Amcu v Minister of Employment and Labour (78915/2019) [2021] ZAGPPHC 187 (6 April 2021)
To issue Balloting Guidelines, it is imperative for the Minister to act within powers granted by the enabling legislation under section 95(8) of the LRA. Section 95(8), in empowering the Minister to issue Balloting Guidelines, does not empower the Minister to impose mandatory obligations on trade unions. Guidelines in breach of these provisions are ultra vires.
Facts:
Amcu challenged the legality of the Strike Balloting Guidelines gazetted in December 2018, on 2 grounds:
- Firstly, that the Guidelines were issued under the wrong section; and
- Secondly, that the language used in the Guidelines were couched in mandatory terms (eg-the repeated use of the word "must", in relation to a union's obligations to ballot), which were not suited to the purpose of Guidelines.
The High Court also agreed that section 95(8) does not empower the Minister to impose mandatory obligations on trade unions, and for this reason also found the Guidelines were ultra vires. Examples of these mandatory obligations were given as follows:
Paragraph 9.1: "reasonable notice must be given to members..."
Paragraph 9.2: "The notice must specify the time and place of the ballot."
Paragraph 9.3: "... the subject of the ballot must be clearly phrased..."
Paragraph 9.4: "Ballot papers must be prepared in accordance ..."
Paragraph 9.5: "Ballots must not contain..."
Paragraph 9.6: "A ballot must be conducted in terms of..."
The outcome of this case was that the High Court set aside the gazetted Strike Balloting Guidelines. But we think it is a pity that the real reason we suspect Amcu went to the trouble and expense of bringing this High Court application, namely that the Guidelines misrepresent the law on strike ballots, did not appear to have been properly ventilated and considered. It remains to be seen how the Minister responds to this judgment: if the Minister simply changes certain wording, making it less mandatory by nature, and republishes the same Guidelines under the correct section of the Act, we could be back in court again at a later stage debating whether the Guidelines correctly reflect the law. And we still have the lawfulness of the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing to consider, which we think also wrongly stated the law on strike ballots.
Extract from the judgment:
(Janse Van Nieuwenhuizen J)
GROUNDS OF REVIEW AND SUBMISSIONS
[28] The first ground of review is based on the provisions of section 6(2)(a)(i) of PAJA which provides for the judicial review of an administrative action that was not authorised by the empowering section. In the event, that the decision falls outside the scope of the empowering provision the decision is ultra vires and stands to be reviewed and set aside.
ultra vires
[29] Paragraph 1 of the guidelines states that the guidelines are published in terms of section 95(9) of the Act. The applicant contends that section 95(8) provides for the issuing of guidelines and that the Minister in issuing the guidelines in terms of section 95(9) of the Act acted ultra vires.
[30] Mr Maleka submitted that subsections (8) and (9) should be read together and that the reference in subsection (8) to subsection (9) makes it clear that as long as the Minister invokes subsection (8) in deciding to issue the guidelines, the guidelines may be issued in terms of subsection (9) of the Act.
[31] Mr Maleka, furthermore, asserted that the Minister's predecessor did invoke subsection (8) in issuing the guidelines and as a result the ultra vires point is misguided.
[32] The submission does not assist the Minister. Section 95(8) expressly empowers the Minister to issue guidelines "for the system of voting as contemplated in subsection (9)". Subsection (9) does not confer a similar power on the Minister.
[33] Mr Loxton with reference to Minister of Education v Harris 2001 (4) SA 1297 CC emphasised the legislative imperative to act within the powers granted by the enabling legislation.
[34] I agree.
[35] The further problem with the guidelines is to be found in paragraph 9. Although paragraph 9 states that the guidelines "are indicative of the procedures that should be followed when conducting a secret ballot", the subparagraphs are couched in mandatory terms, namely:
[35.1] Paragraph 9.1: "Reasonable notice must be given to members of a ballot...."[36] AMCU submits that the mandatory provisions in the Guidelines are not provided for in the empowering section, section 95(8), which provides that guidelines may be issued by the Minister for the system of voting contemplated in subsection 9 and is as a result ultra vires.
[35.2] Paragraph 9.2: "The notice must specify the time and place of the ballot."
[35.3] Paragraph 9.3: "The question that is the subject of the ballot must be clearly phrased, and must be consistent with the terms of the dispute referral.
[35.4] Paragraph 9.4: "Ballot papers must be prepared in accordance ...."
[35.5] Paragraph 9.5: "Ballots must not contain...."
[35.6] Paragraph 9.6: "A ballot must be conducted in terms of ....".
...................
[40] Section 95(8) does not empower the Minister to impose mandatory obligations on trade unions and to this end the paragraphs mentioned supra is also ultra vires.