The South African government is in the process of passing new legislation that would amend the Labour Relations Act, Act 66 of 1995 by reforming laws on industrial action against a backdrop of industrial disputes that have occasionally turned violent.  

The amendments impose additional requirements on existing procedures for protected industrial action. The changes are intended to address the high levels of unprotected industrial action and unlawful acts in support of industrial action, including violence and intimidation, which are prevalent in South African industrial actions. Ordinarily, this process requires the parties to have a dispute of mutual interest that has been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation and has remained unresolved for 30 days, or the CCMA has issued a certificate stating that the dispute remains unresolved. Thereafter, the union may issue a strike notice with at least 48 hours’ notice. This regulation remains intact.

However, the proposed amendments would regulate existing structures for picketing in support of industrial action. Unless picketing rules are already provided for in a collective agreement, the CCMA may now determine them during the conciliation process. Certain default picketing rules will be published as a reference point for CCMA-determined picketing rules. In short, picketing will be prohibited unless picketing rules have been established. This more stringent regulation is a result of picket line violence, which has characterized strikes in recent years and often affects the constitutional rights of others to freedom of security and freedom of association and property.

The second proposed amendment would allow balloting by union members. This balloting must be conducted prior to embarking on industrial action or approving a strike or lock-out prior to commencing such industrial action, and it must be conducted in secret. In order for any intended strike or lock-out to be protected, it is already a requirement of law that the trade union or employers’ organization carry out a ballot of its members who are entitled to strike or lock-out with respect to the issue concerned and that a majority of the voting members vote in favor of the industrial action. Previously, there was no clarity as to what type of ballot was required, and union constitutions predominantly do not allow secret balloting. This new amendment would allow secret ballots of members prior to embarking on a strike or lockout and is intended to ensure that an industrial action does not occur under circumstances in which it does not enjoy majority support, as well as prevent violence against non-strikers.

Unions have criticized this proposed amendment, alleging that secret balloting will discourage strikes by undermining the collective nature of strike action by allowing individuals to make the decision on whether a to strike. However, although the proposed amendment allows secret balloting, it does not require it.


Trade unions do not support the bill seeking to implement these amendments because they view it as a limitation of workers’ rights in that it is alleged to curtail the most powerful tool available to workers to improve their earnings and circumstances at work. However, no further amendments to the bill have been proposed, and the changes are likely to be accepted in their current format.

Written by Bradley Workman-Davies of Werksmans Attorneys and Roger James of Ogletree Deakins