Strikes in South Africa is only in theory the peaceful withholding of the supply of labour. The thing with power is once you exercise it, your only alternative is to use more. Hence our labour relations case files are marred by many incidents of violence and damage to property.
Essential Service and the Right to Strike
Our Constitution echoes the International Labour Organisation adage that without the right to strike, any collective bargaining becomes collective begging. This is enshrined in Section 27 of the South African Constitution where the right to strike for the purpose of collective bargaining is specifically provided for.
The predicament of any essential service is what to provide for in its stead, if strikes were not to be allowed.
The very powerful weapon of interest arbitration is provided for in the arsenal of union options. In essence the wage negotiations and other substantive issues are then left to a third party to determine through a process of arbitration. Bear in mind that any party may refer such dispute for determination without the consent of the other.
The Labour Relations Act, 66 of 1995 (LRA) already provides for limitations on the right to strike for employees employed in an essential service. The matter must be referred to Conciliation and if unresolved to compulsory Arbitration.
Various Government Departments have already been declared as an essential service. It is noteworthy that the service is determined to be essential and not the Department or Business Unit.
Essential Services Defined
‘Essential service’ is defined in section 213 of the LRA to mean inter alia a service the interruption of which endangers the life, personal safety or health of any part of the population. Section 65(1)(d) of the LRA places a limit on the right of people engaged in such services to strike.
Designated Essential Services
Over a number of years the Essential Services Commission (ESC) and has classified a number of services to be essential and as such published such in the Government Gazette. Little room is left for doubt weather a service is determined to be essential.
Interestingly enough, very few privately funded institutions have applied to be classified as an essential service and although nursing and old age homes funded by the State are, similar private institutions are not and is subject to an application.
We recently assisted a client who has an application to the ESC pending to successfully interdict a union from striking pending the finalization of the process of investigation and classifying a service as essential.