Balancing the Right to Strike with

the Right to Public Health Care

Z Rikwe*
Department of Human Resource Management
Cape Peninsula University of Technology
L Gie
Department of Human Resource Management
Cape Peninsula University of Technology
H H Ballard
School of Public Leadership
University of Stellenbosch

ABSTRACT
Labour strikes are prevalent within the South African public sector land-
scape which has a negative impact on economic development as it re-
lates to worker productivity and its interruption of the provision of much
needed essential and emergency services. Services that are categorised
as essential relates to inter alia health and security, which are regarded
as imperative for ensuring the welfare of society. Employees within these
categories are under both a moral obligation and legislative restriction
not to strike. The counter argument is that these employees could be
exploited by failing to protect their constitutional rights and expressing
their expectations. The right to strike is documented in the South African
Constitution under Bill of Rights and Labour Relations Act No. 66 of 1995
(LRA), where the latter makes provision for the conclusion of a Minimum
Service Agreement (MSA). However, no MSA has been ratified since the
LRA was promulgated in 1995. The purpose of this article is to present the
guidelines developed from the results arising from a qualitative research
study for the establishment of a MSA to promote equilibrium between the
right to strike and the right to public health care within the South African
Public Health sector.
This study applied qualitative research design, where open-ended
questionnaires were distributed to the target research sample. Purposive
sampling was applied to a total of 30 participants who were selected from

222 Administratio Publica  |  Vol 27 No 3 September 2019

 the Western Cape Department of Health’s essential services, including
management and trade unions officials. The qualitative data was analysed
by using theme identification, grouping similar responses as means to ar-
ticulate the findings. The results revealed that employees who are providing
essential services have the right to strike only if certain conditions are met.
One of these conditions is the conclusion of the MSA to ensure a balance
between the rights of health workers to strike, and the rights of the citizens
to be provided with health care services. The agreement provides the du-
ties and responsibilities of the employer and employees for the continuation
of minimum services in the event of a public sector strike to ensure that
service delivery is not interrupted.

INTRODUCTION
The public health sector has a constitutional obligation to provide essential ser-
vices to the nation. Interruption of those services may inconvenience or endanger
lives of those who solely depend on them. The public service employees have
rights too, as contemplated in Section 23 of the Constitution of the Republic of
South Africa Act, 1996. Section 36 of the Constitution (Republic of South Africa,
Bill of Rights 1996: 18) provides for the rights listed in Section 23 to be limited by
the legislation, known as the Labour Relations Act (LRA Act, No. 66 of 1995 as
amended). The LRA recognises the right to strike and provides for restrictions to
this universal right by prohibiting persons providing essential services from joining
a strike. On the contrary, the LRA makes provision for the conclusion of MSA,
this agreement will determine the number of the workforce in an essential service
who will continue to provide minimum services while other employees are on
strike (Republic of South Africa 1995:95).
In the absence of the agreement certain portfolios in a public service are de-
clared essential and the affected employees are prohibited from striking. The LRA
was under scrutiny during the public service strikes of 2007 and 2010 where em-
ployees providing essential services were part of the strikers. The incident created
tension between the public, government and the recognised unions with regard
to essential services, since great attention needed to be paid to the rights of the
citizens in pursuance of their daily lives unhindered, and to the right of the society
to protect their well-being and its own essential functioning. The purpose of this
study was to determine the effective utilisation of mechanisms to manage limita-
tions on the right to strike within the public health sector in the Western Cape,
South Africa, as provided for by legislation.

Administratio Publica  |  Vol 27 No 3 September 2019 223

LITERATURE REVIEW
Strike action is regarded as one of the most important tools utilised by the workers
and their trade union in pursuit of their economic and social interests. It is the
most visible and controversial form of collective action in the event of a labour
dispute and is often seen as the last resort for workers’ organisations in pursuit
of having their demands met. A strike is expensive and disruptive for workers,
employers and society alike; and, when it occurs, it is owing to a failure in the
process of addressing working conditions through collective bargaining. Strikes
are often a symptom of broader and more diffuse issues, with the result that, even
if a strike is prohibited by national legislation or a judicial order, will not pre-
vent it from occurring if the economic and social pressures are sufficiently strong
(International Labour Organisation–ILO, 2001). The global and local context of
strikes is presented hereunder. The legislative framework which governs strike ac-
tion is also presented. The foregoing provides the context for the study.

International Labour Organisation’s Standards

The Committee on Freedom of Association (CFA) declared strike action to be a
right, and laid down the basic principles underlying this right, from which all oth-
ers to some extent derive. CFA recognises the right to strike to be one of the prin-
cipal means by which workers and their associations may legitimately promote
and defend their economic and social interests (ILO 1996:101). Over the years, in
line with this principle, the CFA has recognised that strike action is a right and not
simply a social act, and has also:
●● reduced the number of categories of workers who may be deprived of this

right, as well as the legal restrictions on its exercise, which should not be
excessive;
●● linked the exercise of the right to strike to the objective of promoting and de-

fending the economic and social interests of workers (which criterion excludes
strikes of a purely political nature from the scope of international protection
provided by the ILO, although the CFA makes no direct statement or indication
regarding sympathy strikes other than that they cannot be banned outright; this
matter is examined subsequently by the CFA; and
●● stated that the legitimate exercise of the right to strike should not entail prejudi-

cial penalties of any sort, which would imply acts of anti-union discrimination
(ILO 2000:11).

The ILO’s standards on strikes and essential services arose primarily from the
Interpretation of the Right to Organise and Collective Bargaining, Convention
98 of 1949, and The Freedom of Association and the Protection of the Right

224 Administratio Publica  |  Vol 27 No 3 September 2019

to organise, Convention 87 of 1948. One of the Conventions ratified by South
Africa (SA) is the Freedom of Association and Protection of the Right to Organise
Convention. In accordance with the SA legislation (Republic of South Africa,
1995:95), trade unions can only embark on strike action if the provision of mini-
mum service agreement is in place. Currently, no MSA has been concluded at the
Public Health and Social Development Sectoral Bargaining Council. Therefore,
employee’s providing public health essential services may not partake on a strike
action, anyone embarking on a strike action in the absence of the MSA would be
engaged in an unlawful and unprotected strike action and disciplinary action will
be taken against those workers.

South African legislation

The Constitution (1996) recognises the rights and responsibilities of its people,
which stipulates rights of the citizen, among other rights. Section 11 of the
Constitution, 1996 stipulates that everyone has the right to life; section 27 (1)
(a)–‘everyone has the right to have access to health care services, including
reproductive health care and no one may be refused emergency medical treat-
ment; and Section 23 (2) (c) – everyone has the right to strike (Republic of South
Africa, 1996:14).
The LRA defines a strike as: “The partial or complete concerted refusal to
work, or the retardation or obstruction of work, by persons who are employed
or have been employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving a dispute of any matter of mutual
interest between employer and employee. Any reference to work in this defini-
tion includes overtime work, whether it is voluntary or compulsory” (Republic of
South Africa 1995:221).
Section 64(1) of the LRA makes provisions for every employee to have the
right to strike and provide for every employer the remedy to lock-out should the
requirements of a protected strike or protected lock-out have been conformed
in accordance with the LRA. Section 65 of the LRA is a typical example of the
fact that the rights that the Constitution, 1996 grants are not absolute, and are
subject to limitations. The LRA prohibits employees providing essential services
from striking and defines essential service as –
●● “a service whose interruption endangers the life, personal safety or health of

the whole or any part of the population;

●● Parliamentary service; and

●● the South African Police Services” (Republic of South Africa 1995:218).

The South African definition of essential service is found to be similar to the

definition provided by the ILO, where ILO defines essential service as such that

Administratio Publica  |  Vol 27 No 3 September 2019 225

personal safety, life or health or part of, or of the whole population, becomes
endangered. Section 65 of the LRA prohibits essential service employees to strike,
because of the nature of services that they provide. In the case of rights that may
appear to be in conflict with each other in a certain case, for example, the right to
strike and the right to healthcare facilities, a fair balance must be found between
interests that are protected by each of these rights. This is addressed by Section
36 of the Constitution, 1996 where the Bill of Rights stipulates that the general
application of the Bill of Rights may also be restricted in such a manner that such
restriction is reasonable and justified in a free and democratic society, based on
human dignity, equality and freedom, considering all relevant circumstances. The
right to strike as legislated as it may be, infringes upon other rights, hence limita-
tions provided by law under the Bill of Rights accommodate the conflict between
entrenched rights and social interests represented by a democratic government.
Public service employees are allowed to enjoy their right to strike just like any
other employees. However, the limitations provided by law ought to provide an
unambiguous description and categorisation of the public service employees who
will be affected by such limitations on their rights to strike. The nature of the du-
ties and responsibilities performed by such public service officials, and the prob-
able effect of service interruption during strike action has to be considered when
defining such employees.
Furthermore, the LRA entrusted the Essential Service Committee (ESC) with
powers amongst others to decide whether or not a whole or a part of a service
should be designated as an essential service; and to ratify a collective agreement
for an MSA (Republic of South Africa 1995:14). The ESC has designated a sub-
stantial number of services as essential services, some of those services, specifi-
cally in the public sector, include inter alia:
a. “Emergency health services and the provision of emergency health facilities to
the community or part thereof;
b. Nursing;
c. Medical and paramedical services” (Republic of South Africa 2008:1).

The services that are not listed above are not regarded essential by the ESC, since
there are many employees, whose work is hardly vital to protect “life, personal
safety and health. The statement is supported by the Constitutional Court judg-
ment between South African Police Service v Police and Prisons Civil Rights
Union & Others the Labour Court held that the exclusion of the right to strike
applies only to members of South African Police Service (SAPS), does not apply
to SAPS employees. The court made reference to the SAPS Act which does not
exclude “non-members” of SAPS from participating on a strike action, and ruled
that those who are not employed under the SAPS Act, the service they provide
is not regarded essential, and emphasised on the fact that it was the service that

226 Administratio Publica  |  Vol 27 No 3 September 2019

was essential, and not the industry (Concourt 2011). The court found it difficult
to understand that finance administrators, and general assistance employees
provided an essential service in that should they participate on strike or their
withdrawal from service would impact negatively on service delivery or would
“endanger the life, personal safety and health of the whole or part of the popula-
tion” (Concourt 2011).
Consequently, the Constitution, 1996 cannot be read in isolation from the
LRA, as it clearly provides for a definition of a strike, essential services, processes
that should be followed before embarking on a strike and the conclusion of the
MSA. Equilibrium between the right to strike and the right to health care services
should be observed at all times.

Minimum services
Section 72 of the LRA states that the ESC may ratify any collective agreement
that provides for the maintenance of minimum services in a service that is a des-
ignated essential service. The advantage of this section is that services that are
declared to be minimum services become essential services, and only workers
who are employed within those designated services are prohibited from striking,
whilst other employees can enjoy their right to strike (Republic of South Africa
1995:95). It has been ascertained by the law makers that not everyone who is
employed in an essential service performs an essential service. This was substanti-
ated by Pillay (2012:13) who indicated that the past 15 years of the ESC’s existence
have demonstrated that strikes in health, police, municipal and court services
have not resulted in any reported loss of life. Frequent and sometimes prolonged
electricity and water cuts have inconvenienced communities and even devastated
businesses, but these too have not resulted in any reported loss of life. These
experiences have shown that these services can be minimised without endanger-
ment of lives (Pillay 2012:13).
The concept of minimum services is not defined in the LRA, but it is regarded
as the minimum service that an industry or workplace would require ensuring that
any interruption of services would not endanger the life, personal safety or health
of the whole or part of the population. This means a ‘reduced’ number of employ-
ees who will be required to continue working, ensuring minimum service during
a strike, to ensure that the service which is normally provided does not cease
entirely. Figure 1 is an example of minimum service within in an essential service.
The collective bargaining structure, where negotiations in respect of cost of liv-
ing adjustments (salary increases) are centralised for all public services, does not
allow for a separate collective bargaining structure for essential services. The legisla-
tors also recognised that not all public services are essential even within the public
health sector; hence the provision of the MSA was made and proves that the sectors

Administratio Publica  |  Vol 27 No 3 September 2019 227

Figure 1: Interpreting Section 72(b) of the LRA–Essential Service and Minimum
Service

Designated
Designated
essential
Essentialservices
Service A
A&&BB

Minimum Service
Minimum services

XX &&YY

Source: (Roskam 2011)

can continue with minimum service. According to the Public Service Coordinating
Bargaining Council (PSCBC) (PSCBC 2014), essential services and minimum servic-
es agreement has been a matter of discussion for a lengthy period of time with no
finality amongst relevant stakeholders. The PSCBC, Resolution 1 of 2007 provides
for establishment of a Joint Technical Working Group (JTWG) to draft and develop
a MSA. The JTWG was established and held several meetings in 2008 in persua-
sion of the MSA. PSCBC then also appointed an independent facilitator who would
have submitted reports on a monthly basis. The MSA was drafted, but parties could
not reach an agreement. To date, the MSA has not been signed by the relevant
parties, which will enable employees’ providing essential service to strike who are
currently prohibited to embark on strike action, because of the nature of their work.
If they decide to do so, it would be done illegally (PSCBC 2014).
Brand (2013: 8) states that employers seem not to have considered it to be
important to pursue MSA on the grounds that a much bigger quantity of public
sector workers are then not excluded from striking. Because South Africa’s essen-
tial service workers and non-essential services workers are often included in the
same bargaining unit, trade unions have successfully pursued strike action across
the whole bargaining unit, including essential services workers. Trade unions are
aware of that although the strike was unprotected, strikes by essential services
workers significantly increase pressure on the employer (Brand 2013:8). In other
countries that provide minimum services, their means of ensuring enforcement is
by way of penalties. When a strike is prolonged, the court can rule that the strike
must cease and that all concerned must report for work. It would seem that this

228 Administratio Publica  |  Vol 27 No 3 September 2019

issue is not political, but it is, since it involves citizens who are voters and those
who depend solely on public health services. Hence, the MSA, needs to include
tight regulation about consequences of prolonged strikes (De Bruin 2013:30).
This research study set out to provide guidelines for the establishment of a
MSA within the Public Health Sector to determine those employees that may
participate in protected strike action, and those who cannot and must instead
continue to provide minimum services within an essential service. In this way, no
constitutional and labour rights are violated.

RESEARCH DESIGN AND METHODOLOGY

This study applied a qualitative research design to acquire knowledge, opinions,
attitudes and behaviours regarding essential services (Creswell 2006:6; Kothari
2004:5). The target research sample was 50, selected via purposive sampling that
equally included 25 employees / management and 25 trade union officials from
the Western Cape Department of Health who were actively engaged in the col-
lective bargaining processes and had knowledge of the LRA.
Owing to the complexity of strike action in essential services, 23 open-ended
questions were designed to explore participants’ interpretation and understanding
of the provision made by the LRA for parties to conclude a MSA, which would
allow some employees within the essential service designate to embark on strike
action. The open-ended questionnaires were emailed to participants for conveni-
ence, while others were hand delivered as not all had access to emails. The text
data was analysed individually, comparisons drawn and common themes were
grouped together for interpretation.

RESULTS AND DISCUSSION

As a result of the 2007 and 2010 public service strikes, employers should have
established a mechanism to ensure that essential services were never interrupted
again. Analysis revealed that 19 respondents supported the conclusion of a MSA,
while 5 stipulated that the Department had to have a contingency plan in place; 4
supported compulsory arbitration as the best way to avoid a strike, and 2 suggested
the use of agency services. The literature review stipulated that minimum services
had to be provided within an essential service, which must remain operational dur-
ing the strike. The MSA is not defined by the LRA, but the LRA in Section 72 makes
provision for conclusion of an MSA. Most of the respondents had knowledge of
what a MSA was and how it should work. Although no definition is found in the
LRA, a definition should be part of the MSA itself, once concluded.

Administratio Publica  |  Vol 27 No 3 September 2019 229

 The respondents were requested to mention factors that the parties need to
consider prior to conclusion of a MSA that concerned the workers and may nega-
tively affect and cause division amongst them. One of their main concerns, was
the ‘no work, no pay’ principle, followed by the protection of non-striking em-
ployees. It is envisaged that employees who strike may suffer financially owing to
the implications of a ‘no work, no pay’ rule, while the results of their strike action
may well benefit all workers. This might cause conflict towards the workers who
provide minimum services and hence their safety might be at risk.
Furthermore, challenges which parties may face in an effort to conclude a
MSA that regulates minimum services within public services include the difficulty
of pre-determining numbers or the percentage of workers that would render such
minimum services. The division of employees, between those that will offer
minimum services and those that would participate in strike action, could cause
conflict based on the fact that the principle of ‘no work, no pay’ will apply, which
means that non-strikers will receive their full salary (a factor for consideration in
MSA). These two challenges are central to conceptualisation of the study’s objec-
tives, and this research aimed towards making recommendations for the effective
establishment of the minimum services.
Several substantive issues and concerns were mentioned in responses that would
be faced by involved parties, should the MSA be concluded, and hence it is believed
that this is why parties are reluctant to enter into this agreement. The employer has
a constitutional obligation to provide the public with health care services, while
conversely, trade unions use the strike as a fundamental tool to get the employer’s
attention in response to their demands, and they would also want to avoid creating
divisions among members. 5 respondents raised the concern by stating the service
delivery would be compromised, which could lead to loss of life. The principle of
‘no work no pay’ is also raised by 5 respondents as a challenge; while 5 mentioned
disunity among employees; 1 expressed concern about determination of who will
render the minimum service and while on the other hand 5 respondents states that
the division of employees might be the challenge; again the 4 respondents referred
to the protection of strikers; 3 referred to the agreement interpretation; 3 stated that
reaching consensus on various categories and enforcement should be considered;
2 respondents claimed that the strike is the only weapon that the employer under-
stands; and 2 did not address the question.
The majority of the respondents stated that the absence of the MSA provides
an opportunity for employees to strike and that there are serious repercussions
for the employer because service delivery will collapse; hence the need to
conclude a MSA. A substantial number of respondents concurred that employ-
ees participating in a strike action will also have to face the consequences of
being subjected to disciplinary action against them, and they might face the
possibility of being dismissed. Two respondents said that employees’ salaries

230 Administratio Publica  |  Vol 27 No 3 September 2019

will be negatively affected, while 5 respondents said that there will be no reper-
cussions, since the law permits employees to strike and one respondent went
further by saying that the strike will be protected. Five respondents argued that
employees will be lead to believe that they have the right to strike, while people
will do as they please and take no responsibility. Employees need to consult
with their relevant trade unions, which further highlights that it is important to
belong to a union, as they are in a position to give guidance and they have
a better understanding of these issues. Conversely, one respondent stated that
the employees will demand and operate outside of the provisions of the LRA
by losing confidence in trade unions and becoming unruly. This could lead to
tension between employees and their respective employers. During the Public
Service strike of 2010, when employees did not cooperate after being ordered
to suspend a strike and report for duty, they were dismissed. Although they
were reinstated following deliberations, they were disciplined and issued with
final written warnings. This shows that if there is no MSA in place, employees
may not understand fully what is expected of them in terms of service delivery.
They may even believe that it is their right to strike in the absence of an MSA, as
their trade unions will convince them. This is contrary to the LRA, which states
that employees should not strike unless an MSA is in place.
The vast majority of respondents, (17+5=22) indicated that striking employees
should take turns to do so, so that everyone could feel the effects of the ‘no work,
no pay’ principle. One respondent indicated that the trade unions should estab-
lish a strike fund; while 6 respondents suggested an implementation plan where
the agency fee money should be used to compensate for employees’ financial
losses as a result of striking. Since the majority of respondents referred to the chal-
lenge of the ‘no work, no pay’ principle as a threat during strike action, it shows
an awareness of the gravity of this challenge for all concerned parties, particularly
the trade unions. The separation of workers into those who will provide minimum
services and those who can strike would need to be done in a diplomatic manner,
while all should be included in any relevant consultation to avoid conflict.
The essential service workers are trapped in conflicting emotions among
exercising their own fundamental right to strike and performing their duties and
responsibilities in the workplace. It is, therefore, a difficult situation, which is
equally uncomfortable, and hence a MSA should be concluded. Without an MSA
the situation remains potentially explosive and might demotivate essential services
employees, because strikes are a way for employees to break a deadlock during
negotiations. Without an opportunity to exercise such a right, employees may
become demotivated since their rights may be undermined by the employer.
There is congruence between the literature and the research findings in favour
of enforcing the agreement with penalties for those who do not adhere to the re-
quirements of the agreement, while those employees who provide the minimum

Administratio Publica  |  Vol 27 No 3 September 2019 231

services and decide to join the strike should be penalised individually. In addition,
the trade unions must ensure availability of staff, or their members, to provide the
minimum service. The MSA must make provision for unions to ensure that agreed
upon staffing levels of minimum services are maintained during a strike. If more
than one union operates within a workplace and all of the unions participate in
the strike action, then they need to take collective responsibility to deliver the
minimum services. Failure to comply should render the strike unprotected and
employees will be subject to disciplinary action, while participating trade unions
should be penalised. Furthermore, sanctions should be imposed if parties do not
adhere to the MSA’s provisions.

CONCLUSION AND RECOMMENDATIONS

The conclusion of an MSA and the effective management of it to ensure firmness,
the study proposes the following recommendations:
●● Negotiation towards conclusion of a minimum service framework should be

done at PSCBC/PHWSDBC level and be filtered down to institution level,

where the designation of employees takes place.
●● The minimum service framework should stipulate aspects that the employer

has to deal with such as identifying the minimum services and identifying the
number of workers who will be obligatory to deliver these minimum services
and occupational categories. The employer has to make sure that those em-
ployees understand the reasons why they are not allowed to engage in strike
action and be informed of the consequences of possible disciplinary action
that should be taken against them, should they renege.
●● Employees that provide minimum services should realise that they will not

be expected to perform the duties of non-minimum service employees in the

event of a strike; although non-minimum service employees may be requested
to perform the duties of minimum service employees during a strike.

The principle of ‘no work no pay’ is a great concern, but the study recommends
that it should not affect employees that provide minimum services.
If the above-mentioned recommendations are applied, there will be harmony
between the provisions of the Constitution’s Bill of Rights (Republic of South
Africa 1996:6-20), as it currently present a challenge within the public health care
system, since public health care workers, as South African citizens, have the right
to strike, while the broader society has the right to life and health, which the
public health care services provide.
The results of this study show that the negotiating parties should conclude an
MSA framework that will serve as a guiding document that should be utilised at

232 Administratio Publica  |  Vol 27 No 3 September 2019

institutional level. The respective parties should not agree to a set number or per-
centage of workers to perform minimum services beforehand, but should rather
establish a framework of what services would constitute minimum services, which
will allow institutions to decide on the number of employees that will be required to
perform these functions before the commencement of a strike. If parties fail to agree
at institutional level on the number of employees or the specific work that should be
performed, the Essential Services Committee must then make such a determination.

NOTE
* Mrs Z Rikwe is employed in the HR department in the Western Cape Department of Public
Health. This article is based on her master’s mini-thesis under the supervision of Dr Liiza Gie
and guidance of Prof Harry Herbert Ballard entitled: “The effectiveness of the mechanisms to
manage strikes for essential services in the public health sector, Western Cape, South Africa”.

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AUTHORS’ CONTACT DETAILS

Mrs Zoliswa Rikwe Dr Liiza Gie
Department of Human Resource Management Department of Human Resource Management
Cape Peninsula University of Technology Cape Peninsula University of Technology
PO Box 652
Prof Harry Herbert Ballard Cape Town 8000
Extraordinary Professor Tel: +27 (0)21 460 3701
School of Public Leadership E-mail: giel@[Link]
University of Stellenbosch
Tel: +27 (0)82 200 7043
E-mail: ballardh15@[Link]

234 Administratio Publica  |  Vol 27 No 3 September 2019