In terms of Section 23 of the South African Constitution the right to strike is unrestricted. Like any right in the Constitution, the right to strike is however not an absolute right. Section 36 of the Constitution allows the right to strike to be limited in terms of the law of general application. Such a limitation should, however, be reasonable.
With regards to labour disputes, substantive limitations prohibit strikes in certain circumstances. Section 213 of the Labour Relations Act (LRA) regards the action as a strike only if the following elements have been complied with:
- There must be a refusal to work.
- It must be a collective action, therefore more than 1 person must be involved in the refusal to work.
- There must be a purpose for the strike.
- The strike must be directed at a specific outcome, namely remedying a grievance, resolving a dispute or complying with or acceding to demands of employees regarding any matter of mutual interest between employer and employee.
If a strike does not comply with the substantive and procedural requirements of the LRA the strike will be regarded as unprotected. The procedural requirements can be found in Section 64 of the LRA.
In the event of an unprotected strike an employer has the following remedies:
- Obtain an interdict in order to prevent the strike action from taking place in terms of Section 68(1)(a) of the LRA.
- Claim damages and/or compensation in terms of Section 68(1)(b) of the LRA.
- Charge employees for misconduct in terms of the disciplinary code.
For purposes of this contribution, lets elaborate on point 2 above.
In the matter of Rustenburg Platinum Mines Ltd v Mouth Piece Workers Union (2002) 1 BLLR 84 (LC) the court held that when exercising his discretion, the court must establish:
- Whether the strike was indeed unprotected.
- Whether the employees or trade union participated in the incident.
- Whether the employer suffered a loss as a result of the strike.
The court further held that the employer would only be entitled to compensation which is just and equitable. What is regarded as just and equitable is calculated by weighing up the loss suffered against the nature of the conduct and the blameworthiness of the person(s) responsible for the loss.
The court further confirmed in Algoa Bus Company v SATAWU (2010) 2 BLLR 149 (LC) that if it was proven that the strike caused loss to the employer and that it was an inconvenience to the public, the employer would be entitled to be compensated for the loss.
Can a union be held accountable for the actions of its members?
As an indication of the court’s interpretation the following reported cases gives clarity:
- In Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union and others (2012) 33 ILJ 998 (LC) [also reported at  JOL 28755 (LC) – Ed] Judge van Niekerk held:
“This court must necessarily express its displeasure in the strongest possible terms against the misconduct that the individual respondents do not deny having committed, and against unions that refuse or fail to take all reasonable steps to prevent its occurrence.
- In In2Food (Pty) Ltd v Food & Allied Workers Union and others (2013) 34 ILJ 2589 (LC), Judge Steenkamp held:
“The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members.”
- In Xstrata SA (Pty) Ltd v AMCU and others (J1239/13)  ZALCJHB 58 (25 February 2014) [reported as Xstrata South Africa (Proprietary) Limited v Association of Mineworkers and Construction Union and others  JOL 33121 (LC) – Ed], Judge Tlhotlhalemaje held:
“It has become noticeable that unions are readily and easily prepared to lead employees out on any form of industrial action, whether lawful or not. The perception that a union has no obligation whatsoever to control its members during such activities, which are invariably violent in nature cannot be sustained.”
- In Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union (“AMCU”) and others , 12 BLLR 1266 (LC) Acting Judge Myburgh held:
“These judgments make it abundantly clear that, in the context of the pandemic of unprotected strike action and strike violence in South Africa, the courts are inclined to hold unions accountable for the unlawful conduct of their members and impose on them obligations to control their membership. This being a potential means of attempting to address the pandemic.”
ABOUT THE AUTHOR
Kal Louw joined SEESA in March 2009 and worked respectively at the SEESA Kimberley and Upington offices. He currently holds the position of SEESA Labour and Consumer Protection & POPI Legal Advisor at the Vredendal office.