The Labour Relations Act (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”.

The right to strike is enshrined in the Constitution as a fundamental right for every worker. However, the right to strike is not absolute and must be exercised within the confines of the law. When parties reach a deadlock on a National Level, it is essential to understand who can embark on a strike and the procedures that must be followed.

Strikes can only be embarked upon by registered Trade Unions or Employees upon by registered Trade Unions or Employees in terms of a Collective Agreement. A Collective Agreement is an agreement between an Employer or Employers Organisation and a registered Trade Union or more than one such Trade Union, regulating terms and conditions of employment or any other matter of mutual interest.

Before a strike can be embarked upon, the dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant Bargaining Council for Conciliation. This must be done in accordance with Section 64 of the LRA.

The LRA recognises the Constitutional right to strike subject to several limitations. One of these limitations is that no person may partake in a strike if that person is engaged in an essential service.

The essential service limitation on the right to strike in the LRA has not been subjected to Constitutional challenge, and in the view of many experts, it is unlikely that it will be.

The Constitution permits rights in the Bill of Rights to be limited in terms of laws of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

Section 74 of the LRA states that a party engaged in an essential service (and consequently prohibited from striking) must refer its dispute to Conciliation at the CCMA or relevant Bargaining Council. If the Conciliation fails, the dispute must be referred to Arbitration.

Special provisions prevail in implementing an Arbitration Award in the public service essential services. Such Awards become binding only 14 days from the date of the Award unless a Minister has tabled the Award in Parliament during that period. If Parliament resolves that the Award is not binding within 14 days of its tabled date, then the Award is not binding. The dispute is then referred back to the CCMA for further Conciliation, and if that process fails, it must proceed to Arbitration once again.

The LRA needs to be clarified about whether the second Arbitration Ruling is binding on the State or whether the Award may once again be tabled in Parliament and resolved to be non-binding, which could prompt a circular process again.

With reference to Section 74 of the LRA, any party to a dispute in an essential service must refer the dispute to the Bargaining Council, which covers the sector in question or to the CCMA, where no Bargaining Council exists. The Council or CCMA will appoint the Conciliator and Arbitrator to deal with the dispute.

In conclusion, for strike action to be deemed protected, the strike action must comply and be in line with the statutory requirements envisaged by Section 64 of the LRA.

Article By: Edrich Fourie

Dispute Resolution Official – CEO Kimberley