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Labour Relations Act, 1995 (Act No. 66 of 1995)

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Protest Action to Promote or Defend Socio-Economic Interests of Workers (Section 77 of the Act)

Annexures

Annexure B: Extract from ILO's Digest

 

ANNEXURE B: EXTRACT FROM ILO'S DIGEST

 

Paragraphs 520 to 544 of Chapter 10 (Right to strike) of the Digest state the following:

 

"Importance of the right to strike and its legitimate exercise

 

520. While the Committee has always regarded the right to strike as constituting a fundamental right of workers and of their organizations, it has regarded it as such only in so far as it is utilized as a means of defending their economic interests.

 

521. The Committee has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests.

 

522. The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests.

 

523. The right to strike is an intrinsic corollary to the right to organize protected by Convention No. 87.

 

524. It does not appear that making the right to call a strike the sole preserve of trade union organizations is incompatible with the standards of Convention No. 87. Workers, and especially their leaders in undertakings, should however be protected against any discrimination which might be exercised because of a strike and they should be able to form trade unions without being exposed to anti-union discrimination.

 

525. The prohibition on the calling of strikes by federations and confederations is not compatible with Convention No. 87.

 

Objective of the strike (strikes on economic and social issues, political strikes, solidarity strikes, etc.)

 

526. The occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers.

 

527. Organizations responsible for defending workers' socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers  in general, in particular as regards employment, social protection and standards of living.

 

528. Strikes of a purely political nature and strikes decided systematically long before negotiations take place do not fall within the scope of the principles of freedom of association.

 

529. While purely political strikes do not fall within the scope  of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government's economic and social policies.

 

530. In one case where a general strike against an ordinance concerning conciliation and arbitration was certainly one against the government's policy, the Committee considered that it seemed doubtful whether allegations relating to it could be dismissed at the outset on the ground that it was not in furtherance of a trade dispute, since the trade unions were in dispute with the government in its capacity as an important employer following the initiation of a measure dealing with industrial relations which, in the view of the trade unions, restricted the exercise of trade union rights.

 

531. The right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests.

 

532. The solution to a legal conflict as a result of a difference in interpretation of a legal text should be left to the competent co1,1rts. The prohibition of strikes in such a situation does not constitute a breach of freedom of association.

 

533. If strikes are prohibited while a collective agreement is in force, this restriction must be compensated for by the right to have recourse to impartial and rapid mechanisms, within which individual or collective complaints about the interpretation or application of collective agreements can be examined; this type of mechanism not only allows the inevitable difficulties which may occur regarding the interpretation or application of collective agreements to be resolved while the agreements are in force, but also has the advantage of preparing the ground for future rounds of negotiations, given that it allows problems which have arisen during the period of validity of the collective agreement in question to be identified.

 

534. A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful.

 

535. The fact that a strike is called for recognition of a union is a legitimate interest which may be defended by workers and their organizations.

 

536. A ban on strikes related to recognition disputes (for collective bargaining) is not in conformity with the principles of freedom of association.

 

537. Protest strikes in a situation where workers have for many months not been paid their salaries by the Government are legitimate trade union activities.

 

538. A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association.

 

539. Provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike; workers and their organizations  should  be able to  call for  industrial action  in support  of multi-employer contracts.

 

540. Workers and their organizations should be able to call for industrial action (strikes) in support of multi-employer contracts (collective agreements).

 

541. The Committee has stated on many occasions that strikes at the national level are legitimate in so far as they have economic and social objectives and not purely political ones; the prohibition of strikes could only be acceptable in the case of public servants exercising authority in the name of the State or of workers in essential services in the strict sense of the term, i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population.

 

542. A declaration of the illegality of a national strike protesting against the social and labour consequences of the government's economic policy and the banning of the strike constitute a serious violation of freedom of association.

 

543. As regards a general strike, the Committee has considered that strike action is one of the means of action which should be available to workers' organizations. A 24-hour general strike seeking an increase in the minimum wage, respect of collective agreements in force and a change in economic policy (to decrease prices and unemployment) is legitimate and within the normal field of activity of trade union organizations.

 

544. A general protest strike demanding that an end be brought to the hundreds of murders of trade union leaders and unionists during the past few years is a legitimate trade union activity and its prohibition therefore constitutes a serious violation of freedom of association."