Investigating the need to introduce Compulsory Interest arbitration as a method to prevent lengthy strikes in South Africa

• Author: Tenza, M.
• DOI: https://doi.org/10.47348/SAMLJ/v33/i2a2
• Published date: 13 January 2022
• Date: 13 January 2022
• Pages: 176-199

INVESTIGATING THE NEED TO

INTRODUCE COMPULSORY INTEREST

ARBITRATION AS A METHOD TO PREVENT

LENGTHY STRIKES IN SOUTH AFRICA

MLUNGISI TENZA*

Senior Lecturer, School of Law, University of KwaZulu-Natal

Abstract

The issue of lengthy strikes in South Africa has been a cause for

concern since it destabilises the economy and can result in a loss of

employment if it is not managed properly. A strike that takes too long

to be resolved causes anger towards strikers, so creating a fertile

environment for the eruption of violence between striking and

non-striking workers. Damage to property and harm to civilians has

been reported where striking workers have become violent during a

strike. It appears that the existing remedies fail to curb long strikes and

resultant violence, as unions and members continue with their action

despite the granting of an order of interdict to stop the conduct. To

solve the problem of long and consequently violent strikes, the article

advocates the introduction of a compulsory interest arbitration in the

labour relations law of South Africa. A compulsory interest arbitration

will force the parties into arbitration once it is established that the

strike has continued for an unreasonably long period without a

solution. The use of compulsory interest arbitration will not be unique

to South Africa, as other countries such as Canada and Australia use it

in their labour relations systems – which helps them deal with long and

possibly harmful or violent strikes. The article argues that lessons can

be learned from these countries on how South Africa can deal with its

own protracted strikes. The article further proposes that the LRA be

amended to include a provision that will enable the Minister to

intervene where the parties fail to reach agreement on disputed issues,

and where it is in the public interest to do so. Introducing a compulsory

interest arbitration in the labour relations system could limit the right

to strike. However, the article argues that such a limitation may be

justified in terms of s 36 of the Constitution.

*LLB LLM LLD (UNISA).

176

https://doi.org/10.47348/SAMLJ/v33/i2a2

(2021) 33 SA Merc LJ 176

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Keywords: bargaining system; dispute resolution; long strike; interdict;

compulsory interest arbitration; limitation of rights

I INTRODUCTION

The Constitution of the Republic of South Africa, 1996 (Constitution)

guarantees every worker the right to strike.

1

This right is further given

effect in the Labour Relations Act 66 of 1995 (LRA). The LRA makes

provision for protected and unprotected

2

strikes with consequences

attached to each of these two categories of strike.

3

However, it has

become the norm in South Africa that strikes take a long time to get

resolved. The effect of long strikes is that it grows anger towards strikers,

resulting in friction between them and non-striking workers.

4

Long

strikes also have a negative effect on the economy.

5

The existing

remedies in terms of ss 68 and 150A of the LRA, as amended by the

Labour Relations Amendment Act 10 of 2018 (LRAA), appear to fail to

address long strikes – with consequential violence in South Africa.

The article argues that if long strikes have these consequences, it may

help South Africa signif‌icantly if mechanisms are developed to address

the problem of unreasonably long strikes. In this regard, the article

investigates the possibility of introducing a compulsory interest arbitra-

tion into the labour relations system of South Africa. This would force

the parties to arbitration and end the strike that has dragged on for an

unreasonably long time. It proposes that lessons should be learned from

countries such as Australia and Canada as they use compulsory interest

arbitration to suspend or terminate industrial action when it is causing

harm to the population and to the economy. The article further argues

that having interest arbitration as part of the labour relations system in

South Africa may limit the right to strike, which is protected in the

Constitution. However, such limitation may be justif‌ied in terms of s 36

of the Constitution.

1

Section 23(1)(c) of the Constitution.

2

Sections 64(1) and 65(1) of the LRA.

3

See s 67(2) and (6) of the LRA for the consequences of a protected strike.

4

Tenza, ‘An investigation into the causes of violent strikes in South Africa: Some lessons

from foreign law and possible solutions’ (2015) 19 LDD 211 at 220.

5

An example of a long and violent strike was the strike embarked upon by employees in

the platinum sector that lasted for four months. It started in February 2014 and ended in

June 2014.

https://doi.org/10.47348/SAMLJ/v33/i2a2

INVESTIGATING THE NEED TO INTRODUCE COMPULSORY INTEREST 177

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