The right to strike in South Africa

    1. The right to strike is derived from the International Labour Organization Conventions 87 of 1948 and 98 of 1949, which were both ratified by South Africa.

 

    1. South Africa has given effect to its duties as members under these Conventions in section 23(2) (c) of the Constitution which provides that every worker has the right to strike. According to Mohamed (Without Prejudice: 2012) South Africa is one of the only countries in the world that has elected to entrench the right to strike as a fundamental constitutional right. The implication hereof is that the right can only be limited in terms of the law of general application to the extent that it is reasonable and justifiable (sec 36 of the Constitution).

 

    1. Section 213 of the Labour Relations Act 66 of 1995 (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 who 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 the employer and the employee. Section 64(1) of the LRA provides that every employee has the right to strike and every employer has the right to lock-out. Olivier (Managing employment relations in South Africa: 2005) submits that were the right to bargain collectively not so well protected, the right to freedom of association would be fruitless.

 

    1. In terms of sec 64(1) of the LRA, a strike is deemed to be protected if the issue in dispute has been referred to a council or the Commission for Conciliation mediation and Arbitration (CCMA) and a certificate stating that the dispute remains unresolved for a period of 30 days or any extension of that period agreed upon between the parties has lapsed since the matter was so referred. Thereafter, at least 48 hours’ notice of the intention to commence strike action must be given to the employer in writing – unless the State is the employer, in which case at least 7 days’ notice of the intention to commence strike action must be given. In BAWU and Others v Prestige Hotels CC t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC), it was held that by definition a lawful strike is functional to collective bargaining. The parties are forced to take negotiations seriously by the fear that if settlement is not reached either of the parties might exercise their right to inflict economic harm on the other.

 

    1. Van Niekerk (Law@Work: 2014) submits that once these requirements have been met the strike is protected and employees engaged in the strike will enjoy immunity against delictual claims, claims for breach of contract and enjoy protection against dismissal. This was confirmed in Coin Security Group (Pty) Ltd v SANUSO (1995) 19 ILJ 43 (C), where the court held that an employer is not entitled to obtain an order interdicting anyone from participating in a protected strike and cannot claim any damages for any conduct in contemplation or furtherance of a protected strike or any other civil action. In terms of section 76 of the LRA, an employer is also prohibited from employing replacement labour to continue or maintain production during a protected strike if the service in question has been designated as maintenance serviceĀ  or to fulfill the duties of employees who have been locked out – unless the lock out is in response to a strike.

 

  1. To counter the effects of the rather generous right to strike in South Africa on the employer section 67(3) provides that an employer does not have to remunerate an employee for services which he has not rendered. However, if such remuneration includes payment in kind for accommodation, food or other necessities of life the employer may not withhold such payment. The employer may however, approach the Labour Court to recover such payments by way of civil proceedings after the strike. Section 68 of the LRA provides that conduct in contemplation or furtherance of an unprotected strike or lock-out may constitute a ground for dismissal.