1) THE RIGHT TO STRIKE IS EMBEDDED INTO OUR CONSTITUTION
The right to strike in South Africa is clearly indicated and stipulated in Section 23 of the Constitution. This section gives effect in the form of an entire section named “Labour Relations”. Neither The Constitution nor the Labour Relations Act make any reference as to whether a strike is protected or unprotected. This right in South Africa has been dealt with over many years by employees who have followed protected and unprotected strikes respectively.
Section 67 of the Labour Relations Act uses the term “protected strike” to describe a strike that complies with its provisions. The provisions require that:
– a dispute has been referred to a Council or the Commission for Conciliation, Mediation and Arbitration;
– a certificate that a dispute remains unresolved must have been issued;
– 30 days must have elapsed since the referral; and
– a written notice of a strike must have been given to the employer 48 hours prior to it taking place.
If these provisions are met, the strike will be protected. Striking employees may not be dismissed and no civil legal proceedings may be brought against them. A strike is unprotected if it does not comply with the necessary sections that are contained in the Labour Relations Act. A court may grant an interdict against an unprotected strike and order the payment of compensation for any loss attributable to the strike. Participation in an unprotected strike may also constitute a fair reason for dismissal.
2) THE RIGHT TO STRIKE LIMITED BY THE TERM “ESSENTIAL SERVICES”
The definition of an essential service is contained in section 213 of the Labour Relations Act which clearly reads:
“(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population;
(b) the Parliamentary service;
(c) the South African Police Services;”
Over the past few years, the Essential Services Committee (the “ESC”), in order to provide clarity to employers and employees, have designated a large number of services as essential. Click here to see the list.
3) ARE EMPLOYEES OF AN ESSENTIAL SERVICE ALLOWED TO PARTAKE IN RIGHTFUL STRIKE ACTION?
Several Trade Unions, Labour Consultants and Employers Organisations are still in the dark when it comes to situations where employers and employees have reached a deadlock in terms of negotiations that were held, and where such an employer forms part of an essential service. Several disputes regarding matters of mutual interest are referred to the CCMA with the premise to partake in a protected strike, but many such referrals are not as straight forward as the approach as indicated in point 1) above. The Labour Relations Act makes special provision for Essential Services in sections 70 – 74.
Without going into too much detail, the above mentioned sections can be summarized as follows:
– Section 70: The Establishment and Functions of an Essential Service Committee;
– Section 71 – The process of designating a service as an essential service;
– Section 72 – The powers of the ESC regarding Minimum Services;
– Section 73 – Disputes about whether a service is an essential service and the process thereto;
– Section 74 (and the most important section for the purposes of this article) – Disputes in essential services.
Section 74 clearly stipulates that the process of referring a dispute with the premise of partaking in a protected strike, is not as straight forward as indicated in Section 67 of the Labour Relations Act. Section 74 states that any party to a dispute that is precluded from participating in a strike and that is engaged in an essential service may refer the dispute in writing to the applicable council or Commission, and thereafter:
1) The Commission or Council must attempt to resolve the dispute through conciliation, and;
2) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through ARBITRATION by the applicable council or Commission.
From the above it is clear that any employer who is engaged in an essential service, will not follow the single conciliation process that is indicated in Section 67, and in the event that the matter remains unresolved, it can only be resolved thereafter through the arbitrating process.
With regards to what was mentioned in all points allocated above, employers, trade unions, employers organisations and labour consultants alike are urged to ensure that parties to a dispute, specifically where an essential service is part and parcel to the dispute, follow the correct procedures and outlines that are guided by the correct sections of the Labour Relations Act, the guidelines as indicated by the CCMA and to seek intervention from the Essential Services Committee before any negotiations or deadlocks have been reached.
Noel Strating (LLB – University of the Free State)
Dispute Resolution Official – Bloemfontein