Abstract

This article explores the exercise of the right to strike by seafarers, including the process regulating its exercise, its limitations, and relevant legislative developments. The article notes that the maritime labour environment differs from most land-based regulated sectors since ships serve as both the workplace and home of seafarers while at sea. It considers whether seafarers are bearers of constitutional labour rights, including the right to strike, fair labour practices, freedom of association and collective bargaining. Under international law, the right to strike is not expressly enumerated in any ILO treaty. However, ILO decisions and ICJ jurisprudence confirm that the right to strike is implied under ILO Conventions 87 and 98. It importantly notes that seafarers are workers and fall within the protective scope of the Constitution and international law. The article then explores the right to strike in the LRA and, in particular, the MSA, read together with the domesticated MLC in its Schedule 7. The MLC guarantees the rights to freedom of association and collective bargaining which, the article argues, impliedly include the right to strike, consistent with international jurisprudence. The MSA similarly shields the exercise of the right to strike, exempting participation in strike activity from various offences, provided that strikes are prohibited aboard vessels at sea. Furthermore, the MSA also appears to prohibit strikes aboard moored ships. The article argues that these limitations are logical and accordingly acceptable. The proposed revisions under the MS Bill, which clarify the direct application of the LRA and permit strikes only when ships are safely moored at a safe berth, are also considered. The article nevertheless questions whether permitting strikes aboard moored ships is warranted given the propensity for violence in South African strikes. Nevertheless, the article welcomes the Bill’s useful clarification on the matter.