THE SUBSTANTIVE AND PROCEDURAL LIMITATIONS ON THE

CONSTITUTIONAL RIGHT TO STRIKE

by

JOHANA KAMBO GATHONGO

Submitted in partial fulfilment of the requirements

for the degree of

LLM (LABOUR LAW)

at the Nelson Mandela Metropolitan University

Supervisor: Prof JA van der Walt

Submission date: January 2015
 PLAGIARISM DECLARATION

I, Johana Kambo Gathongo student number 205034501, hereby declare that the
treatise submitted in partial fulfilment of the degree LLM (Labour Law ) to be awarded
is my own work and that it has not previously been submitted for assessment or
completion of any postgraduate qualification to another University or for another
qualification.

Signature:………………………………………..
Date:………………………………………………
 TABLE OF CONTENTS
Page

SUMMARY ........................................................................................................... iv

CHAPTER 1: INTRODUCTION ............................................................................ 1

1.1 Background and rationale for the study...................................................... 1
1.2 Problem statement ..................................................................................... 7
1.3 Aims and objectives of the study ................................................................ 8
1.4 Research questions ................................................................................... 9
1.5 Significance of the study ............................................................................ 9
1.6 Research methodology .............................................................................. 10
1.7 Outline of the research ............................................................................... 11

CHAPTER 2: THE HISTORICAL DEVELOPMENT OF A STRIKE NOTICE

REQUIREMENT AND THE CONTENT REQUIRED THEREIN ........................... 13
2.1 Introduction ................................................................................................ 13
2.2 Metal and Allied Workers Union v BTR Sarmcol ........................................ 14
2.3 BAWU v Palm Beach Hotel ........................................................................ 15
2.4 Content of a strike notice ........................................................................... 17
2.5 What information must be contained in the strike notice? Should a
strike notice include the exact time and date on which the strike is to be
exercised?.................................................................................................. 20
2.5.1 Ceramic Industries Ltd t/a Betta Sanitaryware & Another v National
Construction Building Allied Workers Union & Others ................................ 20
2.5.2 County Fair Foods v Hotel Liquor Catering & Allied Workers Union .......... 21
2.6 When the strike does not start at the exact indicated time, does it become
stale or lapse? ............................................................................................ 22
2.6.1 South African Airways v South African Transport Allied Workers Union
(SATAWU) ................................................................................................. 22
2.6.2 Tiger Wheels Babelegi (Pty) Ltd TSW International v NUMSA .................. 23
2.7 Does the issue in dispute as well as the identity of all the strikers have to
be clearly articulated in the strike notice? .................................................. 25
2.7.1 Public Servants Association of South Africa v Minister of Justice and
Constitutional Development ....................................................................... 25
2.7.2 South African Transport and Allied Workers Union (SATAWU) and Others
v Lebogang Michael Moloto NO and Another ............................................ 26
2.8 Conclusion ................................................................................................. 30

i
CHAPTER 3: STATUTORY LIMITATIONS OF RIGHT TO STRIKE AND
CONSEQUENCES OF A PROTECTED AND AN UNPROTECTED STRIKE
UNDER THE LRA ................................................................................................ 33
3.1 Introduction ................................................................................................ 33
3.2 Limitations of right to strike in terms of the LRA ......................................... 34
3.2.1 Collective agreements that prohibit a strike ............................................... 35
3.2.2 An agreement requires the issue in dispute to be subjected to
compulsory arbitration ................................................................................ 36
3.2.3 The issue in dispute is one that a party has the right to refer to arbitration
or to the Labour Court in terms of the Act .................................................. 37
3.2.4 The person is engaged in an essential service, or a maintenance service 40
3.2.5 An arbitration award or a collective agreement regulates the issue in
dispute or any determination made by the Minister that regulates the issue
in dispute.................................................................................................... 42
3.2.6 Any determination made in terms of the Wage Act and that regulates the
issue in dispute, during the first year of that determination ........................ 42
3.3 The legal consequences of protected strike in terms of the Act ................. 43
3.3.1 Immunity from civil liability and breach of contract ..................................... 43
3.3.2 Protection against dismissal....................................................................... 44
3.4 The legal consequences of unprotected strike in terms of the Act ............. 45
3.4.1 Interdict ...................................................................................................... 46
3.4.2 Compensation ............................................................................................ 47
3.4.3 The dismissal of strikers............................................................................. 47
3.5 Conclusion ................................................................................................. 50

CHAPTER 4: FURTHER LIMITATION ON THE EMPLOYEES’ RIGHT TO

STRIKE v COLLECTIVE BARGAINING FOR THE PURPOSES OF REACHING
A COLLECTIVE AGREEMENT: STRIKE A BALANCE IN SOUTH AFRICA...... 52
4.1 Introduction ................................................................................................ 52
4.2 The nature of collective bargaining and the right to strike .......................... 54
4.3 Collective bargaining under the ILO ........................................................... 56
4.4 Collective bargaining under the Constitution and the LRA framework ....... 58
4.5 The nexus between collective bargaining and industrial action .................. 61
4.6 Conclusion ................................................................................................. 63

CHAPTER 5: THE RIGHT TO STRIKE IN TERMS OF THE LRA TOO

LIMITED? SOUTH AFRICA’S POSITION IS COMPARED TO THE ILO’S
JURISPRUDENCE ............................................................................................... 65
5.1 Introduction ................................................................................................ 65
5.2 International law and employees’ right to strike ......................................... 66
5.2.1 International human rights instruments ...................................................... 66

ii
5.3 European regional instruments providing an express right to strike ........... 69
5.3.1 The European Social Charter (1961) revised in (1996) .............................. 69
5.3.2 The Community Charter of the Fundamental Social Rights of Workers
(1989)......................................................................................................... 70
5.3.3 The Charter of Fundamental Rights of the European Union (2000),
revised in (2007) ........................................................................................ 71
5.3.4 The American Convention on Human Rights (PACT of San José, 1969) .. 73
5.4 The African Charter on Human and Peoples’ Rights (1981) ...................... 74
5.5 The Abolition of Forced Labour Convention 1957 ...................................... 74
5.6 Protection of employees’ right to strike under the international labour law. 75
5.7 Conditions and restrictions for exercising the right to strike ....................... 77
5.8 The position in South Africa ....................................................................... 80
5.9 Conclusion ................................................................................................. 81

CHAPTER 6: CONCLUSION AND RECOMMENDATION .................................. 83

BIBLIOGRAPHY .................................................................................................. 89

iii
 SUMMARY

This treatise discusses the increasing of the procedural and substantive limitations
on the employees’ right to strike. The Constitution permits the right to strike to be
limited in terms of the laws of general application. The Labour Relations Act (LRA) is
a good example. Such limitation must be reasonable and justifiable in an open and
democratic society, based on human dignity, equality and freedom. The study
sought to investigate whether further increasing the existing limitations on the right to
strike unduly breaches employees’ Constitutional right to strike and the purpose of
the LRA. Further, the study sought to find out whether the additional content
requirements in the strike notice amount to importing into the LRA additional
limitations on the fundamental right to strike that enjoys no textual support.

Through an extensive literature review, the findings arguably show that indeed further
increasing the limitations on the employees’ right to strike may unduly infringe their
right to strike. Moreover, the increase of the content requirements in a strike notice
creates an unnecessary hurdle to employees wishing to strike.

One of the most important finding made is that instead further increasing the
limitations on the right to strike, going back to the basics of negotiation to alleviate
strikes, particularly wage-related strikes is vital. To achieve this, it is important for
employers to re-establish social and individual relationships with their employees,
whereby they become aware of the issues that employees face on a daily basis.
Also, establishing proper workplace dialogue and forums would assist employers in
becoming aware of employees concerns. This would thereby prevent strikes, as
problems can be dealt with beforehand. The findings above informed in the
recommendations at the end of the study.

iv
 CHAPTER 1
INTRODUCTION

1.1 BACKGROUND AND RATIONALE FOR THE STUDY

The right to strike is the most visible form of collective industrial action that workers
employ with a view to forcing employers to the bargaining table to agree to their
demands.1 An employer’s task of planning to protect his business against an
impeding strike2 just became a little more complicated.3 The sight of policemen
brutally gunning down striking mineworkers at Marikana left the whole country
appalled. Since then, the rights of striking employees and the unions they belong to,
have once again come to the spotlight.4

It is worth noting from the onset is that the manner in which the Labour Relations Act5
regulates strikes has remained practically unchanged since 1995.6 Instead of
suggestion that allows employees to exercise their constitutionally guaranteed right
to strike, the Labour Relations Amendment Bill7 only envisions to limit this right even
further. In a similar reasoning the Department of Labour Deputy Director-General for
labour policy and industrial relations Mr Kettledas, noted that the solution is not really
amending the law, but rather in the proper implementation thereof.8

1 Van der Walt, Le Roux and Govindjee Labour Law in Context (2012) 203. See also Grogan
Collective Labour Law (2010) 141.
2 S 213 of the LRA defines strike as “the partial or complete concerted refusal to work, or the
retardation or obstruction of work, by persons who are or have been employed by the same
employer or by different employers, for the purpose of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest between employer and employee, and every
reference to "work" in this definition includes overtime work, whether it is voluntary or
compulsory”.
3 Maharaj and Stuart “Strike notices: one for all or all for one?” 2012-10-08.
[Link]
vexed-question (Accessed on the 25-12-2014).
4 De Vos “Constitutionally Speaking: Sharp Divisions on the Constitutional Court about the right
to strike.” 25 September 2012. [Link]
constitutional-court-about-the-right-to-strike/ (Accessed on 12/01/2014).
5 Act 66 of 1995. Hereinafter referred to as the LRA or the Act.
6 Du Toit and Ronnie The Necessary Evolution of Strike Law (2012) 200. See also Benjamin A
Review of Labour Markets in South Africa: Labour Market Regulation: International and South
African Perspectives (2005) 36.
7 Hereinafter referred to as the 2012 Bill.
8 Kettledas “Changing SA’s Labour Law not the Answer” 2013 (2013-7-31) Mining Weekly News
7 [Link]
07-31.

1
South Africa is a member of the International Labour Organization (hereinafter the
“ILO”). The Preamble to the ILO affirms that “whereas a universal and lasting peace
can be established only if it is based upon social justice, and whereas conditions of
labour exist involving injustice, hardship and privation to large numbers of people as
to produce unrest so great that the peace and harmony of the world are imperilled”,9
there can be no doubt that the right to strike is a very important instrument in the
collective bargaining in order to ensure the economic right of workers. This therefore
entails that a denial or undue limitation of this right would lead to a substantial
weakening of the bargaining power of workers as they cannot equally match the
strength of management in a case of an inevitable conflict of interests between the
parties.

In recognition of the important role of a right to strike, the ILO’s Committee on

Freedom of Association maintains that “the right to strike is one of the essential
means through which workers and their organizations may promote and defend their
economic and social interests”.10 These interests which workers seek to defend
through the exercising of the right to strike not only concern better working conditions
or collective claims of an occupational nature, but they also seek solutions to
economic and social-policy questions and problems facing the undertaking which is
of direct concern to the workers.11 Kahn-Freund is of the view that it is through the
exercise of the right to strike that workers attain more power to meet the needs of
maintaining equilibrium in industrial relations.12 This treatise supports that strike is the

9 See Preamble to the Constitution of the International Labour Organization of 1919. Available at
[Link] (Accessed on 23/2/2014).
10 Committee on Freedom of Association, Digest, par 522. See also Grogan, (Labour Law/
Employment Law Journal/ 2013/ April/ Strike notices What must they contain?): Grogan
indicates that employees use the right to strike as a weapon to prove to the employer that
resisting to accepts their demands could be fatal and costly than acceding to them. See also
FGWU v Minister of Safety & Security (1999) ILJ 1258 (LC) 1264 par 18 and CEPPWAWU v
Metrofile (Pty) Ltd (2004) ILJ 231 (LAC) 246 par 53. See also Art 8 United Nations International
Covenant on Economic, Social and Cultural Rights, which recognizes the important role of a
right to strike in support of economic and social interests, provided that it is exercised in
conformity with the laws of the particular country, in this case South Africa.
11 Committee on Freedom of Association, Digest, par 526.
12 Kahn-Freud and Hepple Laws against Strikes (1972) 5. Also Grunfeld note “if one set of human
beings is placed in a position of unchecked industrial authority over another set, to expect the
former to keep the interest of the latter constantly in mind and, for example, to increase the
latter’s earnings as soon as the surplus income is available…is to place on human nature a
strain it was never designed to bear” 52. See Grunfeld, Modern Trade Union Law (London:
Sweet and Maxwell, 1966) 33. See also Davies and Friedland, in Khan - Freund's Labour and
The Law 3rd ed (1983) 292. Advancing support to necessity of the right to strike in collective

2
most powerful instrument normally adopted by the employees in order to achieve
their demands.

The legality of the right to strike is derived from legislation, case law, international
Conventions of the country, collective agreements and in some countries like South
Africa, the Constitution. The ILO, particularly the Freedom of Association and
Protection of the Right to Organise Convention13 and the Right to Organise and
Collective Bargaining Convention,14 are the two leading instruments of international
protection of freedom of association, collective bargaining and the right to strike.
Although neither of these conventions expressly provides for a positive right to strike,
the jurisprudence developed by the Committee of Experts on the Application of
Conventions and Recommendations15 and the Committee on Freedom of
Association16 respectively recognise the existence of the right to strike.17

Expressing a similar view on the rationale for strikes, Servais notes that “the ILO
organs of control have had numerous occasions to take a position on the subject and
as a result, they have built up a body of principles recognizing that the right to strike
constitutes an intrinsic corollary to the right to organize and a fundamental right of
workers and of their organisations”.18

bargaining, Lord Wedderburn of Charlton further rationalised: “To protect such a right is not to
approve or disapprove of its exercise in any particular withdrawal of labour, it is to recognise the
fact that the limits set to the right to strike and to lockout are one measure of the strength which
each party can in the last resort bring to bear at the bargaining table. The strength of a union is
bound to be related to its power and its right to call out its members, so long as any semblance
of collective bargaining survives.” See Wedderburn The Worker and the Law (1986), 245.
13 Convention No 87 of 1948.
14 Convention No 98 of 1949.
15 Hereinafter referred to as “the CEACR”.
16 Hereinafter referred to as “the CFA”.
17 Creighton and Stewart, Labour Law (2005) 4th ed 533 and Gernigon, Odero and Guido, ILO
Principles concerning the Right to Strike International Labour Office, Geneva, 2000. The CFA
was established in 1951. After a relatively slow beginning, the number of cases submitted to the
CFA increased steadily for a number of years. Overall, the Committee has examined more than
2400 alleged breaches of the principles of freedom of association. It has also established an
elaborate jurisprudence, the key features of which are set out in the ILO’s Digest of decisions. It
does not concern “case law” in the strict sense of the word: The examination of periodic reports
on Conventions Nos 87 and 98 also constitutes an important part of the work of the CEACR.
For example, in 2007, the Committee addressed “observations” to 103 of the 147 States that
had ratified Convention No 87, plus direct requests to 55 States (including 30 that had also
received an observation).
18 Servais “The ILO law and the freedom to strike” Freedom of Association: Digest of Decisions
and principles of the Freedom of Association Committee of the Governing Body of the ILO
Geneva, International Labour Office, 5th ed (revised) (2006) par 523.

3
South Africa emerges from a history where workers, and in particular African
workers, did not enjoy a right to strike without consequences. However, following the
advent of the Constitution, the right to strike is now guaranteed to every worker and
indeed enjoys a high degree of protection in the South African Constitution.19 In fact,
the Constitutional Court has affirmed in National Union of Metalworkers of SA v
Bader Bop20 that this right is essential for the dignity of workers who in our
constitutional dispensation may not be treated as coerced employees. In addition, the
court acknowledges that it is by means of strike that workers are able to assert
bargaining power in industrial relations.21 Du Toit opines that there can be no
equilibrium in industrial relations without the freedom to strike.22

Post 1994, South Africa adopted various new forms of labour legislation, including
the LRA. The LRA gives form and content to the right to strike in the Constitution by
establishing substantive and procedural requirements. Similarly, it establishes a set
of limitations23 imposed on a party wishing to participate in a strike in order for a

19 S 23(2)(c) of the Constitution of the Republic of South Africa, 1996. Hereinafter referred to as
the Constitution. Chapter 2 Bill of Rights in the Constitution particularly s 23(2)(c) recognises the
right to strike which is guaranteed to every worker. See also Du Plessis and Fouche Practical
Guide to Labour Law (2007) 355. See also Re Certification of the Constitution of the Republic of
South Africa (1996) 4 SA 744 (CC).
20 (2003) 24 ILJ 305 (CC).
21 Ibid.
22 Du Toit, Woolfrey, Murphy, Godfrey, Bosch and Christie Labour Relations Law (1999) 236 237.
See also Davies and Friedland, in Khan-Freund's Labour and The Law (1983) 292. Advancing
support to necessity of the right to strike in collective bargaining, Lord Wedderburn of Charlton
further rationalised: “To protect such a right is not to approve or disapprove of its exercise in any
particular withdrawal of labour, it is to recognise the fact that the limits set to the right to strike
and to lockout are one measure of the strength which each party can in the last resort bring to
bear at the bargaining table. The strength of a union is bound to be related to its power and its
right to call out its members, so long as any semblance of collective bargaining survives.” See
Wedderburn The Worker and the Law (1986) 245.
23 S 65 sets out the limitations on right to strike or recourse to lock-out and provides as follows:
(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
(ii) a maintenance service.

4
strike to be considered as protected. In the same way, the ILO recognises that the
right to strike is not absolute and may therefore be curtailed in relation to
circumstances, participants, object and procedure.24

It is commonly accepted that for employees or unions to exercise this right, it must be
preceded by certain generally acceptable procedural requirements spelt out in the
Act. However, the Committee on Freedom of Association warns that such
requirements should be reasonable and must not in any event cause substantial
limitations on the means of action open to trade-union organizations.25 Equally, in
the case of SATAWU v Moloto,26 the Constitutional Court emphasized that:

“The right to strike is protected as a fundamental right in the Constitution without

any express limitation. The constitutional rights conferred without express
limitation should not be cut down by reading implicit limitations into them, and
when legislative provisions limit or intrude upon those rights they should be
interpreted in a manner least restrictive of the right if the text is reasonably
capable of bearing that meaning.”27

Currently, the LRA provides three procedural requirements which must be satisfied
by a trade union who wishes to embark on protected-strike action. The first

(2) (a) Despite s 65(l)(c), a person may take part in a strike or a lock-out or in any conduct
in contemplation or in furtherance of a strike or lockout if the issue in dispute is
about any matter dealt with in ss 12 to 15 (organisational rights.)
(b) If the registered trade union has given notice of the proposed strike in terms of
section 64(l) in respect of an issue in dispute referred to in paragraph (a), it may
not exercise the right to refer the dispute to arbitration in terms of section 21 for a
period of 12 months from the date of the notice.
(3) Subject to a collective agreement, no person may take part in a strike or a lock-out or in
any conduct in contemplation or furtherance of a strike or lock-out-
(a) if that person is bound by-
(i) any arbitration award or collective agreement that regulates the issue in
dispute; or
(ii) any determination made in terms of s 44 by the Minister that regulates the
issue in dispute; or
(b) any determination made in terms of the Wage Act and that regulates the issue in
dispute, during the first year of that determination.
24 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87),
Article 3; General Survey on Freedom of Association and Collective Bargaining 151. See also
International Labour Office, Labour legislation guidelines, Ch 5: Substantive provisions of labour
legislation the right to strike, [Link]
(Accessed 29 July 2014).
25 1996d. Freedom of association: Digest of decisions and principles of the Freedom of
Association Committee of the Governing Body of the ILO 4th ed (revised). Geneva par 498).
Hereinafter referred to as the ILO, 1996d.
26 (2012) 33 ILJ 2549 (CC).
27 Par 44.

5
procedural requirement is compulsory and requires that the issue in dispute be
referred to the Commission for Conciliation Mediation and Arbitration28 for a
conciliation meeting between the parties concerned. The courts have maintained that
if the dispute is not referred to the CCMA, or bargaining council as the case may be,
the strike is unprotected.29 The main reason for conciliation is an attempt to resolve
the dispute at the initial stage with the help of an appointed commissioner who
facilitate the negotiation. If the dispute is settled at conciliation, strike action is
averted.

However, if conciliation is unsuccessful or 30 days period has lapsed from date on

which the dispute was referred to the council or the CCMA for conciliation, the
Commissioner would subsequently issue a certificate stating that the issue in dispute
remains unresolved.30 It is the acquisition of this certificate which forms the second
procedural requirement of protected strike action in terms of the Act. Thirdly, any
employee and/ or union who, after the issuing of a certificate by the Commissioner,
wish to go out on strike must give an employer at least 48 hours’ notice in advance of
the intended strike action or a 7 days’ notice if the employer is the State 31 unless the
court allows for a shorter period.32

Grogan notes that it is sufficient for a notice to be given to a bargaining council if the
employer is bound by agreements of such council and the dispute relates to a
collective agreement concluded in the council.33 In terms of the LRA, such notice
must be in writing.34 This implies therefore that a strike notice made verbally may
render the strike to be unprotected. As the law currently stand, as long as these three
procedural requirements are fulfilled, the strike would be deemed to be protected.

28 Hereinafter referred to as the CCMA.

29 BP Southern African (Pty) ltd v Chemical Workers Industrial Union & Others (1998) 3 LLD 317;
Pick ‘n Pay v SA Commercial Catering & Allied Union & Others (1998) 19 ILJ 1546 (LC.)
30 Maritime Industries Trade Union of SA & Others v Transnet Ltd & Others (2002) 23 ILJ 2213
(LAC); Gillet Exhaust Technology (Pty) Ltd t/a Tenneco v National Union of Metalworkers of SA
on behalf of Members & another (2010) 31 ILJ 2552 (LAC). See also Grogan Collective Labour
Law (2007) 136.
31 S 64(1)(b) of the Act.
32 Grogan Labour Litigation and Dispute Resolution (2010) 25. See also Chris Todd Collective
Bargaining Law (2004) 60 61; Gillet Exhaust Technology (Pty) Ltd t/a Tenneco v National Union
of Metalworkers of SA on behalf of Members & another (2010) 31 ILJ 2552 (LAC).
33 Grogan Workplace Law (2007) 384.
34 S 64(1)(c) of the LRA.

6
This view is also accepted and supported by the Committee on Freedom of
Association.35 Grogan observes that these procedural requirements are meant to
ensure that strikes are not used as a first resort.36

As mentioned above, section 65 of the LRA sets out the limitations imposed on a
party wishing to participate in a strike. The Bill, while maintaining the above three
requirements, proposes the insertion of a further procedural requirement. 37 The
proposed amendment to this section, particularly the provisions dealing with
procedural limitations, has triggered great concern among trade unions.

1.2 PROBLEM STATEMENT

Understandably, the amendments in the Bill are intended to respond to unacceptable
levels of unprotected industrial action and unlawful acts in support of industrial action,
including violence and intimidation.38 It needs to be stressed that these additional
limitations to the traditional prerequisites merit further study. This is because, if
employees could not, in the last resort, collectively refuse to work, they could not
bargain collectively.39 In fact, in the absence of a right to strike “collective bargaining”
would only amount to “collective begging”.40 The amendments to the current LRA
are undoubtedly imminent. Certainly, their adoption will contain principles that seek
to severely restrict and limit the constitutional right to strike.

It is with particular interest that this treatise seeks to acquire more insight into these
amendments specifically the extension of the limits on procedural and substantive
requirements before employees could embark on a strike. Maserumule has
observed that the LRA, rather than positively implementing the constitutional right to

35 ILO, 1996d, par 500 – 510.

36 Grogan Labour Law/ Employment Law Journal/ 2013/ April/ “Strike notices What must they
contain?” (Accessed on 20/2/2014).
37 The South African Labour Guide “New amendments on the Labour Relations Act and the Basic
Conditions of Employment Act” available at [Link]
publications/new-amendements-on-the-labour-relations-act-and-the-basic-conditions-of-
employment-act. (Accessed on 26 January 2013).
38 Ibid.
39 Kahn-Freud Labour and the Law (1983) 292. See also John Brand Strike Avoidance – How to
Develop an Effective Strike Avoidance Strategy Paper presented at the 23rd Annual Labour Law
Conference, (August 2010) 7. [Link]
_Avoidance_presented_by_John_Brand.pdf (Accessed on 26-4-2014).
40 Ibid.

7
strike, serves to limit it and that the courts have, similarly, failed to protect the right to
strike and have instead been “preoccupied with giving effect to the limitation of this
right”.41 In S v Zuma42 and also in Numsa v Bader Bop43 the court emphasized that
the right to strike should not be limited unduly, in fact this right should be limited as
little as possible. Ben-Israel likewise confirms this assertion by emphasizing that
restrictions on the right to strike are acceptable as long as they do not place
substantial limitations on the means of action open to trade-union organisations.44

In an article written by Du Toit on the future of collective bargaining and labour law in
South Africa,45 employees who were interviewed therein following the 2007 strike
action argued that they were not ignorant to the importance of labour legislation.
Actually they portrayed a mindset cognisant of the limitations of the authority of the
law when confronted with the importance of strike action. One worker was quoted
saying that,

“I do not think the law is wrong as such. Law is supposed to defend the right to
strike and the rights of those not on strike. But how can we follow that law?
Thina, how are we going to be successful in winning our demands? We can’t
always be upright. Umthetho oyaphulwa, oyenzelwe oko phulwa (‘Laws were
made to be broken’). We must follow the majority. The majority vote for a strike.
We must find ways to make those others join the strike and the decision of the
majority. You are working, we are on strike. You must be afraid for your
safety.”46

1.3 AIMS AND OBJECTIVES OF THE STUDY

The underlying theme for this study is that the right to strike should not be limited
unduly. The primary aim of the study is to critically analyse the increasing of the
procedural limitation on the constitutional right to strike. The treatise also aims to
analyse and discuss the legal framework relating to strike notice and ballot
requirement in order for a strike to be regarded as protected. In doing so, an in-depth

41 Maserumule “A Perspective on Developments in Strike Law” 2001 22 ILJ 45 46.

42 (1995) 2 SA 642 (CC).
43 (2005) 2 BCLR 182 (CC). See also Chemical Workers Industrial Union v Plascon Decorative
(Inland) (Pty) Ltd 1990 ILJ 321 (LAC); Business South Africa v The Congress of South African
Trade Unions [1997] 6 BLLR 681 (LAC).
44 Ben-Israel International Labour Standards (1998) 118.
45 Du Toit “What is the future of collective bargaining and labour law in South Africa?” (2007) 28
ILJ 1405 1423.
46 Von Holdt “Institutionalisation, Strike Violence and Local Moral Orders Transformation: Critical
Perspectives on Southern Africa” 2010 72/73 Peer reviewed journals 142.

8
understanding of the meaning, purpose and content of a notice of strike as envisaged
by the ILO,47 and how this is translated in a South African context will be
investigated.

1.4 RESEARCH QUESTIONS

With this intention in mind this study investigates the following questions to find out
whether the proposed limitations are perhaps capable of meeting their stated
objectives or whether they are inconsistent with the Constitution.

1) Do these additional procedural requirements not only amount to importing into

the LRA additional limitations on the fundamental right to strike that enjoy no
textual support?
2) Equally, are these additional requirements not just means of denying
employees the exercise of their constitutional rights and therefore
contravening the purpose of the Act in section 1?
3) What about the separation of power between the legislature and the
judiciary?48 Are the courts not assuming the role of the legislature by
extending the limitations on right to strike by insisting that a strike notice
should contain certain additional details? If the legislature wanted such
limitations to be included in the Act it could have expressly done so.
4) Although the intention of these amendments for the future of strike law is
plausible, the question is: will they meet their stated objectives of reducing the
ever increasing incidences of strike violence? Are they sufficiently spot-on to
address the true basic realities that lie behind strike violence?

1.5 SIGNIFICANCE OF THE STUDY

In line with the above research questions, the study hopes to present a
comprehensive understanding of what the purpose of a strike notice really is, since
the LRA does not specifically deal with the issue in detail. It also endeavours to find

47 South Africa was re-admitted as a member of the ILO on 26 May 1994. This followed a period of
30 years of isolation from international labour forums after the country withdrew from the ILO in
1964 as a result of political pressure.
48 Rautenbach Constitutional Law (2003) 78 notes that Legislative authority is charged with the
power to make, amend and repeal rules of law while judicial authority has the power; if there is
a dispute, to determine what the law is and how it should be applied in the disputes.

9
out what information should be contained in the notice because as the law currently
stands, it is left up to the courts to decide. To achieve this, particular focus will be on
case-law analysis up to the very recent legal position. More importantly, such a study
is vital and desirable as it will help to prevent the over-limitation of this entrenched
constitutional right to strike.

Equally so, this study seeks to provide an insight as to whether the increase of
content in a strike notice is not just a means of denying employees their constitutional
right other than to promote labour peace as emphatically advocated by the Act.

In closing it will be submitted that, within the South African context, these limitations
particularly the ones extended by the courts, infringe the right to strike by causing
undue or unreasonable limitations on the right to strike. The separation of powers
between the legislative and judicial authorities is also interfered with as the courts in
this regard seem to have assumed the role of the legislature because if the
legislature desired such limitations to be included in the Act it could have expressly
done so.

1.6 RESEARCH METHODOLOGY

The research encompasses an extensive review of qualitative literature which hence
constitutes the basis for this research. Both primary and secondary sources will be
used. A collection of data in the form of legislation both national and international,
cases both reported and unreported, ILO reports, journal articles, textbooks, existing
data bases, policies, codes, the world-wide web, task-team reports, law-commission
reports, conference speeches and presentations on strike notices have been
gathered. The collected data for the research will be analysed to achieve the
anticipated outcome of the research. The analysis, data collection and process will
take place simultaneously throughout the research to avoid the risk of data
overloading, as well as to allow the researcher to approach the data analytically. The
findings, recommendations and suggestions for improvements will be addressed
throughout the research. A comparative analysis with other jurisdictions may be
considered where necessary.

10
1.7 OUTLINE OF THE RESEARCH
The research consists of five chapters including the foregoing chapter.

CHAPTER 2
Chapter 2 explores the history and development of a strike-notice requirement.
Development, tracing back from the late 1980s up to the current legal position will be
done.

The study will consider the importance and the general purpose that strike notice
serves. The significance of the strike notice, both to the employer/employer’s
organisation and employees’ union will be highlighted. It will also critique the
effectiveness of strike notice and whether it still serves a useful purpose in the
contemporary South African labour-relations landscape. More importantly the
research puts under the magnifying glass the debate surrounding the contents of the
notice. The study endeavours to present a comprehensive understanding as to what
information should be contained in the strike notice, since the LRA does not
specifically deal with the issue in detail. As the law currently stands, it is left up to the
courts to decide.

Particular emphasis will be to find out the following:

 Who must give the notice and to whom the notice must it be given? It also
considers what happens in case of delay and extension of notice period.
 What and how much information should be contained in the notice?
 Does the notice have to indicate the date and exact time at which the strike
will commence?
 Does the notice have to clearly articulate the issue(s) in dispute?

These further increase to the contents in a strike notice by our courts will be
measured against the Constitution.

11
CHAPTER 3
Chapter 3 investigates the current prescribed statutory limitations on the right to
strike. The consequences of a protected and an unprotected strike under the LRA
will be placed under the magnifying glass.

CHAPTER 4
Chapter 4 considers at whether a need for further limitation on the employees’ right
to strike in really the best solution, as opposed to engaging in a meaningful collective
bargaining process for the purposes of reaching a collective agreement.

CHAPTER 5
Whether or not the right to strike in chapter IV of the LRA, as well as in the proposed
amendment, is too limited as compared to the objectives of other jurisdiction and the
ILO, is discussed in this chapter.

CHAPTER 6
Conclusion and Recommendations

12
 CHAPTER 2
THE HISTORICAL DEVELOPMENT OF A STRIKE NOTICE
REQUIREMENT AND THE CONTENT REQUIRED THEREIN

2.1 INTRODUCTION
As noted in chapter one above, any employee and/ or union which, after the issuing
of a certificate by the Commissioner, wishes to go out on strike must give an
employer at least 48 hours’ notice in advance of the intended strike action or a 7
days’ notice if the employer is the State unless the court allows for a shorter period.
However, section 64(1)(b)(i) and (ii) contain an exception which requires that, where
the issue in dispute relates to a collective agreement to be concluded in a council,
such a notice must have been given to that council, or to where the employer is a
member of an employers’ organisation that is a party to the dispute, the notice must
have been given to that employers’ organisation.

The focus of this chapter is to establish the role of a strike notice as one of the
procedural requirements prior to a protected strike. The chapter will take us through
the statutory law, case law and common law regarding strike-notice requirement.

This chapter concludes with an evaluation of Bill 2012 proposal to be included in the
contents of a strike notice and its consequences.

The ILO Committee on Freedom of Association places an obligation to parties who

wish to embark on strike to issue a written prior notice to the employer indicating their
intention to strike.49 Likewise, in the South African context, it forms a vital procedural
requirement in terms of the LRA.50 This procedural requirement dates back as far as
the late 1980s in the Industrial Court’s decision in the case of Metal and Allied
Workers Union v BTR Sarmcol 51 and BAWU v Palm Beach Hotel.52 In both cases
the employees who had been dismissed for striking, referred unfair labour-practice

49 ILO, The Committee on Freedom of Association 1996d, par 502-504.

50 S 64(1)(b) of the Act. As discussed in Chapter 1 above.
51 (1987) 8 ILJ 815 (IC).
52 (1988) ILJ 1016 (IC) 1023g.

13
claims against their employers under the provisions of the 1956 Act. 53 The Industrial
Court found that employees who had gone on strike without giving any notice of
strike to their employer had acted unfairly towards their employer. The decisions in
both these cases have revealed that the Industrial Court played a pivotal role in the
development of the strike notice as a procedural requirement for protected industrial
action in South Africa.

It is at this background that this chapter discusses the history and development of the
strike-notice requirement. In order to effectively do so, it is essential to trace back
these developments through case laws and court decisions up to the current legal
position. This will assist in discovering how the courts have construed the
constitutionality of this requirement.

2.2 METAL AND ALLIED WORKERS UNION v BTR SARMCOL54

In this case, BTR Sarmcol55 employed 2160 employees. Owing to the downturn in
the general economy of the country as well as the rationalization of the production in
the plants at BTR, an extensive and a prolonged retrenchment occurred. As a result,
between 1981 and 1985, only 1108 employees had remained with a further reduction
of 102 weekly-paid employees by 1985. This massive retrenchment gave rise to
much dissatisfaction and uneasiness on the part of the workers. The court
considered various aspects of the union’s behaviour prior to, during the strike, as well
as after the dismissal of the employees for participation in the strike. Particularly, the
court found that the conduct and the manner in which the principal strike was
conducted by the strikers was unreasonable and unfair due to failure to give a prior
written notice indicating when the strike would commence.

In fact the court observed that, not only were the machines left running, but the
strikers also intimidated some of the monthly-paid staff.56

53 Act 28 of 1956. Hereinafter referred to as the “1956 Act”.

54 (1987) 8 ILJ 815 (IC).
55 Hereinafter referred to as the BTR.
56 (1987) 8 ILJ 815 (IC) 386G.

14
2.3 BAWU v PALM BEACH HOTEL57
Just a year after BTR was decided, the court was faced with a similar situation in
BAWU v Palm Beach Hotel. In this case, the applicants were dismissed by Palm
Beach Hotel following a strike on the 2nd May 1988. They approached the court
seeking for an order in terms of section 43(4)(b)(i) of the 1956 Act for their
reinstatement on terms and conditions not less favourable to them than those which
governed the employment of the individual applicants. Similar in BTR Samcol, the
court found that the conduct of the strikers was unreasonable and unfair in that they
had not given a strike notice indicating when the strike would begin. More
importantly, the Industrial Court held that the failure to give notice was a serious
failure, bearing in mind that the respondent [was] a hotel with obligations to its guests
as the hotel had been fully booked for the Easter holidays, a fact that BAWU was
most likely aware of.58 Further, the court noted that the applicants had no right to
inconvenience the guests in this way and to gather in the foyer, thus further
embarrassing the hotel guests.59

Subsequent to BTR Samcol and BAWU decisions, wealth of judicial authorities were
handed down by the Industrial Court to the same effect leading up to the late 1980s
to mid-1990s.60 In the years that followed, the old Labour Appeal Court created
under the 1956 Act,61 and the then Appellate Division of the Supreme Court also
gave their endorsement to the notion that it could be unfair to the employer if

57 (1988) ILJ 1016 (IC) 1023G. Hereinafter referred to as the BAWU.

58 (1988) ILJ 1016 (IC) 1020F.
59 (1988) ILJ 1016 (IC) 1020G. See also Zondo Thesis on “The Requirement of Notice of Industrial
Action in South African Labour Law” (2009) 7 10.
60 See also the decisions in the following cases: Ray’s Forge & Fabrication (Pty) Ltd v NUMSA &
others (1989) 10 ILJ 762 (IC) par 773J; SACWU v SASOL Industries (Pty) Ltd & Another (2)
(1989) 10 ILJ 1031 (IC) 1037C-E; BAWU & others v Asoka Hotel (1989) 10 ILJ 167 (IC) 177H-
178C; BAWU & others v Edward Hotel (1989) 10 ILJ 357 (IC); MWASA & others v Perskor
(1989) 10 ILJ 1062 (IC) 1068-1069D; BTR Dunlop Ltd v NUMSA (2) (1989 10 ILJ 701 (IC) at
707E-H; NTE v SACWU & others (1990) 11 ILJ 43 (N); FAWU v Middevrystaatse Suiwel Ko-
operasie Bpk (1990) 11 ILJ 776 (IC); FBWU & others v Hercules Cold Storage (Pty) Ltd (1990)
11 ILJ 47 (LAC); FBWU & others v Hercules Cold Storage (Pty) Ltd (1989) 10 ILJ 457 (IC);
Mercedes-Benz of SA (Pty) Ltd v NUMSA (1991) 12 ILJ 667 at 672 (an arbitration award);
NUMSA & others v MacSteel (Pty) Ltd (1992) 13 ILJ 826 (A) at 835B; NUMSA & others v Malva
(Pty) Ltd (1992) 13 ILJ 1207 (IC) at 1216D-E; CWIU v Reckett Household Products (1992) 13
ILJ 622 (IC); NUMSA v Three Gees Galvanizing (1993) 14 ILJ 372 (LAC); Doornfontein Gold
Mining Co Ltd v Num & others (1994) 15 ILJ 527 (LAC) at 542B; SACWU & others v BHT Water
Treatments (Pty) Ltd (1994) 15 ILJ 141 (IC) at 163F-164A; NUMSA & others v Maranda Mining
Co Ltd (1995) 16 ILJ 1155 (IC); FWCSA & others v Casbak Burger Box CC (1996) 17 ILJ 947
(IC) 955C-I; NUMSA & others v Datco Lighting (Pty) Ltd (1996) 17 ILJ 315 (IC).
61 S 17 of the 1956 Act.

15
employees went on strike without giving any prior written notice or warning to the
employer of their intention to embark on strike.62

In 1990 a technical committee of the National Manpower Commission was

established to consider various proposals which had been made for the amendment
of the 1956 Act. That technical committee recommended that there be a statutory
requirement for the giving of 24 hours’ written notice of the commencement of the
strike for a strike to be regarded a lawful strike.63 In fact, two pieces of legislation
were passed in 1993 which seems to suggest what could have been the first ever
statutory requirement for a strike notice in the history of South African labour law.
These were contained in sections 15(5) of the Education Labour Relations Act 64 and
section 19(4) of the Public Service Labour Relations Act.65 Expressing a similar view,
Olivier wrote an article in which he evaluated the PSLRA against international labour
standards as determined by the ILO, and discovered that a requirement for a strike
notice was acceptable provided that the notice, especially the period, was
reasonable.66

Notably, under the 1956 Act there was no requirement that a union should issue the
employer with a strike notice prior to embarking on a strike action. However, in 1995,
after the Act was passed, it contained a requirement in various sections for some or
other notice to be given before a strike could be resorted to.67 This marked the first
time in the history of South African labour law that a statute of general application 68
laid down such a requirement. Worth noting is that, even though, prior to the Act,
such a requirement was provided for in both the ELRA and the PSLRA as mentioned

62 See FBWU & others v Hercules Cold Storage (Pty) Ltd (1990) 11 ILJ 47 (LAC); NUMSA &
others v MacSteel (Pty) Ltd (1992) 13 ILJ 826 (A) 835B; NUMSA v Three Gees Galvanising
(1993) 14 ILJ 372 (LAC); Doornfontein Gold Mining Co Ltd v Num & others (1994) 15 ILJ 527
(LAC) 542B.
63 Smit and Fourie “Technical Committee of the National Manpower Commission: Proposals for
the Consolidation of the Labour Relations Act” (1990) 11 ILJ 285 297).
64 Act 146 of 1993.
65 Act 102 of 1993. Hereinafter referred to as the PSLRA. See also an Explanatory Memorandum
(1995) 16 ILJ 278 at 302.
66 Olivier “Labour Relations for the Public Service” 1371 1388. See also Ben-Israel International
Labour Standards 118.
67 See fn 1 above. See also ss 66(2)(b) and 77(1)(b) and (d) of the Act.
68 For instance, the Act is a law of general application within the meaning of s 36 of the
Constitution and builds on the foundations of the Constitution by providing that: “Every
employee has the right to strike and every employer has the right to lock-out as a recourse…”

16
above. Those were, however, not statutes of general application, since their
application was limited to the education sector and the public service respectively.

2.4 CONTENT OF A STRIKE NOTICE

Ever since the advent of the LRA in 1995, the key issues that have clouded our
courts with regard to strike notices related to the increase in the content details
therein and particularly, whether it specified the commencement and the scope of the
proposed industrial action sufficiently. As a consequence, this raised a discomfort
amongst trade unions which strongly oppose that the ever increasing contents in the
strike notices unduly limits the right to strike and should thus be subjected to the
constitutional scrutiny.

Besides the debate surrounding the contents of strike notice, other crucial questions
have occasionally been central to the debate. For example; who must give notice?
And to whom must notice be given? Should the details and the identity of the strikers
be included in the strike notice? Can a strike be commenced at a later stage than
the date or time given in the notice? What is the real purpose of a strike notice?

This treatise does not intend to discuss in detail the court’s exposition in each one of
these questions.

However, it is suffice to point out that they do not cause many constitutional-
interpretation obstacles when considering the employees’ exercising of their
constitutional right to strike. Having said that, nonetheless, one key question that has
sparked debate and that requires constitutional attention forms the core of this
chapter is:

 What information must be contained in the strike notice? In other words, what
information in the strike notices could be considered as sufficient and
therefore does not severely restrict the employees’ constitutional right to
strike?

To effectively answer the above question, it is vital to firstly re-visit the interpretive
provisions of the Act relating to strike notice in order to determine its meaning, scope

17
and application. The interpretive provisions are contained in sections 39(1), (2) and
(3), 232 and 233 of the Constitution, as well as section 1 read together with section 3
of the Act.69

The above provisions therefore oblige any person interpreting the Act to do so in light
of the Constitution and South Africa’s international obligations.70 This leaves the
courts with a crucial role in ensuring that the rights guaranteed in section 23(1) of the
Constitution are honoured. Equally, the courts have an important supervisory role to

69 S 39(1) of the Constitution deals with the interpretation of the Bill of Rights. It reads: “(1) When
interpreting the Bill of Rights, a court, tribunal or forum –
(a) must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign case law.”
S39(2) of the Constitution reads: “When interpreting any legislation and when developing the
common law or customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.”
S39(3) recognizes the existence of other rights other than those in the Bill of Rights. It reads:
“(3) The Bill of Rights does not deny the existence of any other rights or freedoms that
are recognized or conferred by common law, customary law or legislation, to the extent
that they are consistent with the Bill.”
S232 of the Constitution deals with the role and place of customary international law in South
Africa. It reads:
“s232. Customary international law is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.”
S233 of the Constitution deals with the role of international law in the construction of legislation
in South Africa. It reads:
“When interpreting any legislation, every court must prefer any reasonable interpretation
of the legislation that is consistent with international law over any alternative interpretation
that is inconsistent with international law.”
S1 of the Act states the purpose of the Act. It provides that the purpose of the Act is to “advance
economic development, social justice, labour peace and the democratization of the workplace”.
It seeks to achieve this purpose by fulfilling the primary objects of the Act. The primary objects
of the Act, as set out in s 1 thereof, include:
(a) giving effect to and regulating the fundamental rights conferred by s 23 of the
Constitution.
(b) giving effect to obligations incurred by the Republic as a member state of the ILO
(c) the provision of a framework for employees and trade unions, on the one hand, and
employers and employers’ organizations, on the other, to bargain collectively to
determine wages, terms and conditions of employment and other matters of mutual
interest.
(d) the promotion of orderly collective bargaining, and
(e) the effective resolution of labour disputes.
S3 of the Act deals specifically with the interpretation and application of the Act. It provides that:
“Interpretation of this Act – Any person applying this Act must interpret its provisions –
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.”
70 S 3 of the Act.

18
ensure that legislation giving effect to Constitutional rights is properly interpreted and
applied. Du Toit observes that it is trite that the Act be interpreted in compliance with
the framework of the Constitution and with South Africa's public international-law
obligations.71 Several courts’ decisions draw special attention to the fact that security
of employment forms a core value of the Act. Section 3 of the Act thus bears
testimony to the purposive approach72 in that it explicitly requires a court to interpret
the provisions of the Act in compliance with the Constitution.73

To return to the content of the strike notice, usually, as mentioned above, the key
issues raised in our courts revolve around the contents of a strike notice. Something
therefore seems to be lacking in the Act when the contents required in a notice of
strike are considered. The reason for mentioning this is that the Labour Court and
the Labour Appeal Courts have, over the past year or so, handed down a series of
judgments that effectively create new additional rules to the procedural requirements
as regards the notice of strike. Closely read, sections 64(1)(b) and 64(1)(c) of the
Act do not really indicate much regarding the strike notice. In fact, these provisions
require only that a trade union intending to go on a strike, must give 48 hours’ written
notice of the strike or 7 days’ where the State is the employer.74 Apart from these
time-periods, the Act is completely silent as to what must be included in the notice,
the form it must take, the purpose thereof and whether it should clearly articulate the
issue(s) to which dispute the strike relates.

For this reason, all the above determinations are left to the discretion of the court to
decide. That being so, the question then arises: does this discretion to determine the
contents required in the strike notice not amount to importing into the Act additional

71 See also Du Toit et al Labour Relations Law 66. See also fn 22 above and Chirwa v Transnet
Ltd and others [2008] 2 BLLR 97 (CC).
72 Purposive approach requires that the Labour Legislation must be interpreted in a manner which
best accords with the primary objective of the statute and s 39 of the Constitution. See Equity
Aviation Survives (Pty) Ltd v SATAWU & others [2009] 10 BLLR 933 (LAC), NUMSA v Bader
Bop (Pty) Ltd & Another (2003) 24 ILJ 305 (CC), SA Airways (PTY) Ltd v Aviation Union of SA &
others and Mondi Packaging (Pty) Ltd v Director General: Labour & others (2013) 31 ILJ 2558
(LAC). See also the minority judgement in SATAWU & Others v Moloto NO & Another (2012) 33
ILJ 2549 (CC).
73 De Waal et al the Bill of Rights Hand Book 131.
74 Basson Essential Labour Law (2009) 318-319. See also Tiger Wheels Babelegi (Pty) Ltd t/a
TSW International v National Union of Metalworkers of SA (1999) 20 ILJ 677 (LC).

19
procedural limitations on the fundamental right to strike, and an unnecessary hurdle
to the employees wishing to exercise their constitutional right to strike?

2.5 WHAT INFORMATION MUST BE CONTAINED IN THE STRIKE NOTICE?

SHOULD A STRIKE NOTICE INCLUDE THE EXACT TIME AND DATE ON
WHICH THE STRIKE IS TO BE EXERCISED?

2.5.1 CERAMIC INDUSTRIES LTD T/A BETTA SANITARY WARE & ANOTHER v
NATIONAL CONSTRUCTION BUILDING ALLIED WORKERS UNION &
OTHERS75
Notably, in some decisions the courts have emphasised that the strike notice must be
fairly specific and must, for example, indicate the time of the commencement of the
strike. Additionally, other decisions seem to suggest that that alone is not enough.
They suggest that the identity of the strikers must be mentioned in the notice. Be that
as it may, the question that still lingers is: how much information must be contained in
the notice, taking into consideration not to unduly limit the employees’ constitutional
right to strike? Clearly, a balance needs to be found due to Act’s silence regarding
this issue.

In Ceramic, the union served a notice on the employer informing it that “a strike shall
start at any time after 48 hours from the date of this notice”. The LAC held that the
strike notice was invalid on the ground that it did not specify the precise day on which
the strike will commence. More importantly, the court pointed out that it is not
sufficient to indicate on the strike notice that the strike will commence “at some future
time”. Grogan and Cheadle76 observe that the time to commence the strike need not
be specified to the minute or hour, since strike notice could vary depending on the
nature of the business.77 The court reiterated that section 64(1)(b) of the LRA must
be interpreted and applied in a manner that best gives effect to the primary objectives
of the LRA. Similarly, it was emphasised in this judgment that the primary purpose of
the strike notice is to give the employer advance warning of the proposed strike in

75 [1997] 6 BLLR 697 (LAC). Hereinafter referred to as Ceramic. See also Snyman, Van Heerden,
De Jager and Heynes South African Labour Relations Explained (2008) 179; Fidelity Guard
Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1998) 20 ILJ 260 (LAC)
and Du Toit et al Labour Relations Law: A Comprehensive Guide (1999) 237.
76 Cheadle et al Current Labour Law (2001) 73.
77 In Grogan Collective Labour Law (2010) 168 for example Grogan observes that shift workers
would need to state in their strike notice that the strike will commence from the start of a
particular shift.

20
order that it might prepare for the ensuing power-play,78 or as Grogan puts it, a strike
notice serves to warn the employer that “words are about to escalate into deeds”.79
The court concluded therefore, that this purpose is defeated if the employer is not
informed in the written notice in exact terms when the proposed strike will
commence.

Subsequently, the court in Western Platinum Ltd v National Union of Mine Workers80
clarified the Ceramic Industries. Here, NUMSA notified the employer that the strike
would commence on Wednesday, 15 March 2000 “on or before 15:00”. While relying
on Ceramic Industries, the employer argued that there was no compliance with
section 64(1)(b) of the Act because the notice did not specify the exact time of the
commencement of the strike. The Labour Court differentiated between the two cases
and found that in Ceramic Industries, the trade union did not specify the date and
time but in this case, the date and time were specified. It further argued that the
purpose of the strike notice identified in Ceramic Industries was achieved. The court
was therefore satisfied that the strike notice complied with section 64(1)(b) of the Act.

2.5.2 COUNTY FAIR FOODS v HOTEL LIQUOR CATERING & ALLIED

WORKERS UNION81
In this case, the employees engaged in a strike over the employer's refusal to
bargain with the trade union because it no longer represented the majority of
employees in the workplace. The union referred its dispute for conciliation and after
the 30 day period gave the employer more than 13 days’ notice of its intention to
strike. The issue before the court was whether this strike notice gave the employer
proper warning and the opportunity to take other steps to protect its business. The
court held that it would be “formalistic in the extreme” to declare the notice invalid
because it failed to specify the time of commencement. Therefore the court
concluded that a strike notice need not specify the precise time of the day when the
strike will start. Technically, the court noted that, if that would be the case, then a
78 [1997] 6 BLLR 697 (LAC). See also in Ceramic 701-702, where the court pointed out that the
warning serves for two purposes: firstly, it allows the employer to prevent the intended power
play by giving in to the employees demands or secondly, it cautions the employer to take steps
to protect his/her business when the strike starts.
79 Grogan Strike notices: What must they contain 1. See also Seady and Thompson “Strikes and
Lockouts in South African Labour Law” De Jure 314.
80 (2000) 21 ILJ 2502 (LC).
81 (2006) 27 ILJ 348 (LC).

21
notice specifying that a strike will start on a specific day means that a strike will
commence at the stroke of midnight.

2.6 WHEN THE STRIKE DOES NOT START AT THE EXACT INDICATED TIME,
DOES IT BECOME STALE OR LAPSE?

2.6.1 SOUTH AFRICAN AIRWAYS v SOUTH AFRICAN TRANSPORT ALLIED

WORKERS UNION82 (SATAWU)
While referring to Ceramic Industries, the court in SA Airways v SATAWU reaffirmed
that, although a strike is fundamental in its importance and purpose, it is not an end
in itself. The requirement of 48 hours’ notice of intended strike action is to afford the
employer an opportunity to deliberate on the implications of the proposed action and
to decide whether to resist or to accede to the employees’ demands. The notice
must therefore not only articulate the union’s and employees’ demands sufficiently for
that purpose, but should also specify the date and the time at which the strike would
begin.83 The court further noted that failure to do so would undermine orderly
collective bargaining, a value to which the Act expressly subscribes.84

What seems clear from the foregoing case law is that it is not sufficient to only state
in the strike notice the date on which the strike will be embarked on. A further
requirement which in my opinion enjoys no textual support in the LRA is proposed,
i.e. the inclusion of the exact or precise time at which the strike will commence. The
question that arises is: does the failure to indicate the exact time at which strike will
commence really undermine orderly collective bargaining? The answer should be
negative because this requirement amounts to importing into the Act an additional
limitation on the exercising of the constitutional right to strike.

Furthermore, the court’s decisions in Ceramic Industries and South African Airways
drive home a point that the inclusion in the strike notice of the exact time that a strike
will commence is vital. However, be that as it may, what happens if the strike does

82 (2010) IJL 1219 (LC).

83 Par 26. See also Construction and Allied Workers Union & others v Modern Concrete Works
[1999] 10 BLLR 1020 (LC) where a notice of an intended lock out was held to be deficient
because it made reference only to a meeting at the CCMA and a failure to resolve “the current
dispute”.
84 Par 28.

22
not start at the exact indicated time? Will that lead to an indication that the strikers
have waived their right to strike, or does the notice lapse?

Concerning this issue, the leading case of Tiger Wheels Babelegi TSW International
v NUMSA85 will be considered.

2.6.2 TIGER WHEELS BABELEGI (PTY) LTD TSW INTERNATIONAL v NUMSA

In this case, the Labour Appeal Court took a somewhat more liberal view on strike-
notice requirement. The court had to decide among other issues on the status of the
strike notice. The key question was whether the strikers who had failed to
commence their strike on the day indicated on the strike notice, ie 1 September
1999, were entitled to commence their intended strike 3 days after the day specified
in the notice, ie 4 September 1999.

Grogan and several other case laws seems to suggest that employees intending to
go on strike are not obliged to embark on strike on the day indicated in the notice and
similarly, their right to strike is not waived as long as it was preceded by proper
referral.86

In the Tiger Wheels Babelegi case, the court found that nothing in the Act obliged the
employees to commence their strike on the time or date stipulated in the notice
provided that it is within a reasonable time thereafter.87 It was noted further that the
Act only requires at least a 48 hours’ written notice be served to the employer prior to
the commencement of the strike. The court emphasised that the question whether
employees had waived their right to strike under the circumstances was a question of

85 (1999) 20 ILJ 677 (LAC). See also Transport Motor Spares v National Union of Metalworkers of
SA (1999) 20 ILJ 690, SA Clothing & Textile Workers Union v Stuttafords Department Stores
Ltd (1999) 20 ILJ 2692 (LC).
86 Grogan Collective Labour Law 168. See also Chamber of Mines of SA v NUM & others(1987) 8
ILJ 68 (A) and Free State Consolidated Gold Mines (operations) Ltd operating as President
Brand Mine v NUM & others (1987) 8 ILJ 606 (O) 610F, Transportation Motor Spares v National
Union of Metalworkers of SA and Others (1999) 20 ILJ 690 (LC).
87 Chicktay 26th Annual Labour Conference Paper presented at Santon Convention Centre on
Case Updates Johannesburg (30 July – 1 August 2013) 20. See also Du Toit et al Labour
Relations Law; A Comprehensive Guide (1999) 384 385. See also Free State Consolidated
Gold Mines (Operations) Ltd operating as President Brand Mine v NUM & others (1987) 8 ILJ
606 (O) 610F and Smith and Thomas Smith and Woods Industrial Law (1996) 609.

23
fact that had to be determined inter alia by the length of the delay in commencing the
strike.

The court concluded that the employees and their union did not waive their right to
strike, and as a result they were entitled to commence their strike on the 3 rd day.
Further, the court found that the delay was not unreasonable since the delay did not
defeat the purpose of giving notice which was to give the employer advance warning
in order to prepare for the power play that would follow. However, in Western
Platinum Ltd v National Union of Mineworkers,88 the court warned that a delay of over
a year and a half was unreasonable and may render the dispute stale and
consequently unprotected particularly since the union had never indicated a serious
intention to strike.

Aligning itself with Tiger Wheels Babelegi, the Labour Court in Public Servants
Association of South Africa v Minister of Justice and Constitutional Development89
restated the principle that failing to commence the strike on the specified day in the
strike notice does not invalidate the strike. Further, unlike in the Western Platinum
Ltd v National Union of Mineworkers case above, the court concluded in Public
Servants Association of South Africa v Minister of Justice and Constitutional
Development that taking into account all surrounding circumstances, a delay of 19
months to take a strike action was not unreasonable. The court noted with caution
that there was no any indication, evidence or act on the part the union that suggested
that it had waived or abandoned its right to strike.90

A similar question arose in Transport Motor Spares v National Union of Metalworkers

of SA,91 where employees had commenced their strike on the day indicated in the
strike notice, but had suspended the strike the following day in order to participate in
retrenchment consultations with the employer. Some 9 days later, the employees
resumed the strike without giving a further notice of strike to the employer. For that

88 (2002) 21 ILJ 2502 (LC).

89 [2001] 11 BLLR 1250 (LC). See also Transportation Motor Spares v National Union of
Metalworkers of SA and Others (1999) 20 ILJ 690 (LC) where it was held that if employees who
have already commenced striking temporarily suspend the strike, they need not issue a fresh
notice to strike or refer the dispute for conciliation again.
90 689C-D.
91 (1999) 20 ILJ 690 (LC).

24
reason, the employer argued that the strike was unprotected. The court disagreed,
finding that the employees who suspend a strike need not give a further notice before
they resume the strike especially if the initial notice was properly given.

Given the above conspicuous disparities many questions are left unanswered. For
instance, if failure to commence the strike on the specified day does not defeat the
purpose of orderly collective bargaining as decided in the SATAWU judgment above,
then, how can failure to indicate the exact time at which the strike will commence be
said to defeat the purpose of the notice? Even if it is said that it is not compulsory to
commence a strike at the time or on the day given in the notice, and that the strike
can commence on some later day, the follow-up question will be: would this
interpretation of the statute not defeat the purpose of a strike notice as articulated by
the court in the Ceramic Industries case?

It is submitted that, where a strike notice indicates the date, failure to indicate the
exact time does not undermine orderly collective bargaining. To demand that a
notice must not only indicate the date but also the exact time at which the strike will
commence amounts to importing an additional requirement which unreasonably limits
the fundamental right to strike.

2.7 DOES THE ISSUE IN DISPUTE AS WELL AS THE IDENTITY OF ALL THE
STRIKERS HAVE TO BE CLEARLY ARTICULATED IN THE STRIKE
NOTICE?

2.7.1 PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA v MINISTER OF

JUSTICE AND CONSTITUTIONAL DEVELOPMENT
The employer argued that the notice was defective because it did not clearly set out
the “subject matter of the dispute”. The court rejected this and held that the
grievance need not be set out in the strike notice as the notice will have been
preceded by negotiations and at conciliation meetings where opportunities would
have been created to explore the nature and ambit of the demand or the dispute.
The court noted further that the demand that the notice should clearly articulate the
issue in dispute would amount to a “mere formality”.

25
In SAA v SATAWU 92 (discussed below) the court differed from the Public Servants
Association of South Africa decision above. The Labour Court stated that the
employer must be in a position to know with some degree of precision which
demands a union and its members intend to pursue through strike action, and what is
required to meet those demands.93 The court held that, if a notice fails to clearly
articulate the issue in dispute it renders the notice invalid because it undermines
orderly collective bargaining.

A view appears to have developed that an additional requirement is being introduced

which further limits the employees constitutional the right to strike, as the court goes
further than the Public Servants Association case above. To demand that a notice
must clearly articulate an issue in dispute overlooks the fact that during conciliation
the issue in dispute and most key issues are examined. Furthermore, it is to be
noted that when the notice is issued the employer is already aware of the issue in
dispute.

2.7.2 SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION

(SATAWU) AND OTHERS v LEBOGANG MICHAEL MOLOTO NO AND
ANOTHER94
In this case, the respondents were the liquidators of Equity Aviation Services which
rendered services to various airports within South Africa. The majority of its
employees were members of SATAWU.

SATAWU issued a strike notice after the parties had failed to resolve a wage dispute
through conciliation. The strike notice stated that:

“We intend to embark on strike action on 18 December 2003 at 08H00.”

Employees who were not members of SATAWU participated in the strike

notwithstanding their failure to comply with the provisions of section 65 of Act relating
to protected strike action. Accordingly, those employees who did not give the

92 (2010) JOL 24947 (LC).

93 Par 27.
94 [2012] ZACC 19 (CC).

26
required notice were subsequently dismissed for their unauthorized absence from the
workplace.

Both the SCA and the minority judgment in the Constitutional Court found in favour of
the employer. They agreed with the employer that a purposive interpretation of the
provisions is necessary and that is to warn the employer of the impending power play
to enable it to make informed decisions.

The court noted that in order to serve any purpose at all, the notice must be issued
by, or on behalf of the parties who intend to strike. This approach promotes orderly
collective bargaining as it enables the employer to reasonably determine the extent
of and properly prepare for the impending strike.

The majority in the Constitutional Court disagreed with the above reasoning and held
that the SCA had prescribed an incorrect meaning to section 64(1)(b) of the Act. In
terms of section 64(1)(b) of the Act every employee has the right to strike and every
employer has recourse to lock-out, if in the case of a proposed strike, at least 48
hours’ notice of the commencement of the strike has been given to the employer in
writing.

The Constitutional Court also emphasised that the language used by the legislature
expressly requires only notice of the commencement of the strike to be given to the
employer by anyone involved in the dispute, and does not oblige every participating
employee to issue the notice to exercise the right to strike.

The court stressed that, in interpreting the section to mean what it expressly says is
less intrusive of the right to strike, it creates greater certainty than an interpretation
that requires more information in the notice which serves the purpose of the Act
particularly that of orderly collective bargaining, and gives proper expression to the
underlying rationale of the right to strike, namely the balancing of social and
economic power. The court further noted that to require more information than the
time of its commencement in the strike notice from employees, in order to strengthen
the position of the employer, would run counter to the underlying purpose of the right

27
to strike in our Constitution, namely to level the playing fields of economic and social
power already generally tilted in favour of employers.

The right to strike is a fundamental right in our Constitution. The Act contains no
express requirement that every employee who intends to participate in a strike must
personally or through a representative issue a notice. There is no need for the non-
union members to issue a separate notice, and therefore according to the
Constitutional Court's decision other trade unions’ members or non-union employees
are entitled to piggyback on a strike notice which has not been issued on their behalf.

CIRCUMSTANCES UNDER WHICH PARTIES MAY DISPENSE WITH SECTION

64(1) STATUTORY PROCEDURE
Section 64 (3) of the Act provides an employer or employee, as the case may be,
with four exceptions requiring no need to give the prescribed 48 hours’ strike notice
and conciliation. These are discussed below.

 In terms of section 64(3)(a) of the Act, there will be no need for a further strike
notice if parties to the dispute are members of a bargaining council and the
dispute has been dealt with by that bargaining council in accordance with its
constitution. However, such provisions in the bargaining council’s constitution
must be valid.95 In Security Services Employers’ Organisation & others v SA
Transport & Allied workers Union,96 for example, the employer approached the
Labour Court seeking for an interdict against a strike by the security guards,
based on an addendum to the council’s constitution. The addendum provided
that disputes should be settled by a majority vote instead of proportional
representation. 12 unions had engaged in the strike. However, after the strike
was called off, save for only 1 union (SATAWU), the other 11 unions agreed
on a wage agreement between them and the employer. Evidently, the rule for
settlement by majority vote would have stripped of SATAWU its voting power,
which had been based on its having had as members an overwhelming
majority of employees falling within the council’s jurisdiction The employer,
without success, appealed to the LAC against the decision of the Labour Court

95 Grogan Collective Labour Law 171.

96 [2006] ZALAC 3.

28
 which had found that the Council’s purported adoption of the amendment was
in breach of its constitution and therefore void.

 Under section 64(3)(b) of the Act parties may enter into a collective agreement
in terms of which they agree on a procedure to be followed prior to embarking
on a strike. This agreement may include that a notice or an alternative
method of notification be used, and hence the strike will be considered
protected. The Labour Court noted in Columbus Joint Venture t/a Columbus
Stainless Steel v NUMSA97 that strikers have two avenues of ensuring that
their strike is protected. One is to comply with the provision of section 64(1);
the other is to comply with the procedure contained in a collective agreement.
The court added that the choice rests with the would-be strikers. Once they
have complied with the provision of section 64(1), even though they failed to
comply with the collective agreement, the strike will be protected. Similarly,
this reasoning was followed by the LAC in Country Fair Foods (Pty) Ltd v Food
& Allied Workers Union and Others.98

 Where the employees strike in response to an unprotected lock-out by the

employer, in terms of section 64(3)(c) of the Act, such employees are
exempted from following the procedural requirements. In the same way, if
employees embark on an unprotected strike, the employer may respond by
means of an automatically protected lock-out, despite non-compliance with
section 64 procedures.99 Grogan observes that it would be time-consuming to
go through the prescribed procedures if the employees or the employer as the
case seek to retaliate for an unlawful strike or lock-out respectively.100

 In terms of section 64(3)(e) read together with section 64(4) and (5) of the Act,
no notice of a strike need be given where the employer has unilaterally

97 [1997] 10 BLLR 1292 (LC).

98 (2001) 22 ILJ 1103 (LAC). See also Chubb Guarding SA (Pty) Ltd v SATAWU (2005) 26 ILJ
1670 (LC) where the court declined to follow the approach in Country Fair Foods (Pty) Ltd v
Food & Allied Workers Union and others above by finding that the number of workers who
participated in the secondary strike was disproportional to the number engaged in the primary
strike.
99 Basson et al Essential Labour Law 323.
100 Grogan Collective Labour Law 172 173.

29
 changed the employees’ terms and conditions of employment or threatens to
introduce such changes, and the employer has failed to comply with a request
that it revoke the changes or through an interdict refrain from implementing
them.101 Section 64(4) of the Act is often referred to as the status quo
provision. The section requires that an employee or trade union referring a
dispute concerning a unilateral change of terms and conditions of employment
to a bargaining council or to the CCMA, in the referral, and for the period of
conciliation process,102 requires the employer not to implement unilaterally the
change to the terms and conditions of service, or if the employer has already
done so, to restore the status quo.

Notably, the relief afforded under section 64(5) of the Act is only temporary
since the employer is precluded from implementing the change only until that
moment when the employees acquire the right to embark on strike. This
means therefore that, as soon as the certificate is issued or 30 days since the
referral, the changes may be implemented unilaterally by the employer.103

2.8 CONCLUSION
As discussed above, the procedural requirement of a strike notice prior to strike
dates back as far as the late 1980s in the Industrial Court’s decision.

Section 64(1)(b) and (c) of the Act do not indicate much about the strike notice. The
Act only requires that a trade union intending to embark on a strike must give a 48
hours’ strike notice (or 7 days’ if the employer is the State). Besides this, the Act is
silent regarding the content, the form it must take and whether it should specify the

101 See Staff Association for the Motor and Related Industries (SAMRI) v Toyota of SA Motors (Pty)
Ltd (1997) 18 ILJ 374 (LC) where the court found that a unilateral change to an employee’s
motor benefit scheme fell within the ambit of s 64(4) and (5) of the Act and the conduct of the
employer accordingly contravened these provisions . Contrary, in NUMSA & others v Alfred
Teves Technologies (Pty) Ltd [2002] 10 BLLR 995 (LC), the court dismissed an application for
an interdict restraining the employer from implementing the new shift system and from
disciplining the employees who refused to comply with it. The court found that a change in shift
arrangements was not a unilateral amendment to the workers’ terms and conditions of
employments.
102 Kgasago v Meat Plus CC [1999] 5 BLLR 424 (LAC).
103 See SATAWU v Natro Freight (Pty) Ltd [2006] 8 BLLR 749 (LC). See also Monyale v Bruce
Jacobs t/a LV Construction (1998) 19 ILJ 75 (LC) where similarly the court confirmed that the
notice operates until a certificate is issued or until 30 days period has elapsed.

30
issue in dispute. Building on earlier case law, the Labour Court confirmed that the
two main purposes of a strike notice is, firstly, to enable the employer to decide
whether its interests are best served by giving in to the union’s demand and, second,
to take steps to protect its business. This means that a strike notice must specify the
date and time at which the strike action was to commence as this would enable the
employer to take whatever steps it wished to take in order to protect its business at
the time the strike commences.

What, however, stands out in all of these cases is the fact that it is the purpose of the
strike notice to give the employer a chance to reflect on the proposed action and their
response thereto. Section 64(1)(c), read in its proper context and read against at
least two of the primary objectives of the Act, which is to promote collective
bargaining and to promote the effective resolution of labour disputes, must be
interpreted to mean that the 48 hours’ notice serves as an opportunity to parties to
reflect on the consequences of the strike or lock-out notice. Any other reading of this
section would undermine the primary objectives of the LRA as set out in section 1 of
the Act.

The Labour Appeal Court decision in Equity Aviation Services v SATAWU dealt with
the question whether the employer was entitled to know exactly who would
participate in a strike. The majority in this court held that the employer is entitled only
to notice the commencement of the strike, and it is not entitled to be informed of the
identity of the employees who will participate in the strike.

It must be borne in mind that most decisions discussed in this chapter have
extensively extended the requirements of the strike notice, as laid down in section
64(1) of the Act. It is no longer sufficient for the union merely to give notice; our
courts now require a lot more detail. There are judicial uncertainties as
demonstrated in case law at this stage, such as how much precision will be required
of a trade union when it formulates a strike notice. But one requirement that stands
out clearly is that the unions can no longer just notify the employer of the date and
time at which the strike will commence. No doubt, further developments on this point
can be expected.

31
Notably, the proposed amendments intend to achieve their purpose by further limiting
the circumstances within which strike action can be taken. It is proposed that, if the
dispute is one which can be referred to arbitration or the Labour Court in terms of any
employment law, strike action is prohibited.

Therefore, although the Labour Relations Amendment Bill 2012 attempts to create
some form of structure regarding the purpose of and execution of industrial action,
just as with any other proposed amendments, ambiguity must first be eliminated to
ensure successful implementation of the suggested changes, particularly regarding
the issue of strike notice in section 64 (1)(b) (c) of the Act.

32
 CHAPTER 3
STATUTORY LIMITATIONS OF RIGHT TO STRIKE AND
CONSEQUENCES OF A PROTECTED AND AN UNPROTECTED
STRIKE UNDER THE LRA

3.1 INTRODUCTION
As it was noted in Chapter 2, strike notice forms a very important procedural
requirement prior to embarking on a strike. Much debate concerning the purpose it
serves to the employer and the employee continues to spark even more discussion.
Similarly, the ever increasing content required in a strike notice by our courts
arguably still poses some unnecessary limitations for the employees wishing to
exercise their constitutional right to strike.

Against this backdrop, this chapter continues to discuss this field of law that has
undergone dramatic changes over the last few years. Besides the limitations
imposed by means of the contents in a strike notice, this chapter explores other
limitations imposed on the right to strike as spelt out in the LRA. This is in
consequence of the increasing of the already existing limitations that form the
foundation upon which more complex limitations on the right to strike have been
constructed by our courts over the last few years. Indeed, the various limitations all
serve to promote the overt purpose of the Act in order to orderly collective
bargaining. In the end, the consequences of engaging in an unprotected strike as
well as protected strike are explained.

As pointed out earlier, the right to strike is entrenched and guaranteed to every
worker in terms of section 23 of the Constitution. However, like any other right in the
Bill of Rights, this right is not unlimited.104 Despite the fact that it is constitutionally

104 However, s 36 of the Constitution contains a limitation clause. It stipulates that “The rights in the
Bill of Rights may be limited only in terms of law of general application (the LRA is a good
example of law of general application) to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including -
a) the nature of the right;
b) the importance of the purpose of the limitation;
c) the nature and extent of the limitation;
d) the relation between the limitation and its purpose; and

33
protected, the right to strike must be exercised in accordance with the provisions of
the Act. Section 65 of the LRA imposes limitations to the right to strike. When read
together with section 23 of the Constitution, section 64 of the Act sets out the
procedures required to be followed in order to regard the strike as protected.
However, the court has found that in certain circumstances, even if the procedural
requirements set out in section 64 above have been complied with, a strike may still
be unprotected.105

3.2 LIMITATIONS OF RIGHT TO STRIKE IN TERMS OF THE LRA

Because the right to strike is so important, a limitation of some kind needs to be
justified and, to be justified it needs, among other things, to be limited. 106 The
provisions of section 65, perhaps unfortunately worded, impose limitations on the
right to strike in subsection 1, and then places further limitations in subsection 3. All
ought to have been combined into subsection 1. Be that as it may, the provision of
section 65 imposes an absolute prohibition on strikes based on six grounds. These
grounds, which will be discussed separately where:

 The person is bound by collective agreement that prohibits a strike in respect

of the issue in dispute.
 An agreement requires the issue in dispute to be subjected to compulsory
arbitration.
 The issue in dispute is one that a party has the right to refer to arbitration or to
the Labour Court in terms of the Act, for example dismissal for misconduct,
unfair discrimination and retrenchment.
 That person is engaged in an essential service, or a maintenance service.
 There is an arbitration award, a collective agreement that regulates the issue
in dispute, or any determination made by the Minister that regulates the issue
in dispute.

e) less restrictive means to achieve the purpose.

Moreover, except as provided in ss (1) or in any other provision of the Constitution, no law may
limit any right entrenched in the Bill of Rights.
105 See Bader National Union of Metal Workers of SA & Others v Bader Bop (Pty) Ltd & Another
(2003) 24 ILJ 305 (CC).
106 Brad How the law could better regulate the right to strike in South Africa Paper presented at the
27th Annual Labour Law Conference: The changing face of Labour Law (August 2014) 38.

34
 There is a determination made in terms of the Wage Act during the first year of
that determination which regulates the issue in dispute.

3.2.1 COLLECTIVE AGREEMENTS THAT PROHIBIT A STRIKE

Section 65(1)(a) of the Act prohibits a person bound by a collective agreement from
embarking upon a strike action if the collective agreement prohibits a strike. What
this essentially implies is that the employer and a registered trade union cannot
contract out of the right to strike by way of collective agreement. Basson107 reasons
that this prohibition prevents employees and employers from strikes and lock-outs
respectively, where the collective bargaining parties themselves have restricted the
right to strike or recourse to lock-out. Noteworthy is that the agreement prohibiting
the strike must be a collective agreement as defined in section 213 of the Act. 108 For
this reason therefore, only a trade union may waive employee’s right to strike. The
Act does not envisage an individual employee contracting out of his/her right to strike
simply because a single employee is considered too vulnerable to employer power to
allow them the “liberty” to contract away their rights, unlike when the union acts in the
employee’s stead. Similarly, such an act from the employee could in any event be
unenforceable as a breach of section 5(4) of the Act.109

Grogan opines that the scope of section 65(1)(a) of the Act depends typically on the
terms agreed upon.110 A further observation shows that collective agreements in
which employees abandon the right to strike in respect of all disputes are not
common since such a peace clause applies only in respect of a specific kind of
dispute. In Vista University v Botha and Others,111 for example, there was a

107 Basson et al Essential Labour Law 131.

108 In terms of s 213 of the Act, a collective agreement means a written agreement concerning
terms and conditions of employment or any other matter of mutual interest concluded by one or
more registered trade unions, on the one hand and, on the other hand-
(a) one or more employers;
(b) one or more registered employers' organisations; or
(c) one or more employers and one or more registered employers' organisations; “council”
includes a bargaining council and a statutory council.
109 This section stipulates that “A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits any provision of section
4, or this section, is invalid, unless the contractual provision is permitted by this Act.”
110 Grogan Collective Labour Law (2010) 176.
111 (1997) 18 ILJ 1040 (LC). Further, it was held in this case that employees who were members of
a trade union at the time it concluded a collective agreement with an employer, will be bound for

35
collective agreement concluded that no strike was to be allowed in cases of dispute
of rights as defined in the agreement itself. After interpreting the definition, the court
found that the issues in dispute fell within the terms of the peace clause and that the
strike was accordingly unlawful. By the same token, the court held in Cape Gate
(Pty) Ltd v NUMSA & Others112 that union parties to a council agreement that
required bargaining to be concluded at sectoral level could not strike over disputes
regarding the residue issues left for bargaining at plant level.

On the contrary, the Labour Court in Enforce Guarding (Pty) Ltd v National Security &
Unqualified Workers Union & others113 declined to accept that a collective agreement
governing shift arrangement precluded the union from calling a strike over overtime.
Also, the Labour Court has found in its subsequent decision that a written
undertaking by employees that they would abandon their demand that a supervisor
be disciplined constituted a collective agreement, and therefore they were precluded
from striking over that issue.114

3.2.2 AN AGREEMENT REQUIRES THE ISSUE IN DISPUTE TO BE SUBJECTED

TO COMPULSORY ARBITRATION
In terms of section 65(1)(b) of the Act, the right to strike will be precluded if the
parties to a dispute agree that a particular dispute that is likely to be the subject of a
strike, be resolved by way of arbitration.

Worth mentioning is that, unlike section 65(1)(a) above, the reference here is the
existence of a written “agreement” and not a collective agreement. Therefore an
agreement referred here could include both a collective agreement as well as
individual agreements between employers and employees, for instance employment
contracts or settlement agreements to settle a particular dispute by arbitration.115

the life of the agreement, even if they cease to be members of the union. Any strike prohibition
contained in such agreement will therefore continue to bind them.
112 (1997) 18 ILJ 1040 (LC).
113 (2001) 22 ILJ 2457 (LC).
114 NUMSA v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (2003) 24 ILJ
2171 (LC).
115 Grogan Collective Labour Law 178.

36
Grogan observes that the Act does not limit the issues that may be reserved for
arbitration in an agreement.116 For that reason, an employee may agree to refer both
rights and interests disputes to arbitration, and will be prohibited from striking in
respect of such disputes for the duration of the agreement. Arguably, whether this
provision is constitutional or unconstitutional remains contentious since enforcing
agreements where an individual employee contracts away his/her right to strike
constitutes an impediment and unreasonable limitation on the employee’s
constitutional right to strike.

3.2.3 THE ISSUE IN DISPUTE IS ONE THAT A PARTY HAS THE RIGHT TO
REFER TO ARBITRATION OR TO THE LABOUR COURT IN TERMS OF
THE ACT
This is arguably one of the most significant of the limitations on the right to strike.
With certain exceptions,117 section 65(1)(c) of the Act provides that a person may not
participate in a strike if the issue in dispute is one that the party has a right to refer to
arbitration or to the Labour Court in terms of the Act. In other words, where
employees have an existing right that they are able to enforce against the employer
through litigation, strike action is absolutely prohibited.118

A similar line of thought was articulated by the Constitutional Court in National Union
of Metalworkers of SA & Others v Bader Bop (Pty) Ltd & Another,119 where the
Constitutional Court stressed that section 65(1)(c) of the Act prohibits a strike where
a party has a right to refer the dispute to arbitration or the Labour Court.

116 Ibid.
117 S 65(2) (a) of the LRA creates an exception to this rule. It provides that: Despite section
65(1)(c), a person may take part in a strike or lock-out or in any conduct in contemplation or in
furtherance of a strike if the issue in dispute is about organisational rights dealt with in sections
12 to 15.
(b) If the registered trade union has given notice of the proposed strike in terms of section
64(1) in respect of an issue in dispute referred to in paragraph (a), it may not exercise the
right to refer the dispute to arbitration in terms of section 21 for a period of 12 months
from the date of the notice.
118 See TSI Holdings (Pty) Ltd & Others v National Union of Metalworkers of SA & others (2004) 25
ILJ 1080 (LC); although on Appeal in TSI Holdings (Pty) Ltd & Others v National Union of
Metalworkers of SA & others (2004) 27 ILJ 1483 (LAC) par 27, the LAC found that the strikers
had actually demanded that the supervisor be dismissed come what may. The LAC without
referring to Ceramics appears to have rejected the view expressed in that judgement that the
Labour Court should look beyond the actual demand to identify the true issue in dispute. Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union & others (2004) 25 ILJ 2135 (LAC);
National Union of Metalworkers of SA & others v Highveld Steel & Vanadium Corporation Ltd
(2002) 23 ILJ 895 (LAC).
119 (2003) 24 ILJ 305 (CC).

37
More importantly, Grogan correctly observes that in order to determine whether a
strike action is hit by the proscription, the court must first identify the issue in dispute
and the dispute-resolution provisions provided for in the Act.120 This has proved to
be a daunting task as found in Ceramic Industries Ltd t/a Betta Sanitaryware v
National Construction Building & Allied Workers Union (1),121 in which the union had
referred three disputes to the CCMA, one of which the Labour Court found was
arbitrable, the others not. Subsequently in Ceramic Industries Ltd t/a Betta Sanitary-
ware v National Construction Building & Allied Workers Union (2)122 the LAC had the
following to say:

“The Union’s initial complaint was the alleged harassment of the union official
and employees … [T]hat were a justiciable rights dispute with a specific remedy
to be pursued in the Labour Court. The union could not convert the nature of
that underlying dispute into a non-justiciable one simply by adding a demand for
a remedy falling outside those provided for by the Act. The tail cannot wag the
dog. If such an approach is allowed, an underlying rights dispute normally
justiciable or arbitrable in terms of the Act could be transformed into a strike-
able issue simply by adding a demand for a remedy not provided for in the Act.
That would be unacceptable. Even if the issue in dispute is not articulated as a
substantive complaint coupled with a specific demand, but rather in the form of
a complaint about the refusal of the specific demand itself, the position would
not change. The refusal of a demand, or the failure to remedy a grievance,
always needs to be examined in order to ascertain the real dispute underlying
the demand or remedy. The demand or remedy will always be sought to rectify
the real, underlying, dispute. It is the nature of that dispute that determines
whether a strike in relation to it is permissible or not.”

Another formulation was developed in Fidelity Guard Holding (Pty) Ltd v PTWU,123
where the LAC held that the fundamental enquiry was to establish what the demand,
the grievance or the dispute is that forms the subject matter of the strike. The court
achieved this by looking at the following factors:

 Prior negotiations between the parties.

 The correspondence between the parties immediately prior to the referral to
the CCMA.
 The correspondence between the parties and the CCMA after conciliation, and
120 Grogan Collective Labour Law 178.
121 (1997) 18 ILJ 671 (LC) 23.
122 (1997) 18 ILJ 671 (LAC) 14.
123 [1997] 9 BLLR 1125 (LAC) 32.

38
 The advisory award made in this case by the CCMA.

Contrary to the LAC’s judgment in Fidelity Guard Holding above, the LAC’s in Adams
& Others v Coin Security Group (Pty) Ltd124 found that the approach adopted in
Fidelity Guard Holding on the issue was inconsistent. The court stressed that it is the
court's duty to ascertain the true or real issue in dispute.125

In practice the Act bars employees from striking in disputes concerning the following
matters:

 Freedom of associations rights contained in section 9.

 Organisational rights save for matters falling within section 12 to 15.
 The interpretation or application of a collective agreement in section 24.
 An agency-shop and closed-shop agreement in section 24(6) and (7)
respectively.
 Admission of parties to council or expulsion from the bargaining councils in
terms of section 56.
 Picketing in terms of section 69.
 Disputes concerning matters reserved for joint decision-making under section
86.
 Dismissal disputes with the exclusion of certain retrenchments.
 Alleged unfair dismissals and unfair labour practices in terms of section 191.

124 (1999) 20 ILJ 1192 (LAC) 16.

125 See also Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building & Allied
Workers Union & others (2) (1997) 18 ILJ 671 (LAC); Fidelity Guards Holdings (Pty) Ltd v
Professional Transport Workers Union & others (1) (1998) 19 ILJ 260 (LAC). In conducting that
enquiry a court looks at the substance of the dispute and not at the form in which it is presented
(Fidelity at 269G-H; Ceramic at 678C). The characterization of a dispute by a party is not
necessarily conclusive (Ceramic at 677H-I; 678A-C). In the Court’s view, there was no
difference in the approach of these decisions. In each case the court was concerned to
establish the substance of the dispute. The importance of doing this lies in s 65 of the Act which
provides that no person may take part in a strike if “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 …”. The phrase ‘issue
in dispute’ is, in relation to a strike, defined as 'the demand, the grievance, or dispute that forms
the subject matter of the strike”.

39
It has been observed that all disputes not covered within the ambit of the above
provisions are regarded as “matters of mutual interest” and accordingly, neither the
Labour Court nor the arbitrator may determine the merits of such matters.126

3.2.4 THE PERSON IS ENGAGED IN AN ESSENTIAL SERVICE, OR A

MAINTENANCE SERVICE
Section 65(1)(c) of the Act provides that, where the employer is engaged in either an
essential service127 or a maintenance service,128 strike is prohibited. However, the
employer must first be declared an essential service or a maintenance service by the
Essential Service Committee (ESC) in terms of sections 70 to 73 of the Act. In terms
of section 72 of the Act, the ESC may approve and ratify a collective agreement that
provides for the maintenance services in a service designated as an essential
service. The effect of such agreement is that only workers who are in the designated
minimum service may strike, the rest must refer the matter to a compulsory
arbitration. According to Grogan, the reason for these prohibitions is to limit strike
action where the effect of such action would be to endanger life, health or safety of
the public or create major social dislocation.129

In SA Police Services v Police & Prisons Civil Rights Union,130 the question was
whether the prohibition on strikes in essential services applies to all employees in the
services concerned or only to those who performed work directly linked to the
provisions of the essential service. The Labour Court held that only members of the
South African Police Service (SAPS) employed under the South African Police
Service Act (SAPSA)131 were engaged in essential services under the LRA.

126 Grogan Collective Labour Law 178.

127 In terms of s 231 of the Act, an "essential service" (more narrowly defined as compared to the
previous Act (1956 Act) means
“(a) a service the interruption of which endangers the life, personal safety or health of the
whole or any part of the population;
(b) the Parliamentary service;
(c) the South African Police Services.”
128 S 75(1) of the Act provides that a service is a maintenance service if the interruption of that
service has the effect of material physical destruction to any working area, plant or machinery.
129 Grogan Collective Labour Law 190. See also Basson et al Essential Labour Law 314 and Du
Plessis & Fouche A Practical Guide to Labour Law (2007) 357.
130 (2007) 28 ILJ 2611 (LC).
131 Act 68 of 1995.

40
The decision of the Labour Court was subsequently appealed to LAC. In SA Police
Services v Police & Prisons Civil Rights Union,132 the LAC confirmed the decision of
the Labour Court that only members and deemed members of the SAPS employed
under the SAPSA and engaged in police duties were actually prohibited from striking
by the provisions of section 65 read with section 71(10) of the Act. Accordingly, the
personnel employed by the SAPS in terms of the Public Service Act (PSA),133
including prison officers, are not prohibited from striking.

The SAPS appealed against the decision of the LAC to the Constitutional Court. In
SA Police Services v Police & Prisons Civil Rights Union and Another134 the
Constitutional Court had to consider the proper interpretation and meaning of
“essential service” as defined in section 213, read with sections 65(1)(d)(i) and
71(10) of the Act, in the context of the right to strike provided for in section 23(2)(c) of
the Constitution.

The Constitutional Court held that a restrictive interpretation of essential service

should, if possible, be adopted so as to avoid impermissibly limiting the right to strike.
The court remarked that defining “essential service” too broadly would impermissibly
limit the right to strike.135

After considering the meaning of “essential services”, the Constitutional Court

concluded that persons who were engaged in essential service, and prohibited from
striking in terms of section 65(1)(d)(i) of the Act, are members of the SAPS, and this
included the “personnel employed” in the SAPS and designated as members in terms
of section 29 of the SAPSA.136 The Constitutional Court re-affirmed that the LAC
could not be faulted in holding that not all SAPS employees were engaged in an
essential service, and confirmed the judgment of the LAC.

132 (2010) ILJ 2844 (LAC) .

133 Proclamation 103 of 1994.
134 (2011) 32 ILJ 1603 (CC).
135 Par 31.
136 Par 30.

41
3.2.5 AN ARBITRATION AWARD OR A COLLECTIVE AGREEMENT
REGULATES THE ISSUE IN DISPUTE OR ANY DETERMINATION MADE
BY THE MINISTER THAT REGULATES THE ISSUE IN DISPUTE
In terms of section 65(3)(a)(i) of the Act, employees may not strike if the issue in
dispute that may form the subject of a strike is regulated by a collective agreement.
The reasons for this limitation are two-fold. In the first place the dispute has been
resolved and the award given is final and binding. The second reason is to uphold
the sanctity of the collective agreement since parties should remain bound by the
terms of the settlement.137 Consequently, the court has noted that parties should not
be entitled to have two bites at the cherry, in other words, if the result of the
arbitration is not of their liking, they ought not to seek to obtain a more favourable
result through strike.138

3.2.6 ANY DETERMINATION MADE IN TERMS OF THE WAGE ACT AND THAT
REGULATES THE ISSUE IN DISPUTE, DURING THE FIRST YEAR OF
THAT DETERMINATION
Section 65(3)(b) states that, where the Minister has made a determination in terms of
the Wage Act,139 that regulates the issue in dispute, employees may not take part in
in a strike during the first 12 months of the existence of this determination. Section
8(1)(a) to (c) of the Wage Act regulates only the minimum rates of remuneration and
hence opens to the parties the right to strike over improved wages in the ordinary
bargaining. Worth mentioning is that, after the LRA came into operation, the Wage
Act was repealed by the Basic Conditions of Employment Act (BCEA), and therefore
Basson points out correctly that section 65(3)(b) of the Act will have to be
reconsidered.140

137 See Samancor Ltd v National Union of Metalworkers of SA & Others (2002) 21 ILJ 2305 (LC);
SA Motor Industry Employers Association & Another v National Union of Metalworkers of SA &
Others (1997) 18 ILJ 1301 (LAC).
138 See Chemical Workers Industrial Union v Bevaloid (Pty) Ltd (1988) 9 ILJ 447 (W); Afrox Ltd v
SA Chemical Workers & others (1) (1997) 18 ILJ 399 (LC) 406; Grogan (2007) Workplace Law
392. See also Basson et al Essential Labour Law 314 and Du Plessis & Fouche A Practical
Guide to Labour Law (2007) 318.
139 Act 5 of 1957.
140 Basson et al Essential Labour Law 317. According to Basson the BCEA provides for a system
of sectorial determination regulating basic conditions of employment made by the Minister on
the advice of the Employment Conditions Commission which are equivalent to wage
determinations made in terms of the Wage Act.

42
Despite the limitations in section 65, the proposed amendments to section 65 of the
Act seek to broaden the restrictions on employees and trade unions taking strike
action. Worth noting is that the LRA Amendment Bill, section 65(1)(c), now provides
that no person may participate in a strike if that party has a right to refer the dispute
to arbitration or to the Labour Court in terms of the Act or any other employment law.
Any other employment law would include, for instance, the Employment Equity Act141
which will deal with unfair discrimination disputes. The proposed amendments to the
LRA suggests that this extension strives to eliminate the anomalous distinction
between disputes that can be adjudicated under the Act in respect of which strike is
currently restricted, and those under other employment laws in respect of which there
is no equivalent restriction. This further proposed limitation should be revisited since
it broadens the scope and limits unnecessarily the employees’ constitutional right to
strike.

3.3 THE LEGAL CONSEQUENCES OF PROTECTED STRIKE IN TERMS OF

THE ACT
Section 67 of the Act provides for the extent of a protected strike. This entails that
employees may not be dismissed for striking if they comply with the requirements
discussed above.142

3.3.1 IMMUNITY FROM CIVIL LIABILITY AND BREACH OF CONTRACT

Section 67(2) of the Act provides an indemnity against civil liability and breach of
contract to employees who engage in a protected strike or any conduct in
contemplation or participation in a protected strike.143 In spite of this protection,
section 67(3) of the Act indicates that an employer, subject to two limitations,144 is not
obliged to remunerate an employee for services that the employee does not render
during protected strike and may employ replacement labour. Grogan opines that, if a

141 Act 55 of 1998.

142 See the discussion in Fidelity Guards Holdings (Pty) Ltd v PTWU & Others [1997] 9 BLLR 1125
(LAC) 1132 and in Afrox Ltd v SA Chemical Workers Union & Others (2) (1997) 18 ILJ 406 (LC)
410D-E.
143 SA Chemical Workers Union & Others v Afrox Ltd (1999) 20 ILJ 1718 (LAC).
144 S 67(3)(a) “if the employee's remuneration includes payment in kind in respect of
accommodation, the provision of food and other basic amenities of life, the employer, at the
request of the employee, must not discontinue payment in kind during the strike or lock-out; and
(b) after the end of the strike or lock-out, the employer may recover the monetary value of the
payment in kind made at the request of the employee during the strike or lock-out from the
employee by way of civil proceedings instituted in the Labour Court”.

43
party commits an act that is a criminal offence, for instance assault, intimidation,
malicious damage to property and the like, this protection will be forfeited and the
party committing the criminal act will be liable for damages.145

3.3.2 PROTECTION AGAINST DISMISSAL

Probably one of the most meaningful protections afforded to the employees
participating in a protected strike is found in section 67(4) of the Act. In fact, this
section prohibits an employer from dismissing an employee for participating in a
protected strike or for any conduct in contemplation or in furtherance of a protected
strike.146 The courts have held that a dismissal for any of these reasons is
automatically unfair in terms of section 187(1)(a) of the Act, and an award of
reinstatement and up to 24 months’ salary in compensation may be ordered.147

However, the protections afforded in sections 67(4) and 187(1)(a) of the Act are not
absolute. This is because section 67(4) limits the rights of strikers not to be
dismissed by holding that, despite sections 67(4) and 187(1)(a), an employer may
fairly dismiss an employee in accordance with the provisions of Chapter VIII for a

145 Grogan (2007) Workplace Law 396. See also Mondi Ltd (Mondi Kraft Division) v Chemical
Energy Paper Printing Wood & Allied Workers Union & Others (2005) 26 ILJ 1458 (LC);
Stuttafords Department Stores Ltd v SA Clothing & Textiles Workers Union (2002) 22 ILJ 414
(LAC) and Lomati Mill Barbaton v Paper Printing Wood & Allied Workers Union (1997) 18 ILJ
178 (LC).
146 For the rationale for protecting strikers against dismissal, see Black Allied Workers Union &
Others v Prestige Hotels CC t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC) 972.
147 See Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & Others v and also SA Transport
& Allied Workers Union v Platinum Miles Investments (Pty) Ltd t/a Transition Transport (2008)
29 ILJ 1742 (LC).

44
reason related to the employee's conduct during the strike,148 or for a reason based
on the employer's operational requirements.149

3.4 THE LEGAL CONSEQUENCES OF UNPROTECTED STRIKE IN TERMS OF

THE ACT
Employees’ failure to comply with the required procedure and limitations will render
the strike unprotected. Accordingly, the employer will have remedies in terms of the
Act. The Act provides the employers with the remedies of interdict, compensation for
loss, and dismissal in instances where employees participate in unprotected strikes.

Usually, in practice most strike cases that go to the Labour Courts commence with
the employer applying for an interdict contending that the strike is unprotected in one
way or another. However, in exceptional instances the trade union approaches the
court first. For example, in the Public Service Association decision discussed earlier,
it was the trade union that approached the Labour Court requesting protection after
the employer had issued an ultimatum and threatened to dismiss the striking
workers.

Where a strike does not comply with the provisions of the Act relating to strike, it will
be unprotected and the following legal consequences will apply:

148 See Chemical Energy Paper Printing Wood & Allied Workers Union & others v Metrofile (Pty)
Ltd (2004) 25 ILJ 231 (LAC) 53; Picardi Hotels Ltd v Food & General Workers Union & others
(1999) 20 ILJ 1915 (LC) 25; CEPPWAWU & Others /Tugela Mill (a division of SAPPI Kraft (Pty)
Ltd (2002) 12 BALR 1249 (CCMA); Doorwise SA CC V PPWAWU & others [1997] 6 BLLR 748
(LC); Morkels Stores (Pty) Ltd v Woolfrey NO & another [1999] 6 BLLR 572 (LC) 6; Adams &
others v Coin Security Group (Pty) Ltd (1999) 20 ILJ 1192 89-90; Mabinana & others v Baldwins
Steel [1999] 5 BLLR 453 (LAC); NSCAWU & others v Coin Security Group t/a Coin Security
(1997) 15 ILJ 1257 (A); NUMSA v G Vincent Metal sections (Pty) Ltd [1995] 8 BLLR 85 (IC);
Chauke & others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC); Food
and Allied Workers Union & others v Amalgamated Beverage Industries Ltd (1992) 13 ILJ 1552
(LC); SACTWU & others v Novel Spinners (Pty) Ltd [1999] 11 BLLR 1157 (LC); National Union
of Metalworkers of SA & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ 1984 (LC); SACWU v
Afro Ltd (1998) 19 ILJ 62 (LC) and SACCAWU obo Machipa/ Dennis Pizza (2002) 12 BALR
1356 (CCMA).
149 National Union of Mineworkers v Black Mountain Mineral Development Co (Pty) Ltd (1994) 15
ILJ 1005 (LAC); Black Allied Workers Union & Others v Prestige Hotels CC t/a Blue Waters
Hotel (1993) 14 ILJ 963 (LAC) 972F; Cobra Watertech v National Union of Metalworkers SA
(1995) 16 ILJ 607 (LAC) 616A; General Food Idustries Ltd v Food & Allied Workers Union
(2004) 25 ILJ 1260 (LAC); SA Chemicals Workers Union & other v Afrof Ltd (1999) 20 ILJ 1718
(LAC); National Union of Metalworkers of SA & others v Dorbyl & another (2007) 28 ILJ 1585
(LAC); BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers Union (2001) 22 ILJ 2264
(LAC) 19; SA Clothing & Textile Workers Union v Discreto (1998) 19 ILJ 1451 (LAC) 8 and
Northern Cape Allied Workers Union obo Sethlogo & others v CCMA & others (2009) 30 ILJ
1299 (LC).

45
3.4.1 INTERDICT
Under the 1956 Act, the Industrial Court was empowered to grant interdicts with
respect to unlawful industrial action.150 Strike that did not comply with the
requirements of the 1956 Act regulating strikes was deemed illegal and carried
criminal consequences. Now section 68(1) the Act gives the Labour Court exclusive
jurisdiction to grant an interdict restraining any person from participating in a strike or
any conduct in contemplation or in furtherance of a strike if the strike does not
comply with the provisions of the Act. Failure to comply with such an interdict or
order is a factor which the Labour Court may take into account in ordering just and
equitable compensation.

The Labour Court may not grant or restraining order unless 48 hours’ notice has
been granted to the respondent. A shorter notice period may be permitted if a party
shows a good cause and if a union has been given a written notice of the application
and has been allowed a reasonable opportunity to be heard. 151 In New Tyre
Manufacturers Employers Association v National Union of Metalworkers of SA 152 and
Automobile Manufacturers Employers Association v NUMSA,153 the Labour Court
held that good cause will have to be established on grounds equivalent to those in
urgent applications.154 Grogan observes that if it is established that the employer has
made insufficient attempts to serve the notice of the application to each strikers, the
court will not grant an interdict.155

150 S 17(11)(b) of Act 28 of 1956.

151 S 68(2)(a) to (c) of the Act. See also Grogan Workplace Law (2007) 404.
152 (1999) 20 ILJ 189 (LC).
153 [1998] 11 BLLR (LC).
154 These grounds include; the establishment of a prima facie right to the relief sought; a well-
grounded appreciation of irreparable harm to the applicant if the relief sought is not granted; and
finally is that the applicant has no other satisfactory remedy.
155 Grogan Workplace Law 404. See also Makhado Municipality v SA Municipal Workers Union &
others (2006) 27 ILJ 1175 (LC); Woolworth (Pty) Ltd v SA Commercial Catering & Allied
Workers Union (2006) 27 ILJ 1234 (LC) and Security Services Employer Organisation & others
v SA Transport Workers Union & others (2006) 27 ILJ 1217 (LC).

46
3.4.2 COMPENSATION
In addition to granting of an interdict, section 68(1)(b) of the Act, grants the Labour
Court the jurisdiction to order the payment of just and equitable compensation for any
loss attributable to an unprotected strike.

In deciding whether the order of the payment of compensation is just and equitable
the Labour Court must have regard to section 68(1)(b)(i) of the Act. These are:

 whether attempts were made to comply with Chapter IV of the Act and the
extent of those attempts;
 whether the strike was premeditated;
 whether the strike was in response to an unjustified conduct by the other party
to the dispute;
 the duration of the strike;
 the financial position of the employer, trade union, or employees.

In practice, employers have not resorted to section 68(1) as often as might have
been expected. Nevertheless, the first case calling for the application of section
68(1) came about in Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union.156
In this case, the employee had initially applied for compensation in the amount just
more than R15 million, emanating from a loss of production and profits following a
series of unprotected strikes, but subsequently limited its claim to R100 000.
Although noting that the financial position of the union was weak, the court ordered it
to pay the full amount claimed. The court mentioned that the amount of R100 000 fell
well within the upper limit of what it would consider fair, and ordered the R100 000 be
paid in monthly instalments of R5 000.

3.4.3 THE DISMISSAL OF STRIKERS

Participation in an unprotected strike may in terms of section 68(5) of the Act
constitute a fair reason for dismissal. In deciding whether a dismissal was fair the

156 (2001) 22 ILJ 2035 (LC). See also Algoa Bus Company v SATAWU & others [2010] 2 BLLR 149
(LC); Mangaung Local Municipality v SA Municipal Workers Union (2003) 24 ILJ 405 (LC);
Country Fair Foods (Pty) Ltd v FAWU & others (2001) 22 ILJ 1103 (LAC) and Columbus Joint
Venture t/a Columbus Stainless Steel v NUMSA (1998) 19 ILJ 279 (LC).

47
provisions of the Code of Good Practice dealing with dismissals, as contained in
schedule 8 of the Act, must be taken into account. Item 6 of the Code of Good
Practice states clearly that participation in an unprotected strike constitutes
misconduct. However, the Code also states that as in the case with any other act of
misconduct participation in an unprotected strike does not necessarily justify
dismissal. For a dismissal to be fair, such dismissal must be substantively and
procedurally fair.

 Substantive fairness
It does not follow as a matter of course that the dismissal of strikers who participated
in an unprotected strike is fair. The substantive fairness of such a dismissal depends
on all the circumstances surrounding the strike. Item 6 of the Code of Good Practice
requires that the substantive fairness of the dismissal of strikers who participated in
an unprotected strike must be evaluated in the light of the facts of the case. Item 6 of
the Code as well as court decisions157 requires that the following factors must be
taken into account:

 The seriousness of the failure to comply with the provisions of the Act
pertaining to protected strike.

 The attempts made by the employees to comply with the Act. For instance a
genuine attempt to issue a 48 hours’ strike notice, but a defective formulation
of the notice makes it impossible for the employer to know when the strike will
commence.158

 Whether or not the strike was in response to unjustified conduct on the part of
the employer. For instance, in National Union of Metalworkers of SA & Others
v Pro Roof Cape (Pty) Ltd,159 the Labour Court noted that the employer’s

157 See Liberty Box & Bag Manufacturing Co (Pty) Ltd v Paper Wood & Allied Workers Union
(1990) 11 ILJ 427 (ARB); Doornfontein Gold Mining Co Ltd v National Union of Mineworkers of
SA & others (1994) 15 ILJ 527 (LAC); Henred Fruehauf Trailers (Pty) Ltd v National Union of
Mineworkers of SA & others (1992) 13 ILJ 593 (LAC) and Performing Arts Council v Paper
Wood & Allied Workers Union (1992) 13 ILJ 1439 (LAC).
158 Adams & others v Coin Security Group (Pty) Ltd (2000) 21 ILJ 924 (LAC).
159 (2005) 26 ILJ 1705 (LC).

48
 provocative conduct by, amongst other things, not paying a bonus due to the
employees, meant that the dismissal was unfair.

Besides the above requirements, the courts have held that, where the employees
during the course of the strike engage in unacceptable conduct and as a result the
employer suffers harm, they may be dismissed fairly.160

 Procedural fairness
The dismissal of strikers who have embarked on an unprotected strike will also have
to be procedurally fair. Investigation should take place as soon as possible.
Procedural fairness rests on the following pillars:
.
 This does not need to be a formal investigation or a formal disciplinary hearing
or enquiry. However, in Avril Elizabeth Home for the Mentally Handicapped v
CCMA161 the Labour Court noted that the code specifically states that the
investigation preceding a dismissal “need not be a formal inquiry”. The Code
requires no more than that before dismissing an employee, the employer
should conduct an investigation, give the employee or his/her representative
an opportunity to respond to the allegation after a reasonable period, take a
decision and give the employee notice of that decision. This approach
represents a significant change from what may be termed the “criminal-justice”
model developed by the erstwhile Industrial Court under the 1956 Act.

 The employer should then notify the employee of the allegations, using a form
and language that the employee can reasonably understand. This notice
should set out the charges and the employee's rights during the hearing.

 The charges should be detailed enough for the employee to determine the
charge and to be able to defend himself/herself against it.

160 National Union of Furniture & Allied Workers of SA v New Era Products (Pty) Ltd (1999) 20 ILJ
869 (LC); National Union of Metalworkers of SA & others v Pro Roof Cape (Pty) Ltd (2005) 26
ILJ 1705 (LC) and National Union of Metalworkers of SA & others v Atlantis Forge (Pty) Ltd
(2005) 26 ILJ 1984 (LC).
161 [2006] 9 BLLR 833 (LC).

49
 The employee is entitled to a reasonable time (at least 2 clear working days)
to prepare his defence; and the employee is entitled to the assistance of a
trade-union representative or a fellow employee.

 The employee is entitled to be present during a hearing and to present his

defence by cross-questioning the employer's witnesses, presenting his own
evidence and by stating his own defence. This constitutes the core rights of
an employee when suspected of misconduct (audi alterem partem).

 If the employee is found guilty, the employee has the right to present
mitigating circumstances before a sanction is given.

 After the enquiry, the employer should communicate the decision taken to the
employee and preferably furnish the employee with written notification of that
decision.

If the employee is dismissed, the employee should be given the reason for dismissal
and reminded of any rights to refer the matter to a council with jurisdiction or to the
Commission or to any dispute-resolution procedures established in terms of a
collective agreement.

3.5 CONCLUSION
As noted above, the legal mechanism aimed at further limiting the scope of the right
to strike has recently become a highly contested issue, particularly among trade
unions.

As the law currently stands, section 65(1)(c) of the Act holds that no person may take
part in a strike if the issue in dispute is one that a party may refer to arbitration or to
the Labour Court in terms of the Act. This has become a well-established and
accepted limitation in our labour law for years.

Now the proposed amendment to section 65(1)(c) of the Act seeks to further limit the
right to strike by excluding this right in circumstances where the issue in dispute is

50
one that could be referred to arbitration or to the Labour Court in terms of the Act, or
in terms of any other employment law.

Although this amendment is to be appreciated for its aim, which is to try and address
the increasing levels of unprotected strikes, this extension to further limit the scope of
the right to strike creates an unnecessary hurdle to employees wishing to exercise
their constitutional right to strike. Therefore this amendment should be revisited for
the simple reason that the right to resort to strike action is a pivotal tool for trade
unions to balance the relationship between management and the workforce.

The consequences of protected and unprotected strike were also elaborated in this
chapter.

On the one hand, it was found that, although the right to strike is recognised under
the laws of South Africa, section 68 of the Act explicitly provides for the
consequences of a strike action embarked upon against the spirit and purport of the
law and particularly the Act and the Constitution. In other words, the law provides the
employers with the remedies of interdict, compensation for loss and dismissal (only if
it is procedurally and substantively fair) against an unprotected strike. On the other
hand, it was established that the consequences of a protected strike are well
articulated in section 67 of the Act, and include immunity from civil liability and breach
of contract as well as protection against dismissal.

51
 CHAPTER 4
FURTHER LIMITATION ON THE EMPLOYEES’ RIGHT TO STRIKE v
COLLECTIVE BARGAINING FOR THE PURPOSES OF REACHING A
COLLECTIVE AGREEMENT: STRIKING A BALANCE IN SOUTH
AFRICA

4.1 INTRODUCTION
Thus far we have been concerned with the various limitations imposed on the
employees’ constitutional right to strike. In this chapter we turn to an area in our law
which is no less important in practice. More importantly, the chapter attempts to
establish whether the further limitations proposed in the amendments to the LRA on
the employees’ right to strike are indeed necessary as compared to rather engaging
in a meaningful collective bargaining with the objective of reaching and concluding a
collective agreement.

The statutory mechanisms for institutionalization of conflict through the medium of

collective bargaining made its appearance in South African Labour Law in the early
1920s.162 Despite the provision of a legislative framework for collective bargaining,
there was still an underlying philosophy of voluntarism underpinning the legislation.163
The voluntarism took the form of the employer and employee parties being able to
freely regulate their relationship. The role of the State was to encourage collective
bargaining by providing the framework for it. In 1979 the Wiehahn Commission
Report stated that the role of the State was limited to setting the broad framework
within which the employer and employee should have the maximum degree of
freedom to regulate their various relationships.164

In the last few months, South Africa has experienced a most escalating wave of
strikes in history. As a result, South Africa has been dubbed “the protest capital of

162 Industrial Conciliation Act of 1924.

163 Davis Voluntarism and South African Labour Law (1990) 45 50.
164 Wiehahn Commission Report Part V par 4.11.5.

52
the world”.165 Arguably, no day goes by in South Africa without strikes or employees
from different sectors threatening to go on strike. If left unattended, this wave of
development will soon have dire consequences for South Africa, a country that is
already experiencing a fragile economy. South Africa’s desire to encourage foreign
investments will be seriously endangered since no serious foreign investor will be
willing to invest in a country constantly faced with vicious strikes indicating a nose-
diving economy.166 A good example is the five-month long platinum strike that
almost pushed the economy to the brink of recession in the first half of this year.167

Strikes may be detrimental for a number of reasons. In their very nature they are
calculated to harm not only the employer but also the employer’s customers and
suppliers and even non-striking employees.168 Strike action has also been viewed as
unjust since it causes inconvenience and perhaps hardship to the general public, and
under some circumstances may be injurious to the entire economy. Strikes often
inflict serious economic loss, not only upon the employer and the individual
employees engaged in the activity, but it also stirs up hate and disrupts the solidarity
of the community at large.169 The right to strike is, nevertheless, an indispensable
element of the right to bargain collectively. It represents the power which, even if not
used, constitutes the foundation of the union's bargaining position.170 Any undue
limitation of the right involves the danger of weakening the very basis of collective
bargaining. It is for these reasons that perhaps collective bargaining needs to

165 Rodrigues “‘Black Boers’ and other revolutionary songs” 5 April 2010.
[Link] (Accessed
2014-03-12).
166 [Link] see also
[Link]
violence-2014-06-11.
167 Stephen Grootes “End of South Africa's platinum mine strike signals end of ANC domination” 25
June 2014 [Link]
anc. (Accessed 2014-03-12). See also Solomons, I. (2014). Platinum strike consequences
starting to take shape. Available at: [Link]
consequences-starting-to-take-shape-2014-08-22 [accessed on 21 October 2014].
168 Grogan Collective Labour Law (2010) 142.
169 Hobson “The Conditions of Industrial Peace” cited in Cockar, “The Industrial Court and Labour
Relations in Kenya” 1996 2 East African Law Journal 257 258.
170 “…the threat to strike, and the strike itself, are the prods which stimulate management and
unions to find a peaceful solution to the problems of employment. Indeed, the strike is an
integral part of the collective bargaining process. Without it, collective bargaining cannot
function effectively as the vehicle of joint determination of the issues of the employment
relationship." Witney Government and Collective Bargaining (1951) 3.

53
develop effective strike avoidance strategies in order to encourage industrial peace in
labour relations.

4.2 THE NATURE OF COLLECTIVE BARGAINING AND THE RIGHT TO

STRIKE
At the heart of any industrial-relations system, lies the concept of collective
bargaining. As legal scholar, Tucker, has noted that this notion has a very long
history, which he traces back as far as 1921, being popularised in the 1940s.171

For employers, the motivation behind collective bargaining is to maintain industrial

peace and for employees, it is a motivational force to sustain “certain standards of
distribution of work, of rewards and of stability of employment”.172 Interesting to note
is that “It is one of the ironies of collective bargaining that its very object, industrial
peace, should depend on the threat of conflict.”

In South Africa collective bargaining has particular importance with its legacy, deeply
ingrained in the South African history. The current legislative framework allows for a
voluntary system of collective bargaining backed by the freedom of parties to resort
to coercive power. It is the mechanism through which regulated flexibility is
achieved. In other words, the ability of collective bargaining to set wages and
conditions that balance employees’ needs with those of employers is essential for
development of a new labour-relations structure to balance the imperatives of equity
and economic development.

Collective bargaining is a “process by which employers and organised groups of

employees seek to reconcile their conflicting interests and goals through mutual
understanding”.173 Its main objective is to reach a mutually acceptable agreement
through compromises or negotiations made by both parties on matters of joint

171 Tucker, “Can Worker Voice Strike Back?” in Bogg and Novitz Voices at Work: Continuity and
Change in the Common Law World (Oxford, OUP, 2014, forthcoming) 6.
172 Davies & Freedland in Kahn-Freund’s Labour and the Law’ (1983) 69.
173 Grogan Collective Labour Law 86. The author also states that “the central objective of all
modern industrial relations legislation is to promote collective bargaining as a means of
regulating relations between employers and employees and for resolving disputes between
them”.

54
interest.174 Du Toit observes that the LRA attempts to advance collective bargaining
as a means of securing labour peace, social justice, economic development and
employee equality. He also notes that collective bargaining is not only concerned
with securing an agreement over wages or conditions, it maintains labour peace,
promotes equality and plays a social and economic role.175 For that reason, if the
legislative framework is to provide a sustainable and lasting foundation for
encouraging mutually beneficial relations, it must strike a fair balance between
employees’ and employers’ interests and also encourage more voluntary collective
bargaining. Unnecessary lobbying of the legislative framework which allows the
power balance to tip heavily towards either employers or employees may hinder the
fundamental compromises and self-determination which are the essential
foundations of effective bargaining but will also undermine the development of
mature, cooperative relationships.

The nature and extent of the right to engage in collective bargaining were extensively
dealt with in the popular cases of South African National Defence Union v Minister of
Defence,176 SANDU v Minister of Defence177 and Minister of Defence v SANDU.178 It
is not the intention of this study to discuss these cases in detail. Nevertheless, it is
worth mentioning that the most common core issue in all the cases was whether the
South African National Defence Force179 had a justifiable duty to engage in collective
bargaining with the South African National Defence Union,180 a union set up by and
comprising members of the defence force, which allowed them to function as a union
by the decision of the Constitutional Court.

174 Bendix The Basics of Labour Relations (2000) 138. See also Kahn-Freund Labour and the Law
(1977) 5 who similarly explains the purpose of collective bargaining as follows; “[B]y bargaining
collectively with organised labour, management seeks to give effect to its legitimate
expectations that the planning of production, distribution … should not be frustrated through
interruptions of work. By bargaining collectively with management, organised labour seeks to
give effect to its legitimate expectations that wages and other conditions of work should be such
as to guarantee a stable and adequate form of existence and as to be compatible with the
physical integrity and moral dignity of the individual, and also that jobs should be reasonably
secure.”
175 Du Toit Labour Relations Law A Comprehensive Guide (2000) 123.
176 (2003) 3 SA 239 (T). Hereinafter referred to as SANDU 1.
177 (2004) 4 SA 10 (T) Hereinafter referred to as SANDU 2.
178 (2007) 1 SA 422 (SCA) Hereinafter referred to as SANDU 3.
179 Hereinafter referred to as SANDF.
180 Hereinafter referred to as SANDU.

55
The Constitutional Court held that the constitutional right of workers to engage in
collective bargaining imposes a correlative obligation on employers to bargain with
unions which have the right to bargain. In this case, the court held that soldiers could
be classified as similar to employees and therefore “workers” for the purposes of
section 23 of the Constitution. The provision of the Defence Act and its regulations
that prohibited soldiers from belonging to trade unions were held to be
unconstitutional and were therefore declared invalid. After some acrimony, an order
was requested compelling the SANDF to bargain with the union. The application was
dismissed. The court held that, although section 23(5) of the Constitution grants
trade unions the right to engage in collective bargaining or the freedom to bargain
collectively, it does not impose an obligation to bargain on the other side.

In another Constitutional court judgment, In re Certification of the Constitution of

South Africa181 the court found that:

“Collective bargaining is based on the recognition of the fact that employers

enjoy greater social and economic power than individual workers. Workers
therefore need to act in concert to provide them collectively with sufficient power
to bargaining effectively with employers. Workers exercise collective power
primarily through the mechanism of strike action.”

In other foreign jurisdictions, for instance the UK, in 1942, the House of Lords in
Crofter Hand Woven Harris Tweed v Veitchheld182 held that the “right of employees
to strike is an essential element in the principle of collective bargaining”. In Canada,
the Supreme Court has held in Health Services and Support-Facilities Subsector
Bargaining Association v British Columbia that:

“… to take away an employee’s ability to strike so seriously detracts from the

benefits of the right to organize and bargain collectively as to make those rights
virtually meaningless.”183

4.3 COLLECTIVE BARGAINING UNDER THE ILO

The primary goal of the ILO under its Constitution is “social justice”, which is to take
precedence over other economic goals.184 It is imperative to point out that the ILO

181 (1996) 4 SA 744 par 66.

182 [1942] AC 43 Lord Wright p 463.
183 [2007] 2 SCR 391.

56
Constitution that provides for social justice involves the improvement of conditions of
work and the ability of workers to participate in making the decisions which affect
their working lives, either by means of collective bargaining or tripartite (Government,
employer and worker representatives) consultation.

It must be emphasised that the ILO describes collective bargaining as a process in

which workers and employers make claims upon each other and resolve them
through a process of negotiations leading to collective agreements that are mutually
beneficial. In fact, under most of the international legislative framework, it is
regarded as a labour right. For example employees, joining together, allow them to
have a more balanced relationship with their employer. It also provides a mechanism
for negotiating a fair share of the results of their work, with due respect for the
financial position of the enterprise or public service in which they are employed. In
the process, different interests are reconciled. For employers, free association
enables firms to ensure that competition is constructive, fair and based on a
collaborative effort to raise productivity and conditions of work.185

The ILO is viewed as the pre-eminent authority or bench mark on international labour
standards. This organisation considers the right to collective bargaining as one of
the core rights that is essential to the ILO’s mission. The significance of this right has
been acknowledged by the ILO Committee on Freedom of Association through
Conventions and Recommendations. In 1960 the Committee declared that:

“The right to bargain freely with employees with respect to conditions of work
constitutes an essential element in freedom of association, and trade unions
should have the right, through collective bargaining or other lawful means to
seek to improve the living and working conditions of those whom the trade
unions represent and public authorities should refrain from any interference
which would restrict this right or impede the lawful exercise thereof.”

Even way back before 1960, the 1944 Declaration of Philadelphia which is now part
of the ILO Constitution, had already acknowledged the role of the ILO in the
promotion of collective bargaining. The Declaration affirmed “the solemn obligation
of the International Labour Organisation to further among the nations of the world
184 See Preamble to Part XIII of the Treaty of Versailles 1919 and Declaration of Philadelphia 1944,
Article II (c).
185 Van Niekerk et al Law at Work (2008) 341.

57
programmes which will achieve the effective recognition of the right of collective
bargaining”.186

In the years that followed, particularly in 1949, the ILO Convention 98 on the Right to
Organise and Collective Bargaining was adopted and to date it remains the main
source of employees’ right to collective bargaining. Apart from Convention 98, there
are numerous other Conventions and Recommendations which promote collective
bargaining between employees and their employers, such as Convention No. 154
Collective Bargaining Convention 1981, Convention No 135 Workers’ Representative
Convention 1971 and Convention No 151 on the right of public employees to
organise.187

4.4 COLLECTIVE BARGAINING UNDER THE CONSTITUTION AND THE LRA

FRAMEWORK
As noted earlier, the right to strike for the purposes of collective bargaining is one of
the cardinal rights protected in section 23(5) of the Constitution. The Constitutional
Court also confirmed the importance of collective bargaining in the case of Numsa v
Bader Bop.188 The court held that

“... it is through industrial action that workers are able to assert bargaining
power in industrial relations. The right to strike is an important component of a
successful collective bargaining system”.

Actually, the right to strike is the only basic human right that “forces” others to do
what they wish not to do, through an expression of a collective voice of employees.189

186 ILO: Constitution of the International Labour Organisation and Standing Orders of the
International Labour Conference Geneva (1998) 23 24.
187 See also Recommendation 91: Collective Agreements Recommendation 1951,
Recommendation 92: Voluntary Conciliation and Arbitration Recommendation 1951,
Recommendation 94: Co-operation at the Level of the Undertaking Recommendation 1952,
Recommendation 113: Consultation (Industrial and National Levels) Recommendation 1960,
Recommendation 130: Examination of Grievances Recommendation 1967, Recommendation
143: Workers’ Representatives Recommendation 1971, Recommendation 163: Collective
Bargaining Recommendation 1981, Recommendation 129: Communication within the
Undertaking Recommendation 1967 and OECD Guidelines for Multinational Enterprises 1976;
revised in 2000.
188 (2003) 24 ILJ 305 (CC). The court also said that “section 23 of the Constitution recognizes the
importance of ensuring fair labour relations.
189 Mc Farlane The Right to Strike (1981) 184.

58
Notably, the LRA removed the duty to bargain collectively which the Industrial Court
earlier imposed on contending parties in the exercise of its unfair labour-practice
jurisdiction. This means that an employer is at liberty to refuse to engage with a
trade union and in turn, the trade union may exercise its right to strike in respect of
such a refusal to bargain. However, by extending and bolstering the right to strike,
the legislature has effectively empowered unions to have recourse to the strike as an
integral aspect of the collective bargaining process.

Interesting to note, is that the relationship between the right to strike and collective
bargaining dates back years ago before the adoption of both the Constitution and the
LRA.190 It is a right that is extremely important for collective bargaining to function
effectively in maintaining industrial peace.191 Budeli observes that the employees’
right to strike is a key component of their right to freedom of association, and one of
the weapons wielded by trade unions when collective bargaining fails. 192 It therefore
remains a powerful tool in the hands of workers to persuade their employer to
bargain collectively.

Similarly, the right to freedom of association would remain ineffective if the right to
bargain collectively and to strike were not well recognised.193 Grogan equates “the
relationship between collective bargaining and industrial action much like the
relationship between war and diplomacy”.194 Bendix opines that it is the central
process emanating from the conduct of a collective labour relationship.195

190 See Food & Allied Workers Union v Spekenham Supreme (2) (1988) 9 ILJ 628 (IC); See also
National Union of Mineworkers v East Rand Gold & Uranium Co Ltd (1991) 12 ILJ 1221 (A)
1237 1238.
191 Brand Strike Avoidance – How to Develop an Effective Strike Avoidance Strategy 23rd Annual
Labour Law Conference, Johannesburg (August 2010) 1.
192 Budeli “Understanding the right to freedom of association at the workplace: its components and
scope” 2010 31 Obiter 27 28.
193 Olivier ‘Statutory employment relations in South Africa’ in Slabbert et al managing employment
relations in South Africa (1991) 5 61.
194 Grogan Collective Labour Law (2010) 141. The author also states that “collective bargaining in
the employment arena is much the same as bargaining that takes place in other spheres of life”.
See also Basson et al Essential Labour Law 276 277 where Basson define collective bargaining
as a process through which one or more trade unions engage in negotiations which one or more
employers or one or more employers’ organisations with the purpose of regulating terms and
conditions of employment or matters of mutual interest. Fourie and Olivier Principle of Labour
Law (2004) 533 defines collective bargaining as “a voluntary process by means of which
employees in an organised relationship, with regard to employment conditions or disputes
arising therefrom with the object of reaching an agreement on these matters.”
195 Bendix Industrial Relations in South Africa (1989) 76.

59
Further, in the South African context, the right to strike is an integral part of collective
bargaining and freedom of association in pursuit of common cause for the betterment
of the members of the striking employees, non-striking employees and the
employers.

While strike may be used for trade negotiation, collective bargaining offers a better
solution and it is also the right of the employees to bargain collectively. This is tacitly
recognised in the LRA and constitutionally approved in 1996 in South Africa. The
right to collective bargaining and, by implication, including the right to strike are
guaranteed under the ILO and other international instruments.196 In effect, collective-
bargained agreements often involve transformation. Transformation works best when
both sides agree to the future direction. That is the reason why collective bargaining
is so appropriate to organizations undergoing change. An imposed change can be
resisted and undermined in subtle but corrosive ways by those who feel that change
was imposed without their consent.197

Unlike the 1956 LRA which contained a provision for a duty to collective bargaining,
the current LRA retained a voluntarist approach to bargaining in which the parties
would determine their own bargaining arrangements through the exercise of
power.198 The removal of the duty to bargaining was balanced by the introduction of
a set of organisational rights in chapter III of the LRA, and the concerted promotion of
collective bargaining, particularly at the sectoral level. Underpinning collective
bargaining is a protected right to strike that is given to unions that follow the statutory
procedure.

The significance of this right was recognized in South Africa even before the
enactment of the Interim and final Constitutions as well as the LRA. The old
Industrial Court in giving content to unfair labour practices, held that the right to
bargain collectively existed in South African labour law. Whether or not the right to

196 Bendix Industrial Relations in South Africa (2010) 24.

197 Task Force to Review Part I of the Canadian Labour Code,Seeking a Balance: Review of the
Canada Labour Code Part 1, 1995, Chapter 1, [Link]
lcctr_tclcr/ondex_e.html. (Accessed 9 August 2014.
198 Van Jaarsveld Principles of Labour Law (2005) 791.

60
engage in collective bargaining entails within it a corresponding duty to bargain which
is legally enforceable remains a question this study seeks to answer.

4.5 THE NEXUS BETWEEN COLLECTIVE BARGAINING AND INDUSTRIAL

ACTION
The right to collective bargaining is closely related to the right to strike. It may not be
effective without a reliable threat of a strike. In effect, strikes and collective
bargaining help to redistribute the unequal power between the parties. Employees
use economic pressure through strikes in order to strike a balance in the unequal
bargaining powers between an employer and an employee. This in return enhances
social justice in the workplace. Collective bargaining between the employees’ union
and the employer deals with the terms and conditions under which labour will be
supplied by employees and purchased by employers. Since the employers have
both powers and rights in law and practice over property and capital, they are able
through collective bargaining to propose the terms upon which they will purchase
labour for its operations. In turn, if there is a failure to collectively agree, the
employees have the collective right to withdraw their labour rather than to accept the
employer’s offer.

As a consequence, a strike initiated by a union will inevitably affect both sides. The
employer’s operation may be shut down with the attendant loss of revenue, and the
employees will suffer hardship because they will be out of work and will be deprived
of their salaries and wages. The workers resort to industrial action in order to force
the employer to reach a mutually acceptable agreement about the terms and
conditions of employment. In this sense the economic purpose of strike action plays
an important role in collective bargaining.199 Therefore any attempt to limit this right
further as proposed in the amendment Bill is indeed taking away the employees’
fundamental right to strike guaranteed by the Constitution. It is considered as one of
the necessary conditions for collective bargaining to exist as it was built into the
bargaining process.200

199 Ben-Israel International Labour Standards: the Case of the Freedom to Strike (1987) I.
200 Myburg “100 Years of Strike Law” 2004 25 ILJ 966.

61
Additionally, the right to strike is not only a logical step in the collective-bargaining
system but is also part of the price paid for industrial self-regulation of conditions of
employment. Particularly, it forms an integral part of the process toward securing
adjustment of expectations of economic realities. The ILO’s Committee on Freedom
of Association maintains that “the right to strike is one of the essential means through
which workers and their organizations may promote and defend their economic and
social interests”.201

Today the right to strike is essential to a democratic society, so one might justifiably
wonder why this constitutional right should be limited even further.

There can be little doubt that the right to strike is an integral part of any system of
collective bargaining in order to guarantee the economic right of employees. 202 A
denial of this right would lead to an enormous weakening of the bargaining power of
employees as they cannot equally match the strength of management in the
inevitable conflict of interests between the parties. The right to strike will allow the
employees more power to meet the needs of maintaining equilibrium in industrial
relations. Kahn-Freund has expressed a similar view when he said that:

“In the context of the use of the strike as a sanction in industrial relations, the
equilibrium argument is the most important… the concentrated power of
accumulated capital can only be matched by the concentrated power of the
workers acting in solidarity.”203

201 See fn 23 of ch 1. See also the Committee on Freedom of Association, Digest 522. See also
Grogan “Labour Law/ Employment Law Journal/ 2013/ April/ Strike notices What must they
contain?” where Grogan indicates that employees use the right to strike as a weapon to prove
to the employer that resisting to accepts their demands could be fatal and costly than acceding
to them. See also FGWU v Minister of Safety & Security 1999 ILJ 1258 (LC) 1264 par 18 and
CEPPWAWU v Metrofile (Pty) Ltd 2004 ILJ 231 (LAC) 246 par 53.
202 Patel (ed) Workers Rights: From Apartheid to Democracy -What Role for Organised Labour
(1994) 22.
203 Kahn-Freud and Hepple Laws against Strikes (1972) 5. Grunfeld noted that “…if one set of
human beings is placed in a position of unchecked industrial authority over another set, to
expect the former to keep the interest of the latter constantly in mind and, for example, to
increase the latter’s earnings as soon as the surplus income is available…is to place on human
nature a strain it was never designed to bear” 52. See Grunfeld, Modern Trade Union Law
(1966) 33.

62
The right to strike is the only or if not one of the reasonable weapons which
strengthen the power of the employees at the bargaining table. 204 And if employees
could not, in the last resort, collectively refuse to work, they could not bargain
collectively.205 It is therefore called for in order to achieve a collective agreement.
Certainly, bargaining without the right to strike would be no more than “collective
begging”.206

4.6 CONCLUSION
This chapter has discussed the right to strike and collective bargaining. It may be
argued that strikes damage economic performance, reduce living standards and
destroy jobs, and therefore limitations on the constitutional right to strike are needed.
However, this right remains an important instrument in resolving conflicts of interest.
In particular, it can force a party who is refusing to negotiate, to join the negotiating
table.

This chapter finds that, rather than further limiting an already over-limited right to
strike, a peaceful resolution of industrial disputes through rational discussion and
exchange of views should be regarded as the preferred means of settling work
related disputes. If not, South Africa could be heading in the direction of the United
Kingdom where no right to strike exists. Actually, a recent decision of the UK Court
of Appeal in Metrobus Ltd v Unite the Union207 shows that the right to strike is simply
a legal metaphor, and that a strike by employees (for whatever reason) will typically
constitute a breach of contract by the employees involved and give rise to liability on

204 Lending support to necessity of the right to strike in collective bargaining, Lord Wedderburn of
Charlton further rationalised: “To protect such a right is not to approve or disapprove of its
exercise in any particular withdrawal of labour, it is to recognise the fact that the limits set to the
right to strike and to lockout are one measure of the strength which each party can in the last
resort bring to bear at the bargaining table. The strength of a union is bound to be related to its
power and its right to call out its members, so long as any semblance of collective bargaining
survives.” See Wedderburn The Worker and the Law (1986) 245.
205 Kahn-Freud Labour and the Law 292.
206 See Jacobs “The Law of Strikes and Lock-outs” in Blanpain and Engels (eds) Comparative
Labour Law and Industrial Relations in Industrialized Market Economies (1993) 423. Perrins
asserts that it is an arguable question whether industrial action should be allowed only as a last
resort and whether collective bargaining is the best means of settling terms and conditions of
employment. He however agrees that collective bargaining necessarily involves the freedom to
take industrial action, see Perrins Trade Union Law (1985) 22.
207 [2009] EWCA Civ 829.

63
the part of the union for inducing the employees to break their contracts of
employment.

The role of the State is to create a legal framework within which parties may address
their labour concerns. As such, developing effective and stable collective-bargaining
institutions are proposed. This can be achieved fairly in the context where the rules
of the game are specified within a fair and balanced legislative structure. The
chapter has also looked at the position of the ILO, the Constitution and the LRA with
regards to collective bargaining. Whether this is what the proposed amendments’
limitations intend, remains to be seen. It is vital that the LRA properly reflects the
intentions of the Constitution, particularly in relation to employees’ and trade unions’
right to strike.

The overwhelming conclusion in this chapter is that the legislative framework that
finds an appropriate balance between employees, employer and broader social
interests, as far as the regulation of strike is concerned, is an effective collective-
bargaining process instead of having a more complex and onerous set of provisions
that are designed to impede and impair access to a right to strike.

In reviewing and revising these provisions it is essential that policy makers have
regard to the requirements of stable, voluntary collective-bargaining systems. There
is a need to strike a fair balance between the interests of employers and employees
in order to avoid unnecessary regulatory burdens and complexity in accessing the
employees’ constitutional right to strike. In this case, the conventions, established by
the ILO through its tripartite processes, and the principles, established by its
supervisory bodies in interpreting the application of those conventions, could provide
useful guidance in establishing a stable, lasting foundation for encouraging mutually
beneficial and cooperative relations. In fact, the ILO has indicated that research
shows that countries with highly-coordinated collective bargaining tend to have less
wage inequality, lower unemployment and fewer and shorter strikes than countries
where collective bargaining is less established.208

208 International Labour Organisation “Collective bargaining” available at

[Link]
standards/collective-bargaining/lang--en/[Link]. (Accessed on 23 October 2014.

64
 CHAPTER 5
IS THE RIGHT TO STRIKE IN TERMS OF THE LRA TOO LIMITED?
SOUTH AFRICA’S POSITION IS COMPARED TO THE ILO’S
JURISPRUDENCE

5.1 INTRODUCTION
In Chapter 4 reference was made to the importance of developing structures that
support a meaningful collective-bargaining system as an alternative to further limiting
the right to strike. Importantly, the chapter established that the LRA views collective
bargaining as a preferred method of resolving labour disputes. This chapter
compares the South African position regarding the legal protection of the right to
strike to that of the ILO’s jurisprudence.

The International Labour Organization (ILO) represents a specialized organization of

the United Nations that has a special place in shaping labour in general
internationally. South Africa became a member state to the ILO in 1919 but withdrew
in 1966 due to the impact of the apartheid regime at the time. Subsequently,
following the democratic dispensation in 1994, South Africa resumed its
membership.209 Because South Africa is a member state of the ILO, it is important to
test the provisions of the LRA against the principles developed by the ILO’s bodies.
In fact, one of the primary reasons why the LRA was enacted is to give effect to the
obligations incurred by the Republic as a member state of the ILO.210 Similarly,
section 39 of the Constitution makes it peremptory for a court to take international
laws into account and the way courts in other countries have decided on similar
cases.

A very good example of how the international labour standards have played a pivotal
role in shaping our labour laws was in the case of National Union of Metalworkers

209 Budeli Freedom of association and trade unionism in South Africa: from Apartheid to the
democratic constitutional order (LLD Thesis, University of Cape Town 2007) 256.
210 S1(b) of the LRA.

65
and Others v Baderbop.211 The court held that the conventions ordinarily interpreted,
afford trade unions the right to recruit members and to represent those members at
least in workplace grievances and to recognise the right to strike in order to enforce
collective-bargaining demands. The jurisprudence of the ILO’s supervisory bodies
suggested that a reading of the LRA which permitted minority unions the right to
strike over the issue of shop-steward recognition, would be more in accordance with
the principles of freedom of association entrenched in international labour standards.

5.2 INTERNATIONAL LAW AND EMPLOYEES’ RIGHT TO STRIKE

5.2.1 INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

It is remarkable to note that the right to strike has become so important that it has
been recognised and protected by many member states of the ILO. This right is
embodied in some of the significant international human-rights instruments, including:

 The Universal Declaration of Human Rights (UDHR of 1948);

 the International Covenant on Civil and Political Rights (ICCPR of 1966); and
 the International Covenant on Economic, Social and Cultural Rights (ICESCR
of 1966).

In order to understand the scope of the right to strike under these instruments, a
cursory discussion of each will follows.

[Link] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The UDHR was adopted by the UN’s General Assembly Resolution 217a(III) in Paris
on 10 December 1948. It was adopted for common standards of achievement for all
peoples and all nations.212 However, the UDHR does not mention the right to strike
directly. This right derives indirectly from the right of “everyone to peaceful assembly
and association”. It plays a significant role to the ILO by promoting and defending
human rights. It sets out, for the first time, the fundamental human rights to be

211 [2003] 2 BLLR 103 (CC). See also Basson et al Essential Labour Law 267. Chicktay
“Democracy, Minority Unions and the Right to Strike: A Critical Analysis Numsa v Bader Bop
(Pty) Ltd (2003) 2 BCLR (CC)” 2007 28 Obiter 159.
212 See the preamble of the UDHR. [Link] (Accessed on the 20-9-
2014).

66
universally protected. In effect the ILO’s Committee of Experts on the Application of
Conventions and Recommendations has emphasised that:

“The Universal Declaration ... is generally accepted as a point of reference for

human rights throughout the world, and as the basis for most of the standard
setting that has been carried out in the United Nations and in many other
organizations since then. ... The ILO’s standards and practical activities on
human rights are closely related to the universal values laid down in the
Declaration, ... [T]he ILO’s standards on human rights along with the
instruments adopted in the UN and in other international organizations give
practical application to the general expressions of human aspirations made in
the Universal Declaration, and have translated into binding terms the principles
of that noble document.”213

Worth noting is that the UDHR is not a treaty and therefore no binding
obligations arising from it affect the member states. However, it was felt that its
adoption would provide an important guideline to all those who strive to raise
man’s material standards of living. More importantly, its constant reaffirmation
in subsequent universal and regional instruments, as well as national
constitutions, has led to some of its provisions achieving the status of
customary international law.214 For instance, Article 23, paragraph 4 of the
UDHR proclaims that:

“Everyone has the right to form and to join trade unions for the protection of his
interests. This is a more specific manifestation of the right laid down in article 20
of the Universal Declaration to the right of freedom of peaceful assembly and
association.”

The right to strike is not expressly protected by the European Convention on Human
Rights and does not expressly provide for the right to strike. 215 However, its Article
11 provides that:

213 ILO: Report of the Committee of Experts on the Application of Conventions and
Recommendations: General report and observations concerning particular countries, Report III
(Part 1A), International Labour Conference, 86th Session, 1998, Geneva, 16-17, par 56-58.
214 Manamela and Budeli “Employees’ right to strike and violence in South Africa” 2013 46
Comparative and International Law Journal of Southern Africa 311. Waldock “Human rights in
contemporary international law and the significance of European convention” 1997 11
Comparative and International Law Journal of Southern Africa 121. See also Dugard
“International Law: A south African Perspective” 2000 34 Comparative and International Law
Journal of Southern Africa 241.
215 Ewing and Hendy “The Dramatic Implications of Demir and Baycara” 2010 39 ILJ 2.
[Link] (Accessed 0-10-2014).

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1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for
the protection of his/her interests.

2. No restrictions shall be placed on the exercise of these rights other than

prescribed by law and which are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder or
crime, for the protection of health or morals or for the protection of the rights
and freedoms of others. This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of
the police or of the administration of the State.

[Link] THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

(ICCPR)
South Africa ratified the ICCPR in December 1998 and it is therefore bound by its
provisions. Like Article 22 of the ICCPR and Article 23(4) of the Universal
Declaration declare that “[E]veryone shall have the right to freedom of association
with others, including the right to form and join trade unions for the protection of his
interests.”216 Although both the UDHR and the ICCPR do not expressly refer to the
right to strike, a positive inference may be drawn since they protect related rights,
such as peaceful assembly, protected under Article 21 and of course Article 22
quoted above. Of particular importance is Article 22(2) which stresses that no
restrictions may be placed on the exercise of this right “other than those which are
prescribed by law and which are necessary in a democratic society” and allow “lawful
restrictions on members of the armed forces and of the police in their exercise of this
right”.

[Link] INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS (ICESCR)
The ICESCR is a multilateral treaty adopted by the UN’s General Assembly on 16
December 1966 and came to force in 1976. It has its roots in the same process that
led to the UDHR. It obliges its parties to work toward the granting of social,
economic and cultural rights, including Article 8 which protects labour rights. Article
216 Article22 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S.
171.

68
8(1)(d) guarantees the states’ parties “the right to strike, provided that it is exercised
in conformity with the laws of the particular country”.217 In the South African context,
therefore, the right to strike has to comply with the provisions of sections 64 and 65
of the LRA. The ICESCR recognizes the imposition by a court of lawful limitations on
the right to strike. It allows these rights to be limited for members of the armed
forces, police, or government administrators. As a consequence, any exercise of this
right outside the framework of the LRA will be in violation of not only the LRA but also
Article 8 of the ICESCR.

5.3 EUROPEAN REGIONAL INSTRUMENTS PROVIDING AN EXPRESS RIGHT

TO STRIKE
The European Council has adopted several legal instruments that directly or
indirectly regulate the right to strike. The most important legal instrument adopted by
the Council of Europe, which expressly makes provisions for the protection of the
right to strike, can be found in three of the main European Instruments. The
instruments include: The European Social Charter (1961), revised in (1996), The
Community Charter of the Fundamental Social Rights of Workers (1989) and The
American Convention on Human Rights (Pact of San José, 1969).

5.3.1 THE EUROPEAN SOCIAL CHARTER (1961) REVISED IN (1996)

The European Social Charter was passed in 1961 and subsequently revised in 1996.
It is one of the most prominent Charters, because it takes an approach similar to that
of the ILO’s standards. Article 6(4) of this Charter contains the first express
authorization in an international instrument of the right to strike. The Charter section
that regulates the right of collective bargaining explicitly states that:

“workers and employers have the right to collective action in cases of conflicts
of interest, including the right to strike in accordance with the obligations that
may arise from the collective agreement the parties have previously entered
into.”

217 Ratification information sourced from Office of the United Nations High Commissioner for
Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, 8
February, 2002. Online, Available: [Link] For discussion of Article
8 see Fenwick, Minimum Obligations with Respect to Article 8 of the International Covenant on
Economic, Social and Cultural Rights, in Chapman and Russell, (Eds.) Core Obligations:
Building a Framework for Economic, Social and Cultural Rights, Intersentia, Antwerp (2002) 53.

69
Heppele observes, however, that despite this express provision, the Charter has
been “little known, rarely referred to and often ignored in practice”.218

Notably, the UK ratified the Charter on 11 July 1962 and has accepted 60 out of 72
provisions, including Article 6(4).219

5.3.2 THE COMMUNITY CHARTER OF THE FUNDAMENTAL SOCIAL RIGHTS

OF WORKERS (1989)
This is another important piece of European instrument to expressly provide for the
right to strike.220 Of importance to the right to strike are Articles 13 and 14 of this
Charter. Article 13 regulates the right to organize collective action in cases of
conflicts of interests. It provides that

“The right to resort to collective action in the event of a conflict of interests shall
include the right to strike, subject to the obligations arising under national
regulations and collective agreements.”

Article 14 permits the State Party to determine under which conditions and to what
extent it will apply the right to strike in the armed forces, police and civil service.

Notably the Charter was not incorporated into Community Law as a binding
instrument. However, it has been invoked by the European Court of Justice as an
interpretative tool.221

Both the Community Charter 1989 and the European Social Charter 1961 subject the
right to strike to national regulations and collective agreements. Such requirement

218 Hepple “25 years of the European Social Charter” 1989 10 Comparative Labour Law Journal
460.
219 The United Kingdom and the European Social Charter, Table of Accepted provisions (June
2010),[Link] Article
6(4) provides that the Contracting Parties undertake to consider themselves bound by the
obligations laid down in the following articles and paragraphs and also the right of workers and
employers to collective action in cases of conflicts of interest, including the right to strike,
subject to obligations that might arise out of collective agreements previously entered into. The
European Social Charter of 18 October 1961 [Link]
Html/[Link].
220 Community Charter of the Fundamental Social Rights of Workers of 9 December 1989.
[Link]
221 Barnard Employment Law (2006) 13.

70
would reduce the influence of these European instruments on certain Member
States, for instance the United Kingdom.

5.3.3 THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

(2000), REVISED IN (2007)
The other European legal instrument to expressly provide for the right to strike is the
Charter of Fundamental Rights of the European Union, adopted in 2000 and revised
in 2007.

Article 28 states that:

“Workers and employers, or their respective organisations, have, in accordance

with Union law and national laws and practices, the right to negotiate and
conclude collective agreements at the appropriate levels and, in cases of
conflicts of interest, to take collective action to defend their interests, including
strike action.”

This Charter also emphasizes that the primary purpose of a strike should be to put
pressure on the employer in the course of negotiations of employment matters.222

The European Courts of Human Rights (ECtHR) have also been in the forefront in
trying to lead the evolution and protection of the employees’ right to strike. In
UNISON v UK,223 the ECtHR stated that “the ability to strike represents one of the
most important means by which trade unions can fulfil the function of protecting the
occupational interests of their members”.

Similarly, in Wilson and Palmer v the United Kingdom,224 the issue was discrimination
against trade union members who refused to surrender trade-union representation.
The ECtHR was even clearer since it stated that the essence of a voluntary system
of collective bargaining is that it must be possible for a trade union which is not
recognised by an employer to take steps, including if necessary, industrial action,
with a view to persuading the employer to enter into collective bargaining with it on
those issues which the union believes are important for its members’ interests.

222 Ibid.
223 (2002) ECHR 2002-VI 301, European Court of Human Rights (ECtHR) 320.
224 Wilson and Palmer v The United Kingdom (2002) par 46. Applications nos. 30668/96, 30671/96
and 30678/96.

71
In the leading case of Metrobus v Unite the Union case,225 the UK Court of Appeal,
the court acknowledged that Article 11 did not recognise expressly either a right to
collective bargaining or a right to strike. However, the court emphasised that a
balance needs to be struck between the rights and interests of workers and their
trade unions. An objective test needs also be applied in order to determine whether
the limitations on the right to strike go too far because of their complexity, detail and
rigidity, which in return deny the exercise of Article 11 rights.

In Demir v Turkey,226 the case concerned an annulment of a collective agreement. In

holding unanimously that there had been a breach of Article 11, the Grand Chamber
expressly repudiated the jurisprudence of the 1970s, emphasising that “the
Convention is a living instrument which must be interpreted in the light of present-day
conditions, and in accordance with developments in international law, so as to reflect
the increasingly high standard being required in the area of the protection of human
rights”.227

The ECtHR ruled in favour of the union and held that at both international and
national levels the practice of contracting states in such matters, the right to bargain
collectively with the employer has, in principle, become one of the essential elements
of the right to form and to join trade unions for the protection of one's interests. For
the trade union it is an essential means to promote and secure the interests of its
members. The annulment of the collective agreement in question constituted
interference with the applicants' rights under Article 11.

A year later in Enerji Yapi-Yol Sen v Turkey228 the case related to a circular from the
Prime Minister's Public-Service prohibiting public-sector employees from taking part
in a national one-day strike organised by the Federation of Public Sector Trade
Unions “to secure the right to a collective bargaining agreement”. For the first time,
225 [2009] IRLR 851, CA. See also Ruth Dukes “the right to strike under UK law: Not much more
than a slogan?” 2010 39 ILJ 82.
226 [2009] IRLR 766 ECtHR .
227 [2009] IRLR 766 ECtHR par 146.
228 Application No 68959/01, judgment dated 21 April 2009 [Link]
press/pages/[Link]?i=003-2712212-2963054#{"itemid":["003-2712212-2963054"]}
(Accessed 8-10-2014).

72
the court recognised that Article 11 protects the right to strike and that State
interference with that right must be justified in accordance with Article 11(2). The
court stated that the right to strike was not “absolute” and could be subject to
“restrictions”. However, the court found that the adoption and application of the
circular did not answer a “pressing social need” and that there had been
disproportionate interference with the applicant union’s right to strike.

More recently the trilogy on strike law in Europe came to the court in Karacay v
Turkey,229 Kaya and Seyhan v Turkey230 and Çerikçiv Turkey.231 In these cases,
public servants each participated in days of strike action called by their union. Each
was subjected to a disciplinary inquiry and subsequently disciplined for leaving their
workplaces without authority. Each was given a written warning “to be more attentive
to the accomplishment of his/her functions and in his/her behaviour”. The court
found that this constituted a breach of their right of freedom of association under
Article 11(1), emphasising once again that a restriction on the right to strike will
infringe Article11(1). This in itself is a remarkable conclusion with wide implications,
given the subject matter of the strikes, which does not appear to have been directly
related to collective bargaining.

5.3.4 THE AMERICAN CONVENTION ON HUMAN RIGHTS (PACT OF SAN

JOSÉ, 1969)
In America, Article 16 of the American Convention on Human Rights provides for
freedom of association. The Additional Protocol to the American Convention on
Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San
José, 1988) develops this freedom of association in Article 8, which closely
resembles the provisions of the International Covenant on Economic, Social and
Cultural Rights. It contains one provision not found in any of the other standards
examined here, affirming that no one may be compelled to belong to a trade union.
This makes trade-union security clauses or practices contrary to the Protocol.

229 Application 6615/03, 27 March 2007, definitive version of the judgment on 27 June 2007 148.
230 Application 30946/04, 15 September 2009 149.
231 Application33322/07, 13 October 2010 153.

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5.4 THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS (1981)
In the African context, the African Charter on Human and Peoples’ Rights (1981)
contains no provision directly on freedom of association for employers or workers.
Nevertheless, it does contain significant provisions in Article 10 and 11. They
respectively provide a general assertion for the protection of the right to free
association provided that employers and workers abide by the law and the right to
freedom of assembly.

After examining the express right to strike in European and international instruments,
the next sub-section will focus on the Protection of employees’ right to strike under
the international labour law.

5.5 THE ABOLITION OF FORCED LABOUR CONVENTION 1957

It is suggested that the freedom from forced labour should also be accepted as one
of the grounds for international and European protection of a right to strike. Since
1945, forced labour has come to be seen a means of political and social coercion
and has fallen within the protection of human rights.232

Particularly, Article 1 of this Convention states that forced or compulsory labour

should be suppressed as:

a) a means of political coercion or education or as a punishment for holding or

expressing political views or views ideologically opposed to the established
political, social or economic system;

b) a method of mobilising and using labour for purposes of economic

development;

c) a means of labour discipline;

d) a punishment for having participated in strikes; and

232 Lammy Betten, International Labour Law, Selected Issues (Kluwer Law and Taxation
Publishers, The Netherlands 1993). [Link]
(Accessed 12-10-2014).

74
e) a means of racial, social, national or religious discrimination.

As regards the protection of the right to strike, no criminal sanction is imposed

anymore for the failure to perform an employment contract. However, injunctions
against trade unions restraining from calling for strikes or dismissal of participants
might be construed as compulsion to work.233

In such extent, the right to strike can be linked to the fundamental freedom from
forced labour and requires International and European protection.

5.6 PROTECTION OF EMPLOYEES’ RIGHT TO STRIKE UNDER THE

INTERNATIONAL LABOUR LAW
The basis of international labour law is the International Labour Conventions adopted
by the ILO.

However, the lack of an express mention of the right to strike in the ILO Conventions
has resulted in major inconsistency in the interpretation application of this right by
member States. This is probably due to this absence which has led to a number of
members not implementing this right properly and adequately and giving effect or
protection to this right.234 Perhaps, due to this absence, member States have sought
to unduly over limit this right to the extent that it has become practically inaccessible
and not exercisable. Therefore, the ILO’s supervisory bodies have had to deal with
this question more often than any other subject in labour relations, and it is by means
of this supervisory process that the ILO’s principles have developed.

The CFA recognises strikes for the purposes of promoting and defending the
interests of workers. This Committee has emphasised that the conditions that have
to be fulfilled under the law in order to render a strike protected should be reasonable
and in any event not such as to place a substantial limitation on the means of action

233 Ben-Israel “International Labour Standards: The Case of Freedom to Strike” (Deventer: Kluwer,
1988) 25; Tonia Novitz, International and European Protection of the Right to Strike (OUP, New
York 2003) 69.
234 [Link]

75
open to trade-union organizations.235 The Committee has further acknowledged that
the right to strike is one of the essential means through which workers and their
organizations may promote and defend their economic and social interests.236

The ILO, primarily Article 3 and 10 of the Freedom of Association and Protection of
the Right to Organise Convention237 and the Right to Organise and Collective
Bargaining Convention238 are the two leading international instruments providing
protection to the right to strike. Both of these instruments were ratified by South
Africa.239 In terms of these conventions, the general principle is that “the right to
strike is an intrinsic corollary of the right of association protected”.240 For that reason
strike action cannot be seen in isolation from industrial relations as a whole. In fact, in
most countries strikes are recognised as a legitimate weapon of trade unions in
furtherance of their members’ interests.241

235 ILO, 1996d, par. 498.

236 Servais “ILO standards on freedom of association and their implementation” 1984 123(6)
International Labour Review 765-781.
[Link] (accessed
24 June 2014). See also Committee on Freedom of Association, Digest, par 522. See also
Grogan “Strike notices: what must they contain?” 2013 Employment Law Journal 14. Grogan
indicates that employees use the right to strike as a weapon to prove to the employer that resist
to accept their demands could be fatal and costly than acceding to them. See also FGWU v
Minister of Safety & Security 1999 ILJ 1258 (LC) 1264 par 18 and CEPPWAWU v Metrofile
(Pty) Ltd 2004 ILJ 231 (LAC) 246 par 53. See also Art 8 United Nations International Covenant
on Economic, Social and Cultural Rights, which recognizes the important role of a right to strike
in support of economic and social interests, provided that it is exercised in conformity with the
laws of the particular country, in this case South Africa.
237 Convention No 87 of 1948. Article 3 of this Convention states “organizations of workers and
employers have the right to adopt their own statutes and rules, complete freedom to choose
their representatives, to organize their administration and activities and to shape their
programs”.
238 Convention No 98 of 1949. Article 1 of this Convention indirectly discusses the right to strike. It
states that "workers should use adequate protection (strike as a method of protection) against
all acts of discrimination in employment, which could be detrimental to union freedom"
especially if a worker is fired because he or she is member of a union or participate in union
activities outside working hours.
239 South Africa was re-admitted as a member of the ILO on 26 May 1994. This followed a period of
30 years of isolation from international labour forums after the country withdrew from the ILO in
1964 as a result of political pressure. An agreement between the South African Government
and the ILO was signed in Geneva on 5 June 1995 and it was ratified by Parliament on 11
October 1995. [Link] (Accessed on 12 August
2014).
240 General Survey, 1994, par 179. South Africa ratified both the ILO Convention No 87 of 1948
and No. 98 of 1949 on the 12 February 1996. The provisions of Convention No 87 which give a
legal basis for the general principle are Arts 3, 8 and 10.
241 CFA: Fourth Report (1953), Case No. 5 (India), in Seventh Report of the International Labour
Organisation to the United Nations (Geneva), Appendix 5, p. 181, par 27. See also International
Labour Office, Freedom of Association and Collective Bargaining, General Survey by the
Committee of Experts on the Application of the Conventions on Freedom of Association, the

76
While neither of these conventions expressly provides for a positive right to strike, the
jurisprudence developed by the Committee of Experts on the application of
Conventions and Recommendations242 and the CFA recognizes the existence of the
right to strike.243

5.7 CONDITIONS AND RESTRICTIONS FOR EXERCISING THE RIGHT TO

STRIKE
The supervisory bodies consider that the right to strike is not an absolute right. It
may be limited by law and under certain conditions.244

 A general prohibition of collective action can only be justified in the event of an

acute, in particular economic, national emergency and for a limited period of
time.

 The duty to prohibit a strike on the grounds of national security or public health
should not lie with the Government, but with an independent body.

 Demonstrations, go-slows, work-to-rule, overtime bans and other forms of

primary strike action should be permitted.

 Sympathy strikes should be permitted when the primary strike is lawful.

Right to Organise and Collective Bargaining and the Convention and Recommendation
concerning rural workers organisations, Report III (Part 4B), International Labour Conference
(1983) 69th Session 200 and 205.
242 Hereinafter referred to as the CEACR.
243 Creighton and Stewart Labour Law (2005) 533 and Gernigon, Odero and Guido, ILO Principles
concerning the right to strike, International Labour Office, Geneva, [Link] CFA was
established in 1951. After a relatively slow beginning, the number of cases submitted to the
CFA increased steadily for a number of years. Overall, the Committee has examined more than
2400 alleged breaches of the principles of freedom of association. It has also established an
elaborate jurisprudence, the key features of which are set out in the ILO’ Digest of decisions. It
does not concern “case law” in the strict sense of the word: The examination of periodic reports
on Conventions Nos. 87 and 98 also constitutes an important part of the work of the CEACR.
For example, in 2007, the Committee addressed “observations” to 103 of the 147 States that
had ratified Convention No. 87, plus direct requests to 55 States (including 30 that had also
received an observation).
244 ILO General Survey “Freedom of association and collective bargaining” 1994 par 164.
Hereinafter referred to as the General Survey 1994 par 176.

77
 A minimum safety service may be imposed in all cases of strike action when
such minimum service is intended to ensure the safety of persons, the
prevention of accidents and the safety of machinery and equipment.

 A minimum operational service may be established in the case of strikes in

public-utility services and in public services of fundamental importance;
employers’ and workers’ organisations and the public authorities should be
able to participate in determining this minimum service.

It is also noted that the right to strike should be exercised in line with other
fundamental rights of other citizens and employers.245 As a consequence, any strike
that fails to meet this prerequisite may be declared unprotected and may amount to
unfair labour practice. Parties involved in such strike incur civil-liability and
disciplinary sanctions.246

The ILO supervisory body has accepted that in most countries the law permits them
to impose a series of preconditions to be met in order to render a strike protected.
The preconditions must, however, be reasonable, and not substantially limit the
means of action open to trade-union organisations.247

The large number of Committee decisions on this issue may be attributed to the fact
that some 15 per cent of the cases submitted to it concerns the exercise of the right
to strike.248 Most recent cases before the ILO supervisory bodies relating to
Canadian provinces concern the denial or restrictions of collective bargaining and of
the corollary right to strike in the public sector and other services.249

245 Gernigon, Odero, and Guido “ILO principles concerning the righto strike” ILO Geneva (2000) 42.
[Link]
[Link].
246 General Survey 1994 par 176.
247 ILO 1996d par 498. For instance, giving a prior written notice of strike to the employer before
embarking on strike, the holding of a secret ballot, utilising the machinery of compulsory
conciliation and arbitration if required.
248 Gernigon, Odero & Guido “ILO principles concerning the righto strike” ILO Geneva (2000)43.
249 Case no 2467 (Canada/Quebec), report no 344, ILO Official Bulletin, vol. XC, 2007, Series B,
no1,461-587; cases no 2314 and no 2333 (Canada/Quebec), report no340 , ibid., vol. LXXXIX,
2006, ,Series B, no1,373- 432; case no 2405 (Canada/British Columbia), report no340, 318-
338 and report no 343 , ibid.,no3, 433-457; case no 2430 (Canada/Ontario), report no343, 339-
363; case no 2324(Canada/British Columbia), report no 336, vol. LXXXVIII, 2005, Series B,

78
Also, certain procedural and substantive requirements set by the CFA and accepted
under the ILO must be met prior to strike.250 These include:

 The obligation to give the employer a prior written notice;251

 the obligation to have recourse to conciliation, mediation and (voluntary)

arbitration procedures in industrial disputes as a prior condition to declaring a
strike, provided that the proceedings are adequate, impartial and speedy and
that the parties concerned can take part at every stage;252

 the obligation to observe a certain quorum and to obtain the agreement of a

specified majority;253

 the obligation to take strike decisions by secret ballot;254

 the adoption of measures to comply with safety requirements and for the
prevention of accidents;255

 the establishment of a minimum service in particular cases;256 and

no1, 233- 284; case no 2277(Canada/Alberta), report no 333, vol. LXXXVII, 2004, Series B,
no1, 240- 277; report no 337, no2, [Link], 2005, Series B, no2, 343- 360; case no 2349
(Canada/ New Foundland and Labrador), report no337, 361- 407; cases no 2343, no 2401,
no2403 (Canada/Quebec), ) report no 338, ibid., no3, 536-603; case no2257, report no 335, vol.
LXXXVII, 2004, Series B, no3, 412- 470; case no 2305 (Canada/Ontario), report no 335, 471-
512. See Langille, "Can We Rely on the ILO?" Canadian Journal of Labour and Employment
Law, 2007, vol. no 13; Etherington “The B.C. Health Services and Support-Decision – The
Constitutionalization of a Right to bargain collectively in Canada: where did it come from and
where it lead?” Comparative Labour Law and Policy Journal 2009 30(4) 740 741.
250 International Labour Office, Labour legislation guidelines, Chapter 5: Substantive provisions of
labour legislation the right to strike. [Link]
[Link] (Accessed 9 August 2014). See also Gernigon, Odero and Guido, ILO Principles
concerning the right to strike, International Labour Office, Geneva, 2000 21 and also Romeyn
“The Need for Further Reform of the Law Relating to Industrial Action: striking a balance: the
need for further reform of the law relating to industrial action” Research Paper no. 33 2007–08
25 June 2008 (Accessed on 27 August 2014).
251 ILO, 1996d par 502 504.
252 ILO, 1996d par 500 and 501.
253 ILO, 1996d par 506-513.
254 ILO, 1996d par 503 and 510.
255 ILO, 1996d par 554 and 555.
256 ILO, 1996d par 556-558.

79
 the guarantee of the freedom to work for non-strikers.257

As it was noted in Chapter 2, before 1994, strikes that were not in compliance with
the requirement in the 1956 Act were declared illegal and as such, invited criminal
sanctions. Now, with our constitutional dispensation, the right to strike is fully
guaranteed to all employees in section 23 of the Constitution. However, employees
who wish to embark on strike must comply with both procedural and substantive
requirements as provided for under section 64 of the LRA that the strike must be
considered protected. Failing which, the unprotected strike can lead to disciplinary
hearings and ultimately to dismissal.

5.8 THE POSITION IN SOUTH AFRICA

The LRA, besides giving effect to the constitutional right to strike, imposes certain
limitations prior to embarking on strike action. These limitations are set out in
sections 64 and 65 of the LRA.

Generally section 64 of the LRA provides that the strike will only be protected if:

 the issue in dispute has been referred to a bargaining council or the

Commission for Conciliation, Mediation and Arbitration (CCMA);

 a certificate stating that the dispute has been unresolved is issued or a period
of 30 days has elapsed since the CCMA has received the referral of the
dispute; and

 the employer has been given 48 hours’ notice of the strike.

Section 65 of the LRA prohibits strike on six grounds. These includes, if:

 the person is bound by collective agreement that prohibits a strike in respect

of the issue in dispute;

257 ILO, 1996d par 586.

80
 an agreement requires the issue in dispute to be subjected to compulsory
arbitration;

 the issue in dispute is one that a party has the right to refer to arbitration or to
the Labour Court in terms of the Act, for example dismissal for misconduct,
unfair discrimination and retrenchment;

 that person is engaged in an essential service, or a maintenance service;

 there is an arbitration award, a collective agreement that regulates the issue in

dispute or any determination made by the Minister that regulates the issue in
dispute; and

 there is any determination made in terms of the Wage Act which regulates the
issue in dispute during the first year of that determination.

5.9 CONCLUSION
This chapter has noted that the right to strike forms an integral part of collective
bargaining. Despite the lack of an express provision affording protection to this right
under the ILO, it plays a vital role in the employer-employee relationship.

The chapter has also pointed out that most of the international instruments and
regional conventions expressly protect the employees’ right to strike. Importantly, the
majority of the member states provide for the protection of the right to strike in their
national legislation. Furthermore, the ILO’s supervisory body has accepted that in
most countries, the law permits them to impose a series of preconditions to be met in
order to render a protected strike. South Africa is a good example as it provides for
the protection of this right in the Constitution and the LRA gave effect to this right.

Perhaps, what has been at the core of many disputes in many member states is the
limitation placed prior to the exercise of this right. The ILO suggests that the
limitations should not be unduly and unreasonably limited. The rationale being that it

81
is a weapon used by the employees to force the employer to accede to their demand.
Arguably, there are two reasons why it is important for the LRA to follow the same
principles. Firstly, South Africa is a member State of the ILO. Secondly, section 1 of
the LRA sets the primary objects of the LRA, and that is the peremptory requirement
to consider international law.

The recent increase of the limitations on the right to strike has come to the spotlight
in the past months. It is debatable, whether the current South African labour-
legislative framework offers a sound environment for employees to exercise their
constitutional right to strike need to be measured and evaluated again against the
ILO’s jurisprudence.

82
 CHAPTER 6
CONCLUSION AND RECOMMENDATION

Following the transition to the new political dispensation and the dawn of democracy
in South Africa several remarkable legislations were enacted. Key amongst them
was the Constitution which recognises the right to strike as an important bargaining
tool for trade unions. The LRA which gives effect to the Constitution and to the
numerous obligations acquired by South Africa by virtue of its membership of the ILO
also protects this right. The constitutionalisation of the right to strike was a major
achievement for labour movement. More importantly, it contains a set of limitations
to the right to strike. This marked a shift from the old labour-relations dispensation
where the right was heavily limited with employees enjoying limited protection for
participating in strike actions.

Arguably the current LRA depicts one of the remarkable legal transformations in the
post-apartheid South Africa. It is structured in a way which brings about a
wholesome change in South Africa’s statutory industrial-labour system. These in turn
help to level the playing field by empowering employees with numerous rights,
including the right to strike.

This treatise has examined and shed some light on whether increasing the current
limitations on the employees’ right to strike is constitutionally and internationally
justified in terms of the ILO. Throughout, this study has observed and suggested
that, instead of increasing the limitation on the right to strike, the development of a
proper and effective collective-bargaining structure needs to be established. It is
clear that some similarities with the ILO and also disparities have become evident.

A key question posed in this treatise is whether increasing the limitation on the
employees’ right to strike protected by the Constitution and the LRA read with the
Amendments in the Bill, creates an unnecessary hurdle to the employees wishing to
strike.

83
In order to unlock this question, the procedural requirements, particularly those of
strike-notice requirement has been discussed. The study has observed that the LRA
requires only employees to issue a 48 hours’ written strike notice be given to the
employer prior to strike or 7 days’ notice in case of the State as the employer. The
LRA is silent on the content required in the notice. There have been notable
developments through court judgments that have increasingly sought to limit this
constitutional right even further. This has been so particularly through the increase of
the content in a strike notice before employees may embark on a strike. Arguably,
this severely limits employees from exercising their constitutional right to strike.

Currently, section 65(1)(c) of the LRA holds that no person may take part in a strike
or a lock-out if the issue in dispute is one that a party may have referred to arbitration
or to the Labour Court in terms of the LRA.

The proposed amendment to section 65(1)(c) seeks to further limit the right to strike
or lock-out by excluding this right in circumstances where the issue in dispute is one
that could be referred to arbitration or to the Labour Court in terms of the LRA, or in
terms of any other employment law.

It is clear from court judgments that the challenge, controversy and uncertainty of the
courts to maintain a balance between the constitutional right to strike and the
limitations provided for in the Act continue.

As Maserumule points out that the courts and the Act itself have failed to protect the
right to strike that is guaranteed by the Constitution.258

“… the labour courts have failed to protect the right to strike guaranteed by s 23
of the Constitution. It will further be argued that they have, instead, been
preoccupied with giving effect to the limitations of that right, as reflected in
chapter IV of the Act, and, in particular, the provisions of ss 64-66 and 77. The
result has been that the jurisprudence that has developed around strike law is
not on how to give effect to the right to strike but how to give effect to the
limitation of that right that is prescribed by the LRA.”

258 Maserumule “A perspective on developments in strike law” (2001) 22 ILJ 45 at 46.

84
The right to strike forms an integral part of collective bargaining. It is an effective and
powerful bargaining tool for employees to back up their demands. International,
regional, and national laws of most countries offer protection to this right. In the
South African context, the importance of this right is illustrated by the fact that section
23(2)(c) of the Constitution expressly provides every employee with the right to strike.

However, like any other right in the Bill of Rights, the right to strike is not absolute. It
is limited in terms of section 36 of the Constitution which is a general limitation clause
for all rights in the Bill of Rights. It is also limited in terms sections 64 and 65 of the
LRA. As pointed out earlier, section 64 of the LRA contains the procedural
requirements for a strike, which employees should follow in order for a strike action to
be protected. If the requirements are complied with, the strike will be protected
against the legal consequences. However, this protection may be waived and
employees dismissed if they engage in violent acts of misconduct, e.g. assault,
intimidation and damage to property. Participation of unprotected strike constitutes
misconduct and the employer will have a remedy for compensation for loss suffered
or may apply for an interdict. The employer may even dismiss the employee as long
as both substantive and procedural requirements are complied with.

On the international front, the protection of the right to strike is guaranteed under the
objectives of the ILO with the view to pursuing social justice for all. The study has
noted that most international and regional conventions raise this right to the pedestal
of universal human rights. South Africa is a member of the ILO and therefore such it
must comply with its obligation in line with the ILO. Section 39 of our Constitution in
fact contains a peremptory provision that obliges courts, tribunals or forums when
interpreting the Bill of Rights, to consider international law. Equally, section 3 of the
LRA sets out the primary objects of the LRA, and key amongst them is the
peremptory requirement to consider international law. In addition case law (Bader
Bop case) has made it clear for the Labour Court judges and arbitrators to review
their interpretation of the Act in regard to constitutionally guaranteed rights, including
the right to strike. This decision will cause judges to deviate from interpreting the Act
narrowly when dealing with strike law without considering the Constitution and
International Conventions of the ILO.

85
Although this right is not expressly provided for by the ILO Conventions, the
jurisprudence developed by the ICEACR and the CFA recognises the existence of
the right to strike. Two Conventions which are of particular importance to South
Africa are the Freedom of Association and the Protection of the Right to Organise
Convention 35 (1948) and the Right to Organise and Collective Bargaining
Convention (1949).

The supervisory bodies consider that the right to strike is not an absolute right. It can
be exercised only under certain conditions. However, a general prohibition of this
right is normally not acceptable. It may be justified in a situation of acute national
crisis, but only for a limited period and to the extent necessary to meet the
requirements of the situation.

But above all the ILO position remains that this right should not be unduly and
unreasonably limited. The rationale being that it is almost the only weapon used by
the employees to force their employer to accede to their demand. Importantly, is also
because the ILO views this right as an intrinsic corollary to article 3(1) of Convention
No 87, which accepts the right of the trade union and employer‘s organisation to
organise activities and to formulate programmes.

For the right to strike to be well structured, the need to be a realisation that it is not a
goal to be achieved at once but rather that various structures need to be put into
place to facilitate the progressive protection of this right. This would go a long way in
providing the employer-employee relationship, resulting in a stable working
environment.

A key factor which perhaps needs to be considered and which may go an extra mile
in improving laws regulating the right to strike is the modernization of the current
labour law to comply with the changing needs of employees at work. Most important
could be the establishment of a Code of Good Practice negotiated by labour and
business at NEDLAC, which will highlight guidelines that must be followed when
disputes relating to strikes arise, could be ideal. The government should also play an
active role in creating a more stable collective-bargaining structure.

86
Strikes are indeed ill winds which blow neither the employers nor employees any
good. Recently, South Africa has been confronted with a high level of violent strikes.
This impacts negatively on the image of the country internationally, and also affects
its economy as investors may be hesitant to do business in the country. Fortunately
South Africa has one of the most progressive labour-legislation regimes in the world
which makes dispute-resolution processes available to parties.

Clearly legislation in South Africa strengthens collective bargaining. This study

suggests that perhaps to achieve industrial peace in South Africa employers should
promptly review, negotiate and implement collective agreements entered with
workers concerning improvements in wages and general working conditions. More
importantly, employers must accept and respect the fact that collective bargaining is
the only viable and practical means of ensuring labour peace in the workplace.
Employees and their trade unions must use these processes instead of resorting to
violence. Lawlessness should not be allowed to infiltrate and pollute the right to
strike. Otherwise we shall continue to exercise fears over the continuous threats of
strikes, and strike in the industrial sector because workers will continue to use strike
as a weapon of last resort in collective bargaining.

Whether this is the point of view that will eventually prevail or whether the SCA or
even the Constitutional Court will also be called upon to decide on this issue, remains
to be seen. What is clear, however, is that there is still scope for considerable
controversy on this point.

Trade unions have also failed in their mandate to employee. This could perhaps be
due to how they are run and managed like political parties. They have failed, not
only in upholding the principles of responsible trade unionism but also in educating
their members about their rights and obligations in terms of the constitution, the LRA
and the ILO regarding the right to strike. This is typified by what happened in the
Marikana tragedy.

Perhaps impliedly, it seems it has now become acceptable in South Africa that strike
action has become part of the dispute-resolution mechanism since labour-related
issues cannot be addressed without strike action. This is indeed a dangerous

87
situation. Business and other social partners should negotiate this unprecedented
development at NEDLAC.

As Brad correctly suggests, social parties need to be trained in modern good-faith

negotiation and risk-analysis skills. With regard to collective bargaining, structures
need to be well financed and be given sufficient and reliable economic information.

The law also needs to be developed regarding the consequences and liabilities of
trade unions which fail to uphold the mandate. Two key issues can be inferred, not
only from the Marikana tragedy, but also strikes in South Africa in general. It seems
that some trade unions do not perform their duties correctly to ensure peaceful
strikes in compliance with the LRA. Trade unions should therefore take responsibility
to ensure that their members conduct themselves properly during strikes, whether
protected or not.

Secondly, they may be knowledgeable of the law but deliberately choose to ignore
the last-mentioned or lack the relevant knowledge, in which case training becomes
vital.

Trade-union representatives should be well trained, particularly on issues relating to

procedural requirements prior to a strike in terms of the LRA. Disregard by the shop
stewards to liaise with the employees on these procedural issues should make them
personally liable, or at least the trade union he represents should be held
accountable if employees go on an unprotected strike.

Finally, in closure, the right to strike is an important tool for employees during
collective bargaining and as such should not be over-limited.

88
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 TABLE OF CASES

Algoa Bus Company v SATAWU & others (2010) 2 BLLR (LC)

Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] BLLR

BAWU & others v Asoka Hotel (1989) 10 ILJ 167 (IC)

BAWU & others v Edward Hotel (1989) 10 ILJ 357 (IC)

BAWU v Palm Beach Hotel (1988) ILJ 1016 (IC)

BP Southern African (Pty) ltd v Chemical Workers Industrial Union & Others (1998) 3
LLD 317

BTR Dunlop Ltd v NUMSA (1989) 10 ILJ 701 (IC)

Business South Africa v The Congress of South African Trade Unions (1997) 6 BLLR
681 (LAC)

CEPPWAWU v Metrofile (Pty) Ltd (2004) ILJ 231 (LAC)

Ceramic Industries Ltd t/a Betta Sanitary ware & another v National Construction
Building Allied Workers Union & Others (1997) 6 BLLR 697 (LAC)

Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1990) ILJ
321 (LAC)

Chirwa v Transnet Ltd & Others [2008] 2 BLLR 97 (CC)

Chubb Guarding SA (Pty) Ltd v SATAWU (2005) 26 ILJ 1670

Columbus Joint Venture t/a Columbus Stainless Steel v NUMSA [1997] 10 BLLR
1292 (LC)

County Fair Foods v Hotel Liquor Catering & Allied Workers Union (2006) 27 ILJ 348
(LC)

CWIU v Reckett Household Products (1992) 13 ILJ 622 (IC)

Doornfontein Gold Mining Co Ltd v Num & others (1994) 15 ILJ 527 (LAC)

Equity Aviation Survives (Pty) Ltd v SATAWU & others (2009) 10 BLLR 933 (LAC)

FAWU v Middevrystaatse Suiwel Ko-operasie Bpk (1990) 11 ILJ 776 (IC)

FBWU & others v Hercules Cold Storage (Pty) Ltd (1990) 11 ILJ 47 (LAC)

Fidelity Guard Holdings (Pty) Ltd v Professional Transport Workers Union & Others
(1998) 20 ILJ 260 (LAC)

93
FBWU & others v Hercules Cold Storage (Pty) Ltd (1989) 10 ILJ 457 (IC)

FWCSA & others v Casbak Burger Box CC (1996) 17 ILJ 947 (IC)

Gillet Exhaust Technology (Pty) Ltd t/a Tennaco v National Union of Metalworkers of
SA on behalf of Members & another (2010) 31 ILJ 2552 (LAC)

Mercedes-Benz of SA (Pty) Ltd v NUMSA (1991) 12 ILJ 667

MWASA & others v Perskor (1989) 10 ILJ 1062 (IC)

NUMSA & others v Datco Lighting (Pty) Ltd (1996) 17 ILJ 315 (IC)

NUMSA & others v MacSteel (Pty) Ltd (1992) 13 ILJ 826 (A)

NUMSA & others v Malva (Pty) Ltd (1992) 13 ILJ 1207 (IC)

NUMSA & others v Maranda Mining Co Ltd (1995) 16 ILJ 1155 (IC)

NUMSA v Three Gees Galvanising (1993) 14 ILJ 372 (LAC)

SACWU & others v BHT Water Treatments (Pty) Ltd (1994) 15 ILJ 141 (IC)

Makhado Municipality v SA Municipal Workers Union & others (2006) 27 ILJ 1175
(LC)

Maritime Industries Trade Union of SA & Others v Transnet Ltd & Others (2002) 23
ILJ 2213 (LAC)

Metal and Allied Workers Union v BTR Sarmcol (1987) 8 ILJ 815 (IC)

Metrobus Ltd v Unite the Union [2009] EWCA Civ 829

Minister of Defence v SANDU (2007) 1 SA 422 (SCA)

Mondi Ltd (Mondi Kraft Division) v Chemical Energy Paper Printing Wood & Allied
Workers Union & Others (2005) 26 ILJ 1458 (LC)

National Union of Metalworkers of SA & others v Pro Roof Cape (Pty) Ltd (2005) 26
ILJ 1705 (LC)

National Union of Metalworkers of SA v Bader Bop (2003) 24 ILJ 305 (CC).

Northern Cape Allied Workers Union obo Sethlogo & others v CCMA & others (2009)
30 ILJ 1299 (LC)

NUMSA & others v Alfred Teves Technologies (Pty) Ltd (2002) 10 BLLR 995 (LC)

Numsa v Bader Bop (2005) 2 BCLR 182 (CC)

NUMSA v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd)

(2003) 24 ILJ 2171 (LC)

94
Pick ‘n Pay v SA Commercial Catering & Allied Union & Others (1998) 19 ILJ 1546
(LC)

Public Servants Association of South Africa v Minister of Justice and Constitutional

Development (2001) 11 BLLR 1250 (LC)

Re Certification of the Constitution of the Republic of South Africa (1996) 4 SA 744

(CC).

S v Zuma (1995) 2 SA 642 (CC)

SA Airways (PTY) Ltd v Aviation Union of SA & others and Mondi Packaging (Pty)
Ltd v Director General Department of Labour & others (2013) 31 ILJ 2558 (LAC).

SA Police Services v Police & Prisons Civil Rights Union (2007) 28 ILJ 2611 (LC)

SA Police Services v Police & Prisons Civil Rights Union (2010) ILJ 2844 (LAC)

SA Police Services v Police & Prisons Civil Rights Union and Another (2011) 32 ILJ
1603 (CC)

SACWU v SASOL Industries (Pty) Ltd & Another (2) (1989) 10 ILJ 1031 (IC)

SANDU v Minister of Defence (2004) 4 SA 10 (T)

SATAWU & Others v Moloto NO & Another (2012) 33 ILJ 2549 (CC).

SATAWU v Moloto (2012) 33 ILJ 2549 (CC).

SATAWU v Natro Freight (Pty) Ltd (2006) 8 BLLR 749 (LC)

Security Services Employer Organisation & others v SA Transport Workers Union &
others (2006) 27 ILJ 1217 (LC)

Security Services Employers’ Organisation & others v SA Transport & Allied workers
Union [2006] ZALAC 3

South African Airways v South African Transport Allied Workers Union (2010) ILJ
1219 (LC)

South African National Defence Union v Minister of Defence (2003) 3 SA 239 (T).

Tiger Wheels Babelegi (Pty) Ltd t/a TSW International v National Union of
Metalworkers of SA [1999] 20 ILJ 677 (LC)

Transport Motor Spares v National Union of Metalworkers of SA (1999) 20 ILJ 690

(LC).

TSI Holdings (Pty) Ltd & Others v National Union of Metalworkers of SA & others
(2004) 27 ILJ 1483 (LAC)

95
Western Platinum Ltd v National Union of Mine Workers (2002) 21 ILJ 2502 (LC)

Woolworth (Pty) Ltd v SA Commercial Catering & Allied Workers Union (2006) 27 ILJ
1234 (LC)

96
LEGISLATIONS, REPORTS AND CONVENTIONS

Employment Equity Act 5 of 1957

Freedom of Association and Protection of the Right to Organise Convention

Convention No. 87 of 1948.

ILO Constitution of the International Labour Organisation and Standing Orders of the
International Labour Conference Geneva (1998)

International Covenant on Civil and Political Rights No 16 of 1966

Labour Relations Act 66 of 1995

Right to Organise and Collective Bargaining Convention Convention No 98 of 1949.

South African Basic Condition of Employment Act No3 of 1983

The Abolition of Forced Labour Convention (1957)

The African Charter on Human and Peoples’ Rights (1981)

The American Convention on Human Rights (Pact of San José, 1969)

The Charter of Fundamental Rights of the European Union (2000) revised in (2007)

The Community Charter of the Fundamental Social Rights of Workers (1989)

The Constitution of the Republic of South Africa

The European Social Charter (1961) revised in (1996)

The Interim Constitution, 200 of 1993

The International Covenant on Civil and Political Rights (ICCPR of 1966) and

The International Covenant on Economic, Social and Cultural Rights (ICESCR of

1966)

The Universal Declaration of Human Rights (UDHR of 1948)

Wages Act No 27 of 1925

Wiehahn Commission Report Part V par 4.11.5.

THESIS
Budeli Freedom of association and trade unionism in South Africa: from Apartheid to
the democratic constitutional order (LLD Thesis, University of Cape Town 2007) 256

97
Romeyn “The need for further reform of the law relating to industrial action; Striking a
balance: the need for further reform of the law relating to industrial action” Research
Paper no. 33 2007–08 25 June 2008

Zondo Thesis on “The requirement of notice of industrial action in South African

labour law” (2009) 7 10

CONFERENCE PAPERS AND NEWSPAPERS

Brad How the law could better regulate the right to strike in South Africa Paper
presented at the 27th Annual Labour Law Conference: The changing face of Labour
Law (August 2014) 38

Chicktay 26th Annual Labour Conference Paper presented at Santon Convention

Centre on Case Updates Johannesburg (30 July – 1 August 2013) 20.

John Brand Strike Avoidance – How to develop an effective strike avoidance strategy
Paper presented at the 23rd Annual Labour Law Conference, (August 2010) 7

Kettledas “Changing SA’s labour law not the answer” 2013 (2013-7-31) Mining
weekly news 7

INTERNET

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[Link]
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January 2013)

[Link]
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standards/collective-bargaining/lang--en/[Link]. Accessed on 23 October 2014

[Link]
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[Link]

[Link]
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[Link]
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[Link] (Accessed 10-10-2014)

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