to Satawu as provided for in section 23(1)(d) of the Industrial Relations Act.
As the strike ends, the crippling effect on the economy, especially in hubs focused on port activities in Durban, Richards Bay, Gqeberha and Cape Town, will be felt for much longer. The chief executive of the South African Freight Forwarders Association, Dr Juanita Maree, estimates that the strike cost R7bn in logistics costs and that restoration of normal function “will only happen in early 2023”.
He estimated that South Africa missed an opportunity to move R65.3 billion worth of goods. Neighboring ports in Namibia and Mozambique have picked up new business and may reap the benefits of continued trade in the future.
The South African Minerals Council estimates the strike cost its members some R815 million a day in export earnings. Simply put, Transnet was unable to transport and load around 370,000 tons of iron ore, coal, and manganese onto ships for international markets.
Timber and paper producer Sappi and automaker Toyota have written to the Durban Chamber of Commerce and Industry expressing concern about the negative impact of the strike on their businesses. Berry growers in the Western Cape feared the loss of 30,000 livelihoods due to delays in exporting berries from the Cape Town port.
Because Transnet manages and controls South Africa’s rail network and freight ports, businesses that rely on those services have been severely affected. We know that strikes are designed to inflict damage on employers, to force their agreement on higher wages and better benefits.
But this strike had a much broader ripple effect at the heart of key industries that had no employment relationship with Untu and Satawu members, but bore the brunt of the devastating impact of workers withdrawing their workforce.
In November 2018, the then labor minister, Mildred Oliphant, published the Industrial Relations Amendment Act, which provided for unions to amend their statutes to include a secret ballot before going on strike. Subsequently, the minister issued guidelines for holding a secret ballot.
Those guidelines were published in December 2018 and provided for reasonable notice to members (three days), clear wording of the question to be voted on, a voting list of members, tellers, and tally. Interestingly, nowhere do the guidelines require majority support before a strike can be launched.
In December 2018, the minister issued a new code of good practice called Collective Bargaining, Industrial Action and Picketing, which sought to encourage orderly collective bargaining and prevent prolonged and violent strikes. The impetus for this code came primarily from the tragic events at Marikana and the strike in the gold and platinum mining industry that turned violent.
One of the initiatives was to force unions to ensure that their statutes provided for a secret ballot before going on strike. This would go some way towards gauging members’ appetite for strike action, and reduce coercion to force reluctant workers to put down tools. Section 95(9) of the Labor Relations Act clarifies that voting must be recorded and secret. Section 99(c) requires unions to maintain ballot records for a period of at least three years.
The Labor Relations Amendment Act contained a transitional section that required the labor relations registrar to commit to unions to amend their bylaws and issue directives in this regard. The transition period was six months, until the end of June 2019. Until the registrar issued the directive, presumably until June 2019, unions were required to hold secret ballots to assess their members’ desire to strike.
It would appear that the clear intention of the legislature was to force unions to hold secret ballots before going on strike. But the courts disagree with this intention. In June 2020, the labor appeal tribunal in a case brought by the South African National Union of Metalworkers held that a union is not required to change its constitution until instructed to do so by the registrar. In other words, if the registrar has not issued such a directive, then a union can sit in their collective hands and evade their statutory obligations.
The position that the failure to hold a secret ballot does not make a strike illegal was taken by Untu in an urgent injunction request filed by Transnet in the labor court on October 7, 2022. Transnet questioned the legality of the strike on the basis of the absence of secrecy when Untu voted for its members.
The views of individual Untu members were clearly identified during the voting process, as after checking “accept” or “reject” (in support of the strike), they provided their names, cell phone numbers, identification numbers, and They indicated the department in which they were. work. It is simply unbelievable that a strike that causes massive damage to the economy could be led by a union that has not held a secret ballot of its members.
It is true that the right to strike is protected in the Constitution. That right is expressed in the Labor Relations Law, but it is not an unlimited right. For example, workers in essential services cannot go on strike. The law goes as far as section 67(7) to protect striking members who have not complied with the voting provision in their union constitution.
Non-compliance does not affect the legality or protected nature of the strike, and therefore the question must be asked: why the legislative efforts to force unions to hold a secret ballot in the first place, if non-compliance is not found? with no penalty?
It would appear that there are material gaps in our law that require intervention and clarity. First, if the unions have not amended their bylaws to provide for the secret ballot before the strike, are they exempt from the general idea and purpose of the legislative amendments made in late 2018 and 2019? Probably not.
Second, shouldn’t there be a provision requiring majority support for a strike before a union takes such action, taking into account in particular the economic damage such action causes? Arguably so: the requirement to obtain a majority in a secret ballot should be necessary. Interestingly, collective bargaining in the Labor Relations Act is based on the principle of majoritarianism: why has the legislature chosen to ignore this principle in ballots and strikes? Has no sense.
Third, is the protection afforded to a strike that occurs in breach of the secret ballot requirement reasonable and rational? Arguably not.
It would seem that at this stage of our law, the interests of employees and their unions, on the one hand, and employers and our fragile economy, on the other, are not fairly weighed. Where to strike a fair balance has yet to be determined.
Dawn Norton and Luke Lagesse are employment lawyers at Mkhabela Huntley Attorneys.