Exploring legal alternatives to remedy problems associated with prolonged and lengthy strikes in South Africa

Abstract

In South Africa the Constitution of the Republic of South Africa, 1996 hereafter referred to as (the Constitution) is the supreme law and any conduct inconsistent with the Constitution is invalid. In terms of section 23(2)(c) of the Constitution “every worker has the right to strike”. Section 64(1) of the Labour Relations Act (LRA) gives effect to section 23(2)(c) of the Constitution by providing that workers have the right to strike and employers have recourse to lock out. Appreciating the fact that workers have a constitutional right to partake in strike action, trade unions appreciate the workers’ constitutional right to strike. They make full use of it and, to some extent, rely too much on such right. ineffectiveness of the current collective bargaining system. The LRA is profoundly in favour of the principle of majoritarianism. Several provisions in the LRA favour majority unions. To name one as an example: Section 18 which states that an employer and the majority union may conclude a collective agreement setting out the thresholds for representivity in the workplace. So unions who do not meet such thresholds as agreed upon, cannot engage with the employer in collective bargaining. Furthermore the South African collective bargaining system makes use of closed shop and agency shop agreements which clearly send out a message to minority unions to grow or stagnate. Such support of the LRA for majority unions tends to render the collective bargaining system ineffective because minority unions also have a constitutional right to partake in collective bargain. Because there is in law no duty upon an employer to engage in collective bargaining with a union, trade unions are left with no other option but to initiate a strike action. Much emphasis is placed on the right to strike. However, the same emphasis is not placed on the regulation of such right. South African labour legislations are silent on the duration of strike actions. Enshrining the right to strike in the Constitution and not duly regulating it can have severe consequences as was witnessed at Marikana. The primary objective of this dissertation is to ‘Explore legal alternatives to remedy problems associated with prolonged and lengthy strike actions in South Africa’. This will be done by examining legal alternatives such as interest arbitration, to some extent strike balloting, and the possibility to reintroduce the following legal alternatives: Duty to bargain collectively; duty to bargain in good faith; and the abandoning of closed shop and agency shop agreements. South Africa is a victim of prolonged and violent strike action. One example of such prolonged and lengthy strike action is the Marikana strike action which lasted for five consecutive months. Even though workers do have the right to strike, it is highly doubtable that the legislator’s intention was that workers could strike for five consecutive months. Strike actions do not function in a vacuum; they affect many concerned parties – the employer and employees and also peripheral stakeholders. More often than not strike actions affect people not related to the strike, and also the economy of the applicable community and the country as a whole. Strike actions have become a daily occurrence in South Africa, whether the strike is about wage increase or poor service delivery. What is troubling is the fact that the LRA is silent on the duration of strike actions. Nowhere in the LRA is it stipulated how long a strike action may last. One thing is clear: Workers cannot strike forever, even though they have a constitutional right to strike. No right in the Constitution is absolute, all rights may be limited. That is the factual position despite the fact that strike actions do not function in a vacuum. Strikes do not inflict economic harm on the employers only, but also the public at large including the striking employees. What further worsen matters, is the ineffectiveness of the current collective bargaining system. The LRA is profoundly in favour of the principle of majoritarianism. Several provisions in the LRA favour majority unions. To name one as an example: Section 18 which states that an employer and the majority union may conclude a collective agreement setting out the thresholds for representivity in the workplace. So unions who do not meet such thresholds as agreed upon, cannot engage with the employer in collective bargaining. Furthermore the South African collective bargaining system makes use of closed shop and agency shop agreements which clearly send out a message to minority unions to grow or stagnate. Such support of the LRA for majority unions tends to render the collective bargaining system ineffective because minority unions also have a constitutional right to partake in collective bargain. Because there is in law no duty upon an employer to engage in collective bargaining with a union, trade unions are left with no other option but to initiate a strike action. Much emphasis is placed on the right to strike. However, the same emphasis is not placed on the regulation of such right. South African labour legislations are silent on the duration of strike actions. Enshrining the right to strike in the Constitution and not duly regulating it can have severe consequences as was witnessed at Marikana. The primary objective of this dissertation is to ‘Explore legal alternatives to remedy problems associated with prolonged and lengthy strike actions in South Africa’. This will be done by examining legal alternatives such as interest arbitration, to some extent strike balloting, and the possibility to reintroduce the following legal alternatives: Duty to bargain collectively; duty to bargain in good faith; and the abandoning of closed shop and agency shop agreements.