A set of labour guidelines viewed by some as the government’s attempt to restrict workers’ right to embark on strikes have been set aside by the Gauteng High Court (Pretoria), says a report in The Star. Passed by then Labour Minister Mildred Oliphant in December 2018, the guidelines made it illegal for unions to embark on strikes and lockouts before conducting secret voting among members. In 2019, the Association of Mine Workers and Construction Union (Amcu) took the Labour Department to the High Court over the guidelines.

Amcu sought an order declaring the guidelines illegal on the grounds that Oliphant had acted on legislation inapplicable to the passing of guidelines that impose mandatory obligations on unions. Judge Nicoline Janse van Nieuwenhuizen ruled in the union’s favour. She set aside the guidelines and slapped the Labour Department with legal costs. Amcu argued in court that section 95(8) of the Labour Relations Act allowed for the issuing of guidelines, but Oliphant passed the guidelines in terms of section 95(9) of the Act. The contention was that Oliphant empowered herself through inapplicable legislation to introduce guidelines that impose mandatory obligations. She therefore acted without legal authority, Amcu maintained. State counsel argued that the submissions that Oliphant acted without legal authority were misguided because her predecessor did invoke the contested piece of legislation in issuing labour guidelines.

‘The submission does not assist the Minister,’ said the judge. ‘Section 95(8) does not empower the Minister to impose mandatory obligations on trade unions. In my view, the guidelines are peremptory and prescribe the manner in which a trade union should conduct a ballot of members before calling for a strike or lock-out.’

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