Claims against trade unions engaged in unprotected industrial action

Abstract

In any employment relationship there is an unequal bargaining power between an employee and an employer. The employer is the sole bearer of power as s/he has financial power over an employee. The only means by which employees can counteract this power is if they act collectively. By acting collectively the employees are placed in a bargaining position with the employer and this also gives them an opportunity to enforce their employment rights. The International Labour Organisation (hereafter referred to as ILO ) Conventions 87 and 98 of 1948 also provides that employers and employees have the right to organize and to bargain collectively. South Africa, because it is a member of the ILO, ratified the said Conventions and more specifically granted every worker with a constitutionally entrenched right to strike. This is set out in section 23 of the Constitution of South Africa No 108 of 1996 (hereafter referred to as the Constitution1996). The Labour Relations Act (hereafter referred to as the LRA ) also gives effect to this right by providing a legislative framework within which this right to strike could be exercised. This protection can only be provided if the strike complies with the substantive and procedural requirements of Chapter IV of the LRA. This includes protection against dismissal, interdicts and civil liability for losses caused by a strike. This dissertation seeks to determine what this right to strike entails and whether the current remedies are effective to curb unprotected strikes.