Compensation against trade unions in respect of unprotected strikes in South Africa

Abstract

The right to strike is one of the fundamental rights enshrined in the Constitution of the Republic of South Africa, 1996 (“the Constitution”). In this regard, section 23(2)(c) of the Constitution guarantees and protects this right. Additionally, the Constitution makes provision for the consideration of the International Labour Organisations (“ILO”) obligations. The protection of the right to strike has been reinforced and cemented through the promulgation of the Labour Relations Act 66 of 1995 (“LRA”), which, in addition to the Constitution, also regulates the right to strike. The LRA ensures that workers are able to exercise their collective power through participating in strike action. The right to strike is an indispensable appendage to the collective bargaining process. In fact, this right is primarily aimed at rectifying the fundamental inequality of bargaining power in the employment relationship, whereby the individual employer is considered as having an advantage over an individual employee. In terms of the LRA, strikes can either be protected or unprotected. The Act also provides for various remedies for aggrieved parties where employees embark on an unprotected strike. Nevertheless, South Africa remains inundated with violent and unprotected strikes. In light of this, our courts have been grappling with the question of which remedy would be most appropriate where an unprotected strike results in damage to the employer. To this end, a hefty debate has ensued as to the efficacy of compensation claims pursuant to section 68(1)(b) of the LRA. This dissertation examines the legal remedies available to aggrieved parties in cases of unprotected strikes, with particular attention given to claims for compensation against trade unions.