Section 213 of the Labour Relations Act (LRA) defines a strike and its purpose as a resolution to a grievance or dispute about a matter of mutual interest. There are two types of disputes: A rights dispute and an interest dispute. A rights dispute arises when a person’s entitlement to something in terms of a collective agreement, a contract of employment, or labour legislation is infringed upon. An interest dispute surrounds something a person wants but is not yet entitled to.
Generally, Employees can strike over interest disputes and not rights disputes, and the scope of this is enormous. However, to determine what demands Trade Union Members are entitled to strike over, we need to look at Section 65 of the LRA, which sets out the substantive limitations on the right to strike, i.e., what Employees cannot strike over or circumstances where Employees are precluded from striking.
Section 65 of the LRA states that Employees are prohibited from striking if they are:
- Bound by a Collective Agreement that prohibits a strike or lock-out in respect of the issue in dispute.
- Bound by an agreement that requires the issue in dispute to be referred to Arbitration.
- Engaged in an essential service or maintenance service.
Employees also cannot strike when they seek the Employer to do something unlawful or outside the Employer’s power. However, they can strike over a matter of mutual interest where the demand is unreasonable, and that is because the Courts choose to limit the right to strike as little as possible.
Section 65 further prohibits Employees from striking over an issue in dispute that can be referred to Arbitration or the Labour Court in terms of the LRA or other employment law.
Beyond the above limitations, Trade Union Members can strike over any matter of mutual interest between Employers and Employees. For example, wages, improved working conditions and other disputes of mutual interest.
In the case of De Beers Consolidated Mines Ltd v CCMA ( 5 BLLR 578 (LC) 581C), it was stated that the term “mutual interest” is not defined in the LRA and “must therefore be interpreted literally to mean any issue concerning employment”. Thus, the list of demands that Trade Union Members are entitled to strike over is open-ended, and one should pay careful attention to Section 65 of the LRA to understand what Trade Union Members can strike over and what they cannot.
Article by Raina Doorasamy
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)