Abstract
South African employees embarking on industrial action has a negative impact on the economy of the country, their employers and on those employees that prefer not to strike. However, with regard to the right to strike, it has been suggested that there is a need to implement fair labour practice ideologies within the collective bargain methodology. The democratic transformation from system of segregation to majority rule brought about the entrenchment of the rights of workers in the new Constitution of the Republic of South Africa, 1996.
By acting collectively, employees are afforded the opportunity and privilege of being in a position to bargain with their employers. The International Labour Organisation‟s Convention 87 and Convention 98 of 1948 provide the right to the employers and employees to organise and to bargain collectively. Therefore, industrial action can be utilised by workers as a tool to maintain a balance between labour and the power of capital.
In South Africa, statutory international law is essential to the law of industrial action. Section 39(1) (b) of the Constitution mandates the South African courts, tribunals and forums to consider international law when interpreting the rights in the Bill of Rights. Worker‟s rights to industrial action are ingrained in section 23 and are subject to limitations in terms of section 36 of the Constitution. Section 23(2) of the Constitution provides an employee the right to join a trade union of his or her choice, hence exercising the right to freedom of association provided for in section 18 of the South African Constitution.
The Labour Relations Act gives effect to the labour rights enshrined in the Constitution and to South Africa‟s international obligations implemented by the International Labour Organisation and its Conventions. The Labour Relations Act‟s objectives must be interpreted in conformity with international laws and the Constitution. Section 64 of the Labour Relations Act provides for the limitation of procedural requirements pertaining to labour relations, while section 65 of the Act provides for the limitation of its substantive requirements. One important aspect established by the Labour Relations Act is a majoritarian model in relation to trade union activities.