Legal Articles

Engaging in a strike by workers usually comes at a cost to the employer one way or the other. It can mean the destruction of property, loss of business revenue and/or damage to the reputation of the business. At the end of the day, employers and employees are urged to find amicable ways of resolving issues that may be in dispute.

The first note to take is that strikes are provided for in Section 23 (2) (c) of the Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution) which deals with labour relations.

Labour relations

23.          (1) Everyone has the right to fair labour practices.

(2) Every worker has the right—

(a) to form and join a trade union;

(b) to participate in the activities and programmes of a trade union; and

(c) to strike.

There are various reasons why workers may decide to engage in a strike, but the common denominator is that there would be a grievance that the workers and the employer would not have found common ground in redress. Labour procedures provide for ways that are available in order to register a grievance within the company and what may be done in the event that this does not yield the desired results. Depending on the grievance, some disputes may be addressed before labour adjudication forums whilst for others employees may opt to strike.

Not all workers may lawfully resort to a strike, section 65 (1) (d) (i) of the Labour Relations Act 66 of 1995 provides restrictions for workers who are engaged in essential services e.g police, army. The reason for this is obvious, these are critical services whose absence can cause dire consequences should they decide to strike, although not to imply that other professions are less important.

65.          Limitations on right to strike or recourse to lock-out

(1) No person may take part in a strike or a lock-out or in any conduct in

contemplation or furtherance of a strike or a lock-out if-

(a) that person is bound by a collective agreement that prohibits a strike or

lock-out in respect of the issue in dispute;

(b) that person is bound by an agreement that requires the issue in dispute

to be referred to arbitration;

(c) the issue in dispute is one that a party has the right to refer to

arbitration or to the Labour Court in terms of this Act;

(d) that person is engaged in-

(i) an essential service; or

However, section 64 sets out requirements that need to be complied with in order for a strike to be deemed lawful and protected. This is a deliberate measure by the legislature to prevent anarchy in society. Chief amongst the requirements is an obligation to notify the employer or an employers’ organisation of the proposed strike. We shall discuss these requirements in further detail in a follow up article.

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