scholarly journals Strikes in Essential Services in Kenya: The Doctors, Nurses and Clinical Officers' Strikes Revisited and Lessons from South Africa

2020 ◽  
Vol 23 ◽  
pp. 1-25
Author(s):  
Johana Kambo Gathongo ◽  
Leah Ndimurwimo
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Trade Unions ◽  
Health Care Services ◽  
Fundamental Rights ◽  
Labour Relations ◽  
Essential Services ◽  
Constitutional Right ◽  
The Right ◽  
Essential Service

The right to strike is one of the fundamental rights enshrined in the Kenyan Constitution, 2010. Any limitation to the right involves the danger of collective bargaining. The right to strike is derived from the Right to Organise and Collective Bargaining Convention, 1949 that Kenya ratified on 18 July 1951. Article 2(4) of the Constitution emphasises that any law inconsistent with it is void. The Labour Relations Act, 2007 gives effect to the constitutional right to strike but is also subject to a number of limitations. Such limitations include the prohibition of strikes for employees who are engaged in essential services. Although the limitations to the right to strike may be justified, a number of bottlenecks exists in the current scope and application of the Labour Relations Act. For example, the Labour Relations Act does not provide mechanisms in terms of which essential service employees can lawfully embark on strikes. Unlike disputes in South Africa, those about essential services in Kenya are not preceded by consensus-seeking processes such as conciliation, mediation and arbitration. Instead, essential service disputes are referred directly to the Employment and Labour Relations Court for litigation. Consequently, the rights of employees who are employed in essential services like hospitals and patients' right to access health care services can easily be violated. Due to the lacunae in the Labour Relations Act, an increase in the number of strikes in essential services has been witnessed in Kenya. This article argues that the litigation of disputes in essential services should be the option of last resort. In addition, to date, more than 11 years after the Labour Relations Act came into effect, no provisions have been incorporated or even suggested that employer and trade unions need to conclude minimum service agreements and designate employees to perform the minimum services. This article suggests that, trade unions and government can work together through adopting consultative and more inclusive approaches in order to establish an effective statutory framework that regulates the right to strike in essential services in Kenya.

scholarly journals Unionised strikes’ dynamics and economic performance: An exploratory study

2017 ◽  
Vol 14 (3) ◽  
pp. 354-363
Author(s):  
Shadrack Themba Mzangwa
Keyword(s):  
South Africa ◽  
Trade Unions ◽  
Freedom Of Association ◽  
Economic Implications ◽  
Labour Relations ◽  
Compulsory Arbitration ◽  
Essential Services ◽  
Manufacturing Sectors ◽  
Labour Contracts ◽  
The Right

Legally, the freedom of association and the formation of trade and worker unions are part of the fundamental human rights bestowed on the citizens in the Constitution of South Africa, as clearly spelt out in Section 23 and 77(1) of the Labour Relations Act (1995) for employees who are not engaged in essential services. Under the Labour Relations Act (1995), trade unions are granted the right to strike in order to seek better conditions of service. However, there is an increasing concern that the rate of industrial actions or unionised strikes are getting out of hand, especially in recent times. Theoretically and empirically, the direct costs of incessant unionised strikes are well known. In this paper, we explored the economic implications of the ever-growing rate of unionised strikes in post-apartheid South Africa. In particular, we assessed its impact on the most important economic variable, namely, real gross domestic product (GDP). We brought to light the sector that is affected most by unionised strikes in the country, the root causes and the implications for policy. Overall our assessment shows that within the space of five years (i.e. from 2009 to 2013), unionised strikes have led to approximately 10,264,775 days lost, and consequently a fall in GDP by 3.2% in 2014 compared to 3.8% in 2013. The sectors heavily affected by unionised strikes are mainly the mining and the manufacturing sectors. Low wages, unhealthy working conditions, and deficiencies in the bargaining system often emerged as the root causes of unionised strikes. The policymaker should pursue effective initiatives seriously to moderate the rate of unionised strikes in South Africa. Institutionalised means of dispute resolution should be embraced and enhanced. These should include but not be limited to ballot requirements, proper regulation of the use of replacement workers, and compulsory arbitration. Policies that spell out employer-employee mandates should be binding such that no party exploits labour contracts to the detriment of the other.

scholarly journals DETERMINING THE THRESHOLD FOR ORGANIZATIONAL RIGHTS: THE LEGAL QUAGMIRE FACING MINORITY UNIONS RESOLVED – South African Post Office v Commissioner Nowosenetz No (2013) 2 BLLR 216 (LC)

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Clarence Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Post Office ◽  
Labour Relations ◽  
Industry Level ◽  
Pluralistic Approach ◽  
The Right ◽  
Conditions Of Employment

The issue of organizational rights facing minority unions has been a quagmire since the advent of the Labour Relations Act 66 of 1995(hereinafter “the LRA”). This quagmire exists, notwithstanding the fact that the Constitution affords every trade union the right to engage in collective bargaining (s 23 of the Constitution, 1996). The acquisition of organizational rights by trade unions plays a crucial rolein as far as collective bargaining is concerned. It is through collective bargaining that unions are able to negotiate with employers regarding the terms and conditions of employment. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the industry level. Chapter III of the LRA regulates collective bargaining. Whereas this chapterostensibly promotes a pluralistic approach to organizational rights it is unequivocally biased towards majoritarianism. This is the case despite minority trade unions fulfilling an important role in the current labour system especially when it comes to the balance of powerin the employment arena. In light of the above, the legal quagmire faced by the minority unions in the quest for acquiring organisation rights in terms of the relevant provisions of the LRA is clearly illustrated by the decision in South African Post Office v Commissioner Nowosenetz No ((2013) 2 BLLR 216 (LC) (hereinafter “ the South African Post Office case”)).

scholarly journals The "Double-edged Sword" of Institutional Power: COSATU, Neo-liberalisation and the Right to Strike

2019 ◽  
Vol 10 (2) ◽  
Author(s):  
Carin Runciman
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Analytical Framework ◽  
The South ◽  
Labour Relations ◽  
Institutional Power ◽  
Power Resources ◽  
Legal Provisions ◽  
The Right

On 1 January 2019 amendments to the Labour Relations Act came into force that significantly altered and curtailed the right to protected strike action in South Africa. Internationally, the right to strike has been eroded in recent years with many countries adopting legal provisions that violate the International Labour Organization’s principles. Comparatively, the rights of South African workers to go on protected strikes remain better than many other places in the world, a reflection of the militant history of the South African labour movement. But the erosion of these rights, with the active support of the Congress of South African Trade Unions, should be a cause for concern for activists and labour scholars in South Africa and beyond. This article develops the Power Resources Approach to consider how union institutional power has entrenched neo-liberalism in South Africa. Grounding the analysis of institutional power within the analytical framework of corporatism allows this article to develop an analysis of institutional power that is attentive to class forces. This provides an avenue for understanding the “double-edged sword” of institutional power in the South African context in order to comprehend when and under what circumstances trade unions advance and defend the interests of the working class and when they defend those of capital.  KEY WORDS: labour; neo-liberalism; institutional power; corporatism; South Africa

scholarly journals The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective

2017 ◽  
Vol 16 (4) ◽  
pp. 284
Author(s):  
Johan Kruger ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Freedom Of Association ◽  
Labour Relations ◽  
Labour Standards ◽  
International Labour Standards ◽  
The Right ◽  
The Impact

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level.  It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.

scholarly journals THE RIGHT OF TRADE UNIONS TO DISCLOSURE OF INFORMATION UNDER THE LRA: BALANCING THE INTERESTS OF TRADE UNIONS AND EMPLOYERS

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
ME Manamela
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Trade Union ◽  
Trade Unions ◽  
Relevant Information ◽  
Sensitive Information ◽  
Access To Information ◽  
Disclosure Of Information ◽  
The Right ◽  
Right Of Access

Access to information promotes values of transparency, openness, and accountability that are important for a progressive constitutional democracy. Section 32(1) of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”) provides that “everyone has the right of access to information held by the state or by another person that is required for the exercise or protection of any rights”. It is submitted that the word “everyone” in this provision, includes trade unions and employees and that the words “another person” in the provision include employers. Employees and their trade unions, therefore, have the right of access to information that the employer has, which may be required for the exercise or protection of their rights. Section 32(2) of the Constitution, further provides that “legislation may be enacted to give effect to this right”. The Promotion of Access to Information Act (2 of 2000 (PAIA)) gives effect to the right of access to information in general, however, for purposes of this discussion, the Labour Relations Act (66 of 1995 (LRA)) gives effect to the right through a number of provisions; including its sections 16 and 189. While section 16 requires the employer to disclose to a representative trade union all relevant information that will enable trade union representatives to effectively perform functions, which are listed in section 14(4); section 189 regulates the disclosure of information in the context of dismissals based on operational reasons of the employer.The above is in line with the International Labour Organisation’s (ILO) Collective Bargaining Standards Recommendation 163 (1981) which provides that “measures adapted to national conditions should be taken, if necessary so that parties have access to the information required by meaningful negotiation”. Section 23(5) of the Constitution grants every trade union a right to engage in collective bargaining. This right is protected and supported through provisions mentioned above which permit trade unions to request relevant information, which is important for the effective exercise of the right. This, however, has often proved to be problematic; largely due to the fact that on the one hand, trade unions need information, while on the other hand, employers sometimes regard this as an invasion of privacy. Employers often refuse to divulge information requested by trade unions as they think that the disclosure of information will also negatively affect their bargaining power or that sensitive information may get to competitors and jeopardize their business. Business South Africa (BUSA) raised concerns regarding the right to disclosure of information in its submissions to the National Economic Development and Labour Council (NEDLAC) during the drafting of the LRA as it regarded the obligation to disclose information to trade unions as a threat and an encroachment into management prerogatives. This argument was largely based on commercial secrecy; confidentiality and that disclosure of information would impede effective decision-making.In view thereof, it is important that there be a balance between the right of trade unions to information and the employer’s duty to disclose the information. This analysis will consider the relevant provisions of the LRA that grant trade unions the right to information and employers’ duty to disclose the information, to determine the balance between the interests of trade unions and employers regarding disclosure of information. It will also look at the position in the United Kingdom (UK) in order to determine whether there are lessons to be learned for South Africa.

scholarly journals The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Relations ◽  
Essential Services ◽  
The Republic ◽  
Labour Legislation ◽  
The Right

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.    

scholarly journals The Right to Strike under the Labour Relations Act 66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA

2019 ◽  
Vol 22 ◽  
pp. 1-39
Author(s):  
Darren Cavell Subramanien ◽  
Judell L Joseph
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Employment Relationship ◽  
Labour Relations ◽  
Civil Unrest ◽  
Playing Field ◽  
Strict Interpretation ◽  
Action Collective ◽  
The Right ◽  
Do So

The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining.    

scholarly journals The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3

2017 ◽  
Vol 17 (1) ◽  
pp. 612
Author(s):  
Shamier Ebrahim
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Bargaining Process ◽  
Stare Decisis ◽  
Labour Relations ◽  
Appeal Court ◽  
Labour Practice ◽  
Northern Cape ◽  
The Right ◽  
Term Benefit

The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action). In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5] It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon. Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA. 

scholarly journals REVISITING AN OLD FRIEND: WHAT CONSTITUTES “A MATTER OF MUTUAL INTEREST” IN RELATION TO A STRIKE? A TALE OF TWO RECENT CASES Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members (2014) 35 ILJ 983 (LAC); and Vanachem Vanadium Products (Pty)

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Monray Marsellus Botha
Keyword(s):  
Collective Bargaining ◽  
Trade Unions ◽  
Key Factors ◽  
National Union ◽  
Workplace Issues ◽  
Labour Relations ◽  
Municipal Workers ◽  
Mutual Interest ◽  
The Right ◽  
Labour Disputes

The purpose of the Labour Relations Act 66 of 1995 (the LRA) is to advance economic development, social justice, labour peace and democratization of the workplace. The primary objects of the LRA, inter alia, include the following: “to provide a framework within which employees and their trade unions, employers and employer’s organisations can (i) collectively bargain to determine wages, terms and conditions of employment, and other matters of mutual interest; and (ii) formulate industrial policy”, and “to promote orderly collective bargaining [and] (ii) collective bargaining at sectoral level”. The LRA in its purpose provision also makes provision for the advancement of the effective resolution of labour disputes and employee participation in decision-making in the workplace. Central to collective bargaining is the right to strike and the recourse to lock-out, respectively available to employees and employers. The collective-bargaining system has since 2007 become increasingly adversarial as “a decline in negotiating capacity, the re-emergence of non-workplace issues negotiations, and the rise of general mistrust between the parties” as the key factors contributing to the worsening of the collective bargaining is evident. The focus on strikes, has unfortunately, not been positive, as some industries have been plagued by violent, and/or unprotected and sometimes protected strike action that carries on for long periods of time. The focus of this case note is, however, not to look at the latter categories of strikes but rather to discuss a very contentious issue related to strike action: What constitutes mutual interest with reference to strikes? Two recent cases (Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members (2014) 35 ILJ 983 (LAC); and Vanachem Vanadium Products (Pty) Ltd v National Union of Metal Workers of SA Case No J 658/14) will be evaluated against the backdrop of existing literature and case law on this issue.

scholarly journals UNDERSTANDING THE LIMITATIONS TO THE RIGHT TO STRIKE IN ESSENTIAL AND PUBLIC SERVICES IN THE SADC REGION

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Rochelle Le Roux ◽  
Tamara Cohen
Keyword(s):  
South Africa ◽  
Public Sector ◽  
Public Services ◽  
Service Employees ◽  
Public Sector Employees ◽  
Essential Services ◽  
Definition Of ◽  
The Right ◽  
International Conventions ◽  
Essential Service

The nature of the limitations to the right to strike in essential and public services in the nine sub-regional countries of Southern Africa – South Africa, Botswana, Lesotho, Namibia, Swaziland, Malawi, Mozambique, Zambia and Zimbabwe – is examined in this contribution. While all of these countries share common influences and face common challenges, there appears to be a vast disparity in the approaches taken to the right to strike in public and essential services in the region. A brief overview of the demographics and labour markets in the countries under discussion is sketched, the salient features of the ILO's approach to strike in essential and public services is highlighted, and a broad overview of the contrasting and disparate approaches to essential and public services in the region is provided. The focus is, however, on the legislative approach taken to essential service employees in South Africa. It is concluded that – with the exception of South Africa and Namibia – the limitations to the right to strike of public sector employees exceed those endorsed by international conventions, and the broad definition of essential services generally relied upon effectively results in an outright ban of public sector strikes in the sub-region.

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