Investigating the Need to Reintroduce a Ballot Requirement for a Protected Strike in South Africa

Abstract

The issue of violent and protracted strikes has been a source of debate on many labour platforms in South Africa. Unions believe that if a ballot is introduced as one of the requirements for a protected strike in South Africa, it will be abused by employers and manipulated as was the case under the old Labour Relations Act. A counter- argument is that no one can take away a right in the Bill of Rights unless the prescribed procedure in the Constitution is followed. A right in the Bill of Rights can also not be limited unless the limitation is in terms of section 36 of the Constitution. Of particular importance to this issue is not the number of strikes in South Africa but their nature (which has been violent) and their duration (which has been unreasonably long). The violent nature of strikes is a major concern for employers, society and non-striking employees. Violent and lengthy strikes are dangerous to both employers and employees. The employer suffers loss of profit and loss of clients with the possibility of reducing its workforce or closing its business. Employees, on the other hand, face retrenchments if the business is not making a profit. The article argues that the reintroduction of a ballot requirement will play a meaningful role in reducing the number of strikes and their duration. Balloting employees prior and during the course of a strike will help test whether employees have the appetite for the strike. The article further argues that if long strikes can be reduced through ballots, dismissal on the basis of operational requirements could be avoided. In the long run, poverty arising from high levels of unemployment could be avoided.