Rough Draft THE SOUTH AFRICAN POSITION ON STRIKES: VIEWED FROM THE PERSPECTIVE OF HEALTH SERVICES BC D M DAVIS South Africa included in within its Constitution a detailed provision governing Labour Relations it reads as follows: (1) Everyone has the right to fair labour practices. (2) Every worker has the right (a) (b) to form and join a trade union; to participate in the activities and programmes of a trade union; and (c) to strike (3) Every employer has the right (a) (b) to form and join an employers organisation; and to participate in the activities and programmes of an employers organisation. (4) Every trade union and every employers organisation has the right (a) to determine its own administration, programmes and activities; (b) (c) to organise; and to form and join a federation. (5) Every trade union, employers organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent
2 that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1) (6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in the Chapter, the limitation must comply with section 36(1). Two particular points must be noted at this stage. The section enshrines the right to strike. Further it provides that every trade union employers organisation employer has the right to engage in collective bargaining but then goes on to provide that national legislation maybe enacted to regulate this process. More about that later. In the drafting of the Constitution international jurisprudence played a considerable role Drafters understood that article 8 of the International Convention on Economic Social and Cultural Rights recognised the right to strike as did article 6 of the European Social Charter, article of 27 of the Inter American Charter of Social Guarantees. Furthermore, the 1994 ILO document Freedom of Association and Collective Bargaining played an influence. It was known to the drafters of the constitution that the ILO Committee of Experts had interpreted freedom of association as enshrined in the ILO constitution in Convention 87 to include the right to strike. Notwithstanding this authority the right to strike was hotly contested at the stage of certification of the constitution (IN RE Certification of the Constitution RSA (1996) (4) SA 744 (CC)). In particular, the argument was raised that if a
3 right to strike was included so should there be a right to a lock out. The objection was based on the submission that by omitting the right to lock out the employers right to engage in collective bargaining was recorded less status that the right of workers engaged in collective bargaining. Furthermore, the principal of equality was raised to contend that if the right to strike was included in the constitution so should the right to lock out be so included, the submission being based on the proposition that the right of employers to lock out is a necessary equivalent of the right workers to strike. Therefore in order to treat workers and employers equally, both should be so recognised constitutionally. The Constitutional Court rejected these arguments on the following basis: 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 bargain effectively with employers. Workers exercise collective power primarily through the mechanism of strike action. In theory, employers, on the other hand, may exercise power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace (the last of these being generally called a lockout). The importance of the right to strike for workers has led to it being far more frequently entrenched in constitutions as a fundamental right than is the right to lock out. The
4 argument that tit is necessary in order to maintain equality to entrench the right to lock out once the right to strike has been included, cannot be sustained, because the right to strike and the right to lock out are not always and necessarily equivalent. (para 66) The Constitutional Court had a further opportunity of discussing the right to strike in National Union of Metal Workers of South Africa v Bader BOP (Pty) Ltd and the Minister of Labour 2003 (2) BCLR 182 (CC). In this case O Regan J said the following about the constitutional recognition of the right to strike: This case concerns the right to strike. That right is both of historical and contemporaneous significance. In the first place, it is of importance for the dignity of workers who in our constitutional order may not be treated as coerced employees. Secondly, 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. In interpreting the rights in section 23, therefore, the importance of those rights in promoting a fair working environment must be understood. It is also important to comprehend the dynamic nature of the wage-work bargain and the context within which it take place. Care must be taken to avoid setting in constitutional concrete, principles governing that bargain which may become obsolete or inappropriate as social and economic conditions change.
5 The structure of the constitutional provision was to ensure that national legislation be passed. That was affected in 1995 with the introduction of the Labour Relations Act. The Act seeks to give effect to right to strike by providing procedures and protections to strikes in the collective bargaining context and for strikes, defined as protest action in the socio-economic context. The purpose of protest action is a promotion or defense of a socioeconomic interest of workers although in the latter case the Labour Appeal Court has decided that the constitutional provision to the right to strike does not necessarily include the right to take protest action. Business of South Africa v Congress of South African Trade Unions (1997) 18 ILJ 474 (LAC). The Labour Relations Act provides an extensive framework for the exercise of the right to strike. It does however subject the right to a number of limitations, the first limitation is procedural. The strike is protected only if the procedures required are recognised by the Labour Relations Act are followed. There are differences of procedures for sub-primary and secondary strikes for disputes considering the duty to bargaining and for parties to a bargaining counsel or a collective agreement. There is a further limitation which prohibits strikes in respects of disputes on issues that are the subjects of a peace clause or are regulated by a collective agreement. It would appear that the ILO has upheld these restrictions if trade unions have the right to have disputes about the application or interpretation of collective agreements referred to impartial and timeous arbitration. A further limitation of the right is that strikes are restricted in respect of disputes that have been referred to
6 arbitration by agreement or that must be referred to arbitration or to the Labour Court in terms of the Labour Relations Act. This limitation can be illustrated again for Bader BOP case. In this case, the majority of the Labour Appeal Court which had interpreted provisions relating to organisational rights in the Labour Relations Act in such a way as to prevent unrepresentative trade unions from striking in pursuit of organisational facilities. The Constitutional Court held that there was an alternative interpretation that did not have the effect of limiting the right of unrepresentative trade unions to strike on these matters and that this interpretation ought to be preferred. In other words, the Court held that the Labour Relations Act provided the statutory right to organisational facilities but did not, in so doing, prevent unrepresentative trade unions from pursuing organisational facilities through collective bargaining and strikes, if necessary. It found that the remedies of conciliation and arbitration for the refusal of organisational rights to representative trade unions did not apply to unrepresentative trade unions. Accordingly, the limitation contained in the Act on the right to strike in respect of disputes that must be referred to arbitration or adjudication in terms of the Act did not apply to an unrepresentive trade union seeking to acquire organisational facilities outside the statutory framework provided for the representative trade union. In summary, this judgment affirmed the distinction between a rights dispute and an interest dispute and thus the prohibition of the Act of strikes in respect of rights disputes.
7 The final limitation concerns the prohibition of strikes for essential services. The Labour Relations Act defines an essential service as a service the interruption of which endangers the life and personal safety or health of the whole or any part of the population. It provides for the establishment of essential service committee to generate and list essential services by way of proclamation in the Government Gazette, to make ad hoc determinations and to ratify agreed minimum services. The final limitation concerns the prohibition of strikes in a maintenance service which is defined as a service the interruption of which, has the effect of material physical destruction to any working area plant or machinery. The Labour Relations Act provides that the essential services committee must determine whether the whole or part of an employers business is a maintenance service. A further question arises as to the relationship between the constitution and the Labour Relations Act. The Labour Relations Act provides that the Act enacted to give effect to the Constitution in general and section 23 thereof in particular. The Constitutional Court has rejected the view that the Labour Relations Act is nothing more than an extension of the constitution and therefore definitively constitutes the labour rights enshrined within section 23. In National Education Health and Allied Workers Union v The University of Cape Town and others 2003 (3) SA 1 (CC), the court held that where an Act is passed to give effect to a constitutional right, it is subject to constitutional scrutiny. The Court must ensure that more of its provisions are inconsistent
8 with any provision within the Constitution. Thus, if the constitutional validity of the Labour Relations Act is challenged, the court must first determine the extent of the constitutional right invoked in order to assess whether legislation gives effect thereto or whether legislation falls within the constitutional limits. A court interpreting the legislation must then give full effect to the legislative purpose; that is an interpretation of legislation to ensure both the protection, promotion and fulfilment of entrenched constitutional rights. If, however, the section cannot be interpreted so as to be congruent with the Constitution then the section itself must be struck down as not passing constitutional muster. However, a litigant cannot invoke the constitution directly. The litigant has to establish its cause of action in terms of the Labour Relations Act and, if dissatisfied with the particular provision of the Labour Relations Act must then challenge the provision in the manner described above.