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.