THE role of the Electoral Commission and the right of its workers to strike came under the spotlight in the Johannesburg Labour Court, with the National Education, Health and Allied Workers Union (Nehawu) being aggrieved by the fact that its members working for the commission are curbed in regarding when they can strike.

The Electoral Act stipulates that the Commission is an essential service for the purposes of the Labour Relations Act. In this regard, the union embarked on negotiations through the commission’s national bargaining forum to agree on a minimum service agreement (MSA).

The parties agreed on most of the terms, but they could not see eye to eye on when union members could strike. The forum proposed curbing strikes during certain times close to the elections.

Nehawu felt that this would have the effect of limiting strikes by its members, and the matter was referred to the Essential Services Committee (ESC).

The Commission stated to the ESC that many strikes, including those by Nehawu, are characterised by violence. The Commission submitted that strikes during voter registration could undermine its ability to comply with its constitutional mandate.

The primary argument of the union was based on section 210 of the LRA, which provides that where conflict arises (in relation to matters dealt with under the LRA) with any other law, the LRA must prevail.

The ESC found that the Electoral Act and the Local Government Municipal Act both limited strikes at times critical to elections so that they could proceed without interference. It found that the limitation on strikes was therefore deemed fair.

Unhappy with this finding, the union turned to the Labour Court.

It argued on review that the finding of the ESC was wrong because national elections are held every five years, but elections are also held at provincial and local levels. Thus, elections could be held every year.

It said the commissioner failed to take into consideration that by including the registration period, this limited the right to strike by anywhere from two to eight months. This amounts to a “broad denial of the right to strike,” the union said.

But Acting Judge Reynaud Daniels said in his view there is no conflict between the LRA and the Electoral Act. The LRA does not state that the right to strike is without limitation.

It in fact prohibits any employee who is engaged in an essential service from engaging in strike action. Accordingly, the prohibition applies to services designated as essential services, he said.

The judge added that when the Electoral Commission is not engaged in providing a service related to municipal elections, the Commission is engaged in providing other services in fulfilment of its constitutional mandate.

“There can be little doubt that free and fair elections are an essential pillar of our democracy, and the Electoral Commission serves a critical service in that respect,” the judge said in turning down the union’s review application.

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Electoral Commission's strike limitation sparks legal battle