Every worker has the ‘right to strike’ [s 23(2)(c) of the Constitution] but ‘strike’ is not defined.   One dictionary defines a strike as ‘a situation in which a group of workers refuse to work because they are not satisfied with their pay, working conditions, etc’.   The Labour Relations Act defines and gives effect to the right to strike.   Because strike action was decriminalised in 1996 it is incorrect to refer to ‘illegal strikes’.   Today strike action that falls within the LRA definition is either protected or unprotected.   Coercive mass industrial action by employees contrary to the LRA provisions is strictly speaking not a ‘strike’ but can result in dismissal and claims for loss or damage.

Section 213 of the LRA defines a strike as

‘the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are 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’.

In other words the essential elements of a ‘strike’ are collective action coupled with a demand made to the employer.   There are also substantive and procedural limitations on the right to strike.   These will be found in ss 64 – 68 of the LRA and require the referral of a ‘dispute’ to the CCMA for conciliation, a ‘cooling off’ period and notice to strike.

Protest action is related to ‘striking’ but the demands must be socio-economic and are only indirectly made to employers.   The intention is to require their employers to put pressure on the government, for example to provide better transport or education.

Nerine Kahn, the director of the CCMA and Ronald Bernickow, the CCMA’s national senior commissioner: operations, have reflected on the recent mass action in their article Scars remain in aftermath of farm workers’ strike first published in Business Day today.   Extracts from the article will be found further down.

Link to LAC judgment

In one of the landmark employment law judgements Mzeku v Volkswagen of SA (Pty) Ltd [2001] 8 BLLR 857 (LAC) the full court [RMM Zondo JP, DM Davis AJA & BR du Plessis AJA] clarified the meaning of ‘strike’ in the dictionary and the LRA.   In this matter the demand was actually directed at the trade union to which the strikers belonged and not at the employer.

[1]        The appellants are former employees of the first respondent.   Over the period from the  20th January 2000 to the 3rd  February 2000 certain employees of the first respondent, including the appellants,  embarked on industrial action by collectively withholding their labour [Fn: The conduct constituted a strike in its dictionary meaning, but not necessarily a strike as defined in sec 213 of the Labour Relations Act, 66 of 1995 (“the Act”).   In this judgement the term “strike” is used in its dictionary sense.   Where necessary, specific reference will be made to a “strike” as defined in the Act].

. . . .

[20]      Mr Rubin’s submission was that what the appellants did was an exercise of their legal right to strike.   He made this submission despite the fact – which is common cause – that there was no compliance by the appellants with the provisions of sec 64 of the Act.   Sec 64 provides that “(e)very employee has the right to strike —if” the conditions which are there prescribed are met.   In situations which are specified in sec 64(3) a strike may be resorted to even if the conditions set out in sec 64(1) have not been met.   None of the situations envisaged in sec 64(3) is present in this matter.

[21]      In support of his submission that the appellants had a right to strike, Mr Rubin referred to various provisions of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) with which we deal shortly, as well as to certain ILO Conventions and other writings.   It is not necessary to refer to each one of those.

. . . .

[24]      Mr Rubin submitted that the provisions of ILO Convention 87 on Freedom of Association and the Right to Organise and ILO Convention 98 on the Right to Organise and Collective Bargaining are part of our law.   He submitted that this was the effect of the provisions of sec 231(5) and 233 of the Constitution.

He submitted that the result of those conventions being part of our law is that an employer has no right to dismiss employees for participating in a strike of any nature – in other words including what the Act refers to as an unprotected strike.

The effect of this submission was that our law is that employees can go on strike without having to follow the procedures prescribed by the Act and when they do that an employer has no right to dismiss them.

. . . .

[26]      Mr Rubin’s submissions are wholly without foundation.   There is no provision in Conventions 87 and 98 to the effect that employees can resort to a strike as and when they please without following any procedures that may be laid down by national law or that national law falls foul of these conventions if it prescribes procedures that must be followed before there can be an exercise of the right to strike.

In its report ‘Freedom of Association and Collective Bargaining: Report of the Committee of Experts on the application of Conventions and Recommendations International Labour Conference’ (1994) the ILO clearly acknowledged the validity of such limitations on the right to strike.

In paragraph 170 of its Report, a requirement in national legislation of approval by a certain percentage of workers before a strike can take place is found not to be contrary to the Convention provided the method, quorum and majority required are not such as to make the exercise of the right to strike difficult or improbable.

In paragraph 171, there is a recognition that the requirement that conciliation and mediation procedures must be exhausted before a strike can be called is compatible with article 4 of Convention 98.

In paragraph 172, advance notice of a strike is found to be compatible with the Conventions.

Paragraph 176-178 of the Report also recognise that sanctions against strikers are not incompatible with the Conventions provided the sanctions are proportionate to the seriousness of the violations.

[27]      In our judgement it is a misrepresentation of the position to suggest that the ILO Conventions inevitably preclude national legislation from prescribing the type of conditions contained in the Act before there can be an exercise of the right to strike.   Indeed, if Mr Rubin’s submission was to be accepted, it would, in effect, destroy some of the most important pillars of our strike law and open the door to industrial chaos rather than legitimate regulation of our labour relations.

Our Constitution envisages a careful balance between the right to strike and the regulation thereof.

Section 23(2)(c) of the Constitution provides that every worker has the right to strike.   The right to strike must be seen as part of the process of collective bargaining.   Section 23(5) then provides that national legislation may be enacted to regulate collective bargaining.   It contemplates that such legislation may limit the right to bargain collectively but requires any such limitation to comply with the provisions of section 36(1) of the Constitution.

There was no suggestion that in so far as the provisions of the Act which prescribe certain pre-strike procedures may be said to be limitations on the right to strike, they do not comply with the requirements of sec 36(1) of the Constitution.

[28]      The Act prescribes conditions which must be met before employees can exercise their right to strike.   Such conditions are, generally speaking, justifiable in order to regulate collective bargaining.

In so far as they may be said to be limitations of the right to strike, no sound reason was advanced by Mr Rubin why they cannot be said to fall within the ambit of sec 36(1) of the Constitution.

Accordingly the position is that the Act does not confer the right to strike unless the conditions it prescribes have been met.

[29]      Furthermore the Act makes a clear distinction between a protected strike and an unprotected strike.   It sets out the effect and implications of both types of strikes in secs 67 and 68.

In sec 67 it, among other things, provides for immunity from civil liability and from dismissal for striking to anyone who engages in a protected strike or who engages in conduct in contemplation or in furtherance of a protected strike.

In sec 68 it provides that the Labour Court may grant not only an interdict against an unprotected strike and conduct in contemplation or in furtherance of an unprotected strike but it also gives the Labour Court power to order payment of compensation for any loss suffered as a result of an unprotected strike or conduct resorted to in contemplation or in furtherance of an unprotected strike.

[30]      There can be no doubt that the Act is legislation which is contemplated by sec 23(5) of the Constitution.   That being the case, it is constitutionally acceptable that the Act should regulate the right to  strike as an integral part of collective bargaining which it does by making various provisions connected with collective bargaining.

The Act regulates the right to strike by making the provisions that it makes in, among others, sections 64, 65, 67 and 68.

There is no doubt that, if the conduct of the appellants constituted a strike, it was an unprotected strike.   That means that the strike was illegitimate in terms of the Act.   

In those circumstances we are satisfied that the commissioner’s finding that the dismissal was substantively fair is not only justifiable but correct.   Accordingly the appellants’ appeal against the Court a quo’s finding in this regard falls to be dismissed.

Extracts from the article

NOW THAT the dust has mostly settled on the Western Cape farm workers’ strike, and farm owners have had to start paying a new minimum wage, it is worth taking a long hard look at what was learnt along the way and, more important, what the implications are, not just for the sustainability of South Africa’s agriculture sector, but, ultimately, for labour relations in South Africa.

These issues need to be addressed by all parties if we are to avoid future strikes and bring long-term stability to the agricultural sector, which includes maintaining employment and ensuring the viability of food producers.

Lesson one lies in the refusal by farm owners to engage with worker leaders and organisations who, although not always elected representatives of their employees, played a key role in articulating their demands, representing their interests and influencing their conduct.

. . . .

Lesson two relates to the farmers’ refusal to consider local-level mediation, but instead to submit themselves to the more formalistic and legalistic sectoral wage determination process across the board.

. . . .

Lesson three relates to the fact that, once organised agriculture locked itself into the sectoral determination process, it was unable to direct or influence the determination in a meaningful way.

. . . .

Lesson four relates to the fact that, in SA today, labour disputes are rarely confined to workers or to workplace issues.

. . . .

In conclusion, it would be dangerous — provocative, even — to hold a mirror up to De Doorns and see Marikana.

. . . .

The lessons to be learnt include the complexities of dealing with new, dynamic power relationships between unions, workers and/or worker committees, management and other interest groups, as well as conflicted individuals, who become influential in times when leadership is being sought; the effect of public pressure when there is a deadlock in negotiations; and, crucially, the danger of ignoring the broader social conditions that affect workers and their families.

The Cape winelands “survived” the farm workers’ strike.

But the depth of the scars caused by this dispute remain to be seen.