Legal Strikes in South Africa

Legal Strikes in South Africa

The real issue, however, boils down to the appropriateness of restricting the right to strike. Given the recent wave of violent strikes and intimidation of non-striking workers, it remains to be clarified whether the restriction on the right to strike in section 65 of the LRA, as well as the proposed amendments to it, are really as inappropriate as they are described. In addition, the proposed amendment will reduce the number of unprotected strikes and force workers and unions to set an appropriate target for the strike and to conduct the strike as a last resort to resolve a dispute. A collective agreement is a legally binding instrument and is usually negotiated between the parties on terms and conditions of employment or other matters of mutual interest. The only formality of collective agreements is that they must be reduced to written form. The agreements shall be binding on the contracting parties and their members. The agreement can also be extended to non-union members if the party union has the majority of members in the workplace. Collective agreements take precedence over the provisions of conflicting individual employment contracts and can also be concluded in collective bargaining councils and thus serve as instruments of minimum wages and working conditions. Paragraph 65(1)(d) of the LRA prohibits strikes and lockouts in essential and maintenance services. Instead, employers and employees are obliged to submit their disputes to final and binding arbitration. The Act defines an essential service as one the interruption of which endangers the life, safety or health of all or part of the South African Nation, the Parliamentary Service and the South African Police Service.

Labour judges are generally appointed from among labour lawyers (practising lawyers or lawyers) and, in some cases, from among suitably qualified academics. Judges of the Labour Court of Appeal must also be judges of the High Court of South Africa. CCMA commissioners, unlike labour judges, do not need to have legal qualifications. There are different levels of commissioners who are appointed, and generally the chief commissioners are either legally qualified or have experience in dispute resolution. Commissioners are required to resolve or resolve disputes. Disputes are first settled and, if not resolved, referred to arbitration, usually to another commissioner. Strikes and lockouts are essential elements of collective bargaining. However, these measures should only be used as a last resort. Strikes are used by workers to support their demands to promote and defend their employment-related interests, and employers use lockouts to support their employment-related demands.

Unprotected strikes are often marked by violence, intimidation and property damage. For employers, this is a difficult time during which they suffer financial loss, reputational damage, business loss and/or property damage, among others. It is therefore not surprising that a legal mechanism to limit the scope of this right is highly controversial. The proposed amendment to section 65 of the Industrial Relations Act No. 66 of 1995 (LRA) has raised the concern of trade unions. The Labour Court`s task is to hear appeals against final judgments of the Labour Court in order to decide legal questions reserved to the Labour Court. Judges of the Labour Court of Appeal must be judges of the High Court of South Africa, while judges of the Labour Court are generally appointed from among experienced lawyers. The LRA provides strong protection against strikes and lockouts that are consistent with its provisions: our lawyers provide competent legal advice on all labour and employment law matters in accordance with all recent and relevant developments relating to the Industrial Relations Act as well as all ad hoc legislative measures in this area. Legal representation is not mandatory before labour tribunals and labour appeals, but most employers and many employees are generally represented.

Legal representation is permitted at the CCMA, except in cases of legal incapacity and misconduct where legal representation is at the discretion of the Commissioner and must be provided at the request of one or both parties. Legal representation in such cases is generally not permitted, except in the case of complex questions of fact and law, conflicting arbitral awards, or if it is in the interest of public policy that legal representation be permitted. In general, when seeking legal representation, it is preferable for the CCMA to seek the appointment of a senior member, which, if successful, usually results in legal representation of the parties. Protection against dismissal laws apply to all workers who normally work in South Africa. Therefore, the legislation also applies to workers who work partly outside South Africa and partly in South Africa and abroad. It also applies regardless of the applicable law of an employment contract or the nationality of the employee or employer. It is not possible for an employee to opt out of occupational health and safety provided for by law unless expressly permitted by law and only to the extent permitted by law. In many cases, legislation is based on codes of conduct, which may be legal codes of conduct developed by the National Economic Development and Labour Council (NEDLAC), or non-statutory codes of conduct issued by the Commission for Conciliation, Mediation and Arbitration (CCMA). Although these codes of conduct are often only guidelines and therefore do not always have direct legal effect, they are taken into account by labour courts when deciding whether or not an employer has infringed statutory labour law. In addition, there are many laws that implement health and safety regulations.

Unlike the law in other countries, collective agreements between employers and trade unions are generally legally enforceable. The Industrial Relations Act No. 66 of 1995 (“LRA”) supports the primacy of collective agreements and stresses the need for workers and organized enterprises to regulate their relations by concluding collective agreements representing the employer, union members and, if the trade union represents more than 50% of the employees of an establishment and such an intention is declared, non-unionized members in the workplace. Under the Industrial Relations Act 1995, no person may participate in a strike if he or she is considered to be an essential worker or maintenance service. If an employee who is considered an essential worker goes on strike, the strike is considered an unprotected strike. As the mining industry grew, the political power gap between whites and blacks solidified as unions that primarily catered to white workers were increasingly mobilized on the basis of race. In 1911, the Mines and Works Act was passed, which reserved various types of work only for white workers. This time was very turbulent and a series of strikes took place to secure the position of white workers in the mines. Labour law is essentially a system of rules that govern one aspect of modern society, namely the workplace.

The amendment to paragraph 65(1)(c) has far-reaching implications and is primarily intended to counter the growing number of unprotected strikes (as well as violent strikes) by further prohibiting the circumstances in which workers may strike. If it is a dispute that can be referred to arbitration or the labour court for the purposes of the LRA or any other labour law, the strike on that basis is not protected. This means expanding the list of issues where workers are no longer allowed to strike or employers are no longer allowed to lock out. South Africa has seen numerous violent strikes in recent years, which has led to proposals to avoid this, including the introduction of a secret ballot before a strike begins. There have been debates about how when strikes turn violent, they should lose their protected status. Paragraph 150(1)(b) of the Industrial Relations Act provides that the Director of the CCMA shall appoint a Commissioner to facilitate a dispute relating to strikes or lockouts where it is in the best interest of the public. The right of every employee to strike is enshrined in article 23 of the Constitution. Section 64 of the Labour Relations Act (LRA) sets out the rules for hiring employers and employees in industrial action. However, established rules are not always followed. This often happens during strikes.

In cases where the provisions of section 64 of the LRA have not been complied with, such a strike is considered unprotected. Between 1991 and 1994, the new democratic South Africa emerged. In 1994, the Interim Constitution (Act 200 of 1993) entered into force. The Act completely changed the constitutional basis of the South African legal system and it became clear that the Industrial Relations Act 1956 was not in conformity with the new constitutional order. Contact us for more information about our legal services. Section 23 of the Constitution of the Republic of South Africa gives every worker the right to strike. It also provides that every trade union, employers` association and employer has the right to bargain collectively and provides that national laws may be adopted to regulate the process.

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