The use of replacement labour during strike action in South Africa and Canada : a legal analysis

Abstract

Like in many other countries, the use of replacement labour during protected strike action has been and continues to be one of the most controversial issues in South Africa's industrial relations system. It is often, inter alia, argued that the use of replacement labour renders a strike ineffective and may even turn collective bargaining into collective begging. On the other hand, it is often, inter alia, argued that a ban on the use of replacement labour would increase the bargaining power of unions and that this would result in significantly higher wage increases. The main objective of this study is to determine to what extent replacement labour should be allowed as a labour weapon by employers during strike action. In order to achieve this objective, this study: provides a critical analysis of the legal position and issues surrounding the replacement of lawfully striking workers in South Africa; critically analyses the position of the ILO regarding the replacement of lawfully striking workers and; determines the lessons that South Africa may learn from Canada regarding the regulation of replacement labour. The conclusions that are drawn are that not only does the use of replacement labour lead to violent strikes but also renders strikes ineffective and turns collective bargaining into collective begging. It is argued that section 76 of the Labour Relations Act in South Africa should be amended so as to limit the use of replacement labour to strikes in sectors which can be regarded as essential or essential services.