The Labour Relations Amendment Act of 2018 came into force on 1 January 2019, bringing with it an amendment to s95(5)(q) of the Labour Relations Act (LRA). Prior to the amendment, the LRA stated that members of a trade union or employers’ organisation could not be disciplined for refusing to participate in a strike or lock-out unless a ballot was held and it was supported by the majority of voters. Although the application and enforcement of this section remained in doubt, the amendment has added that the “ballot” must now include any system of voting by members that is recorded and is in secret – so as to not identify voters.

The amendment not only brings about anonymity for voters, but the Department of Labour has cautioned that trade unions and employers' organisations must use the present 180-day transitional period from the commencement of the LRAA, in order to align their constitutions and provide for balloting, failing which punitive measures may be imposed by the Registrar, including the cancelation of registration, de-registration and the placement under administration of the guilty party.

There is however and currently, no express provision that permits that a strike or lock-out may be interdicted on account of a trade union or employers' organisation having failed to hold such a ballot, however the amendment, if properly enforced, should bring about a greater form of responsibility and participation prior to strikes and lock-outs being embarked upon, especially where these have been previously called by small groups of dominant members.

Interestingly, the guidelines issued in terms of Section 95(5) and at the end of 2018, provide inter alia that the records of the ballot must be retained for three years from the date of the ballot – aiming to optimise the use of the collective bargaining framework and promote co-operative labour relations.

Trade Unions and Employers Organisations should therefore ensure compliance as soon as practically possible and prior to the expiry of the transitional period referred to above.