The prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population.
While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service essential, and thus the right to strike should be maintained.
Although some of the services set out in the agreement, such as those concerning sanitation and transport, fell outside the scope of essential services in the strict sense of the term, these restrictions on the right to strike were the result of an agreement freely entered into by the two parties. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties.
The representative organizations of workers and employers should, respectively, be able to select members of the Essential Services Arbitration Tribunal who represent them. Nor does the Committee take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial.
These restrictions on the right to strike were considered to be acceptable. The Committee therefore encouraged the Government to examine the possibility of introducing a minimum service in that sector in the event of industrial action, the scope or duration of which may result in irreversible damages.
Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; in addition, workers organizations should be able to participate in defining such a service in the same way as employers and the public authorities. Brexit Check what you need to do. Explore the topic Your rights at work and trade unions. Is this page useful? Maybe Yes this page is useful No this page is not useful.
Thank you for your feedback. Report a problem with this page. What were you doing? The effect of this is not to advance economic development in line with the purpose of the LRA. The employer is then placed under economic pressure to conclude a wage agreement at a wage level that does not reflect the forces of supply and demand, but rather the force of violence.
The relationship between the business of the employer and its customers is based on loyalty and confidence. The employer is expected to keep this relationship going by supplying goods or deliver services to clients when needed. It is expected that this would take place without disturbance. However, during strikes or conduct in furtherance of a strike, this relationship gets affected since the level of production or service delivery is reduced or does not take place.
It is well known that the continued existence of a business relies on customers' satisfaction with services or goods provided. A business that does not have customers can hardly survive as they are the backbone of the business.
If a strike is violent and takes long to resolve, this may chase away customers or clients as the possibility of not getting what they want is high if less or no production takes place. The possibility that customers could shift loyalty to other businesses doing the same business as the employer is high. The end result is that a prolonged strike has the potential of chasing away customers or clients as they may not want to associate themselves with a business environment that poses a risk to their lives.
In addition, customers may want to share solidarity with employees and refuse to associate with a business whose employees are on strike. To stop this from taking place, the employer and the union need to speed up the process of resolving their dispute through a non-violent mechanism such as a collective bargaining process. As stated above, a strike that takes an unreasonably long period to get resolved has devastating effects on the economy.
It also increases the levels of unemployment, thereby perpetuating poverty with serious effects on the lives of people. The question that arises is how to put a stop to a lengthy strike and protect the economy from shrinking with negative effects on existing jobs. The definition of "strike" lends itself any obstruction of work that is lawful. Rycroft further argues that there is an inseparable link between strikes and functional collective bargaining and justifies this on three grounds.
First, the Interim Constitution of South Africa of provided that "workers have the right to strike for the purposes of collective bargaining. And lastly, the strike must not involve misconduct. This he infers from the fact that employees engaged in misconduct can be dismissed irrespective of whether the strike is protected or not.
So if a strike is no longer functional to collective bargaining, it is bound to lose protection, and those who participate in such activities will face dismissal or an action for damages can be instituted against those responsible.
As stated above, a strike that takes an unreasonably long period of time to get resolved has devastating effects on the business, customers, economy and employment thereby perpetuating poverty which has severe effects on the lives of people.
The question that arises is how to put a stop to a strike that is taking too long to get resolved. The article argues that the introduction of interest arbitration could be used to stop strikers from continuing with violent industrial action.
Interest arbitration gives the court or similar structure the power to intervene and force the parties to find a solution to their problem. Interest arbitration gives the parties an option to agree on mechanisms that will terminate industrial action once it becomes violent or cause damage to property. This is not yet applicable in South Africa and it is submitted that the LRA needs to be amended to include a provision on interest arbitration.
In Canada, if a strike continues longer than expected with no solution forthcoming, Canadian law provides certain mechanisms for ending the dispute. Borrowing from Canada the concept of interest arbitration, South Africa will have to amend the Labour Relations Act to include such a provision. The article suggests that this will assist in reducing the number of protracted strikes and the negative impact that these strikes have on the economy. However, the introduction of interest arbitration in our labour law will not be easy and will face some challenges.
The first challenge is its compatibility with the Constitution. The fact that the introduction of interest arbitration will have the effect of bringing a strike or industrial action to an end has constitutional implications. The right to strike is entrenched in the Bill of Rights. Section 36 1 provides that "any limitation of the right in the Bill of Rights must be in terms of the 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".
Before a limitation of the right to strike or participate in the activities of a strike can be said to be justifiable the factors listed in section 36 1 a - e have to be taken into account. These factors allow the person or institution that intends to limit the right to weigh the advantages and disadvantages of limiting the right. In considering the advantages and disadvantages of limiting the right to strike, it can be taken into account that interest arbitration as prescribed by the law of general application could be sufficient to meet the situation and constitute the less restrictive means to achieve the purpose of orderly collective bargaining, generally, and of avoiding adverse effects of protracted industrial action.
The second challenge to the implementation of interest arbitration is that it might be contrary to the International Labour Organisation ILO recommendations which provide that where compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organise their activities freely and could only be justified in the public service or essential services sectors. The third challenge would be that the parties to the dispute will be reluctant to make reasonable attempts to resolve the dispute and leave it to the third party arbitrator to resolve the dispute for them.
The parties will take extreme positions without any compromises to meet each other under the hope that the arbitrator will come up with a settlement. The disadvantage of relying on a third party will thus affect the ability of the parties to negotiate productively and improve their negotiating skills. This will also have the possibility of prolonging the strike rather than shortening it as it will take time to obtain an arbitrator with the required skills.
Lastly, the concept "lengthy" strike is problematic as it is not clear what would constitute a "lengthy" strike. There is no prescribed maximum period for a strike. In the absence of a clear provision to this effect, employers could therefore, potentially approach the Labour Court prematurely. Therefore it is argued that the introduction of interest arbitration will, in the long run, not only serve the interest of the business or the employer as well as the economy, but it may also save the employees from the negative impact that may result from a protracted strike, like the possibility of retrenchments.
During a strike, the employer may consider arranging negotiations for retrenchments in terms of section 67 5 of the LRA.
This will be a signal to the employees of the devastating effects of the strike on the business. This will also give the parties a warning call to settle their dispute or find ways of ending the strike. A new development has now been ushered into the arena of labour relations in terms of section A of the Labour Relations Amendment Act.
In terms of this section, there are thus three grounds in which the action can be triggered: i if the strike is no longer functional to collective bargaining because it has continued for a protracted period of time and no resolution appears to be imminent; ii there is an imminent threat that constitutional rights that may be or are being violated by strikers or their supporters through the threat of use of violence or the threat of or damage to property; 77 or iii if the strike causes or has the imminent potential to cause or exacerbate an acute national or local crisis affecting the conditions for the normal social and economic functioning of the community or society.
The above provisions in the amended Act give the Director of the CCMA the power to try to force the parties back to the negotiating table to try and mediate the dispute. This is, however, short of being regarded as interest arbitration since no provision forces the parties to resolve their dispute.
Forcing the parties to go for arbitration will be a justifiable limitation of the right to strike since violent strikes affect the rights of innocent individuals and the economy. The Constitution provides that "everyone has the right to live in an environment that is free from all forms of violence from either public or private sources".
Compilation of decisions of the Committee on Freedom of Association. List of reports per year PDF.
0コメント