Just and equitable compensation in respect of unprotected strikes in South Africa

Abstract

This study analyzes the intersection of the Labour Relations Act (LRA) and the South African Constitution concerning the right to strike and related activities, asserting that the current legal framework inadequately addresses unlawful conduct, thereby necessitating stricter regulations to align the right to strike with constitutional rights. It critiques the 2018 amendment on advisory arbitration for violent picketing as insufficient, pointing out that violent strikes persist and unions frequently ignore court orders.

The Labour Appeal Court's interpretation of section 68(1) introduces just and equitable compensation for unlawful actions during strikes, yet it is criticized as ineffective. The research also underscores South Africa's obligations under international labour law, as violent strikes violate freedom of association principles, and discusses the impracticality of proportional penalties in cases of significant financial loss due to union-sanctioned strikes.

The rejection of proposed LRA amendments to limit union authority regarding picketing raises concerns about unions' accountability, with the study advocating for unions to be liable for negligence in managing their members' conduct during strikes. A comparative analysis with Australia and Canada reveals legislative approaches to suspending harmful strikes, suggesting South Africa could benefit from re-evaluating its approach to balancing striking rights with constitutional principles.