Section 23(2)(c) of the Constitution of the Republic of South Africa, 108 of 1996 (the Constitution) gives all workers in South Africa a right to go on strike, this right is further entrenched in section 64 of the Labour Relations Act, 66 of 1995 (the LRA) as amended. The question that arises now is, is the right to strike absolute and therefore, cannot be limited? The answer is no, in fact, all rights contained in the Bill of Rights may be limited.
Section 36 of the constitution (the limitation clause) states that the rights contained in the Bill of Rights may be limited by law of general application if it is reasonable and justifiable in an open and democratic society. Therefore, a workers’ constitutional right to go on strike is not absolute and may be limited in certain instances.
One of these instances is the Labour Relations Act, 66 of 1995 (the LRA) as amended. Section 65(1)(d)(i) states that no person may take part in a strike if that person is engaged in an essential service.
Section 213 of the LRA defines ‘essential services’ as ‘a service, the interruption of which endangers the life, personal safety or health of the whole or any part of the population’.
Therefore, employees working in a sector that is deemed an essential service may not go on strike or engage in any strike action.
However, who determines which service is an essential service?
Section 70-74 of the LRA has established a forum known as the Essential Services Committee (the ESC) who have been tasked with determining, inter alia, whether the whole or part of a service is an essential service, after conducting an investigation into whether or not such a designation should be made. In terms of section 73, any party (employer or employee) may refer a dispute to the ESC for determination.
So now that an essential services employee is not allowed to strike, what recourses do they have?
Section 72 provides that the parties may negotiate and enter into a minimum service agreement which can regulate the minimum level of service to be provided by workers in an essential service, only if this agreement is concluded can employees engage in strike action.
If there is no minimum service agreement in place, section 74 of the LRA provides a dispute resolution mechanism for employees who are not allowed to strike. In terms of this section, an employee may refer a dispute (such as wages) to the relevant Bargaining Council or the CCMA for resolution.
Therefore, we can conclude that an employees’ right to strike may be limited in certain instances.
Article by: Cathryn Gungadeen
Dispute Resolution Official – Durban