Some Recent Developments in Strike Law
| Jurisdiction | South Africa |
| Author | Annali Basson |
| Published date | 03 September 2019 |
| Date | 03 September 2019 |
| Citation | (2000) 12 SA Merc LJ 119 |
| Pages | 119-135 |
Some Recent Developments in Strike Law
ANNALI BASSON
University of South Africa
1 Introduction
The right to strike is expressly conferred on every worker by s 23(2)(c)
of the Constitution of the Republic of South Africa, Act 108 of 1996
('the Constitution'). Upon ratifying the Constitution, the importance
of the right to strike was confirmed by the Constitutional Court in
Ex parte Chairperson of the Constitutional Assembly. In re: Certification of
the Constitution of the Republic of South Africa 1996
(CC) at 795F) in the following terms:
'Collective bargaining is based on the recognition of the fact that employers enjoy greater
social and economic power than individual workers. Workers therefore need to act in
concert to provide them collectively with sufficient power to bargain effectively with
employers. Workers exercise collective power primarily through the mechanisms of strike
action. . . . The importance of the right to strike for workers has led to it being far more
frequently entrenched in constitutions as a fundamental right than is the right to lock
out.'
In giving effect to the fundamental right to strike conferred by the
Constitution, s 64(1) of the Labour Relations Act 66 of 1995 ('the LRA')
states that 'every employee has the right to strike and every employer has
the right to lock-out'. However, the exercise of the right to strike is not
absolute and is limited by the following provisions of the LRA:
First, strike action is absolutely prohibited where the person is bound
by a collective agreement that prohibits a strike or lock-out; where a
binding collective agreement requires the issue in dispute to be referred
for arbitration; where the issue in dispute must, in terms of other
provisions of the LRA, be referred either to the Labour Court for
adjudication or to arbitration; where the person is engaged in an essential
service or maintenance service; where an arbitration award or a collective
agreement regulates the issue in dispute; or where a person is bound by a
determination made in terms of s 44 by the Minister of Labour, which
regulates the issue in dispute (see s 65(1)—(3) of the LRA).
Secondly, the following prescribed procedures must be followed prior
to embarking upon strike action. The dispute must be referred for
conciliation under the auspices of a bargaining council with jurisdiction
over the sector and area in which the dispute arose, or to the Commission
for Conciliation, Mediation and Arbitration ('the CCMA') in the absence
of a bargaining council with the necessary jurisdiction (s 64(1)(a) of the
LRA). If the dispute remains unresolved, at least 48 hours' written notice
of the commencement of the strike must be given (seven days' notice is
required where the State is the employer).
119
(2000) 12 SA Merc LJ 119
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120
(2000) 12 SA Mere LJ
Once the procedural requirements of the LRA have been complied
with, a strike will acquire protected status. The most notable consequence
of a protected strike is its neutralizing effect on the common law. In
terms of the common law, strike action, whether it comprises a complete
or a partial withdrawal of labour, amounts to a breach of the
employment contract because the employees are failing to tender their
services in terms of their contracts. This breach constitutes a fundamental
breach in terms of the common law, entitling the employer to dismiss
those employees (see
R v Smit
1955 (1) SA 239 (C)). An employer may
also approach the Labour Court for an interdict to restrain the strikers
from participating in unprotected strike action (s 68(1)(a) of the LRA).
The Labour Court may also order the payment of just and equitable
compensation for any loss caused by the strike (s 68(1)(b) of the LRA).
Section 67(4) of the LRA counteracts these effects of the common law
by stating that a person does not commit a delict or a breach of
contract by taking part in a protected strike or in any conduct in
contemplation of or in furtherance of such a strike (s 67(2) of the LRA).
In particular, it is expressly stated that 'an employer may not dismiss an
employee for participating in a protected strike or for any conduct in
contemplation or in furtherance of a protected strike' (see further the
discussion in par 4 below).
2 The Definition of a Strike
2.1 Introduction
For industrial action to acquire protected status, such action must first
qualify as strike action in terms of the definition of a strike. Section 213 of
the LRA defines a strike as
'the partial or complete concerted refusal to work, or the retardation or obstruction of
work, by persons who are or have been employed by the same employer or by different
employers, for the purpose of remedying a grievance or resolving a dispute in respect of
any matter of mutual interest between employer and employee, and every reference to
"work" in this definition includes overtime work, whether it is voluntary or compulsory'.
This definition has been scrutinized by the Labour Court on numerous
occasions in deciding whether collective or industrial action by employees
does indeed constitute strike action as defined. This enquiry is required as
not all forms of collective action necessarily constitute a strike as defined.
The question whether collective action constitutes strike action could
arise, amongst others, in the following three instances:
(i)
where employees collectively refuse to do work that is in contra-
vention of a statutory provision;
(ii)
where employees collectively refuse to tender their services, which
they are contractually obliged to do, in response to a failure of
the employer to perform its reciprocal obligations in terms of the
employment contract; and
(iii)
where employees collectively refuse to work in response to a
unilateral amendment of their employment contracts.
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