Bypassing unions during collective bargaining and the right to freedom of expression

Authors Mlungisi Ernest Tenza

ISSN: 1996-2185
Affiliations: Lecturer, School of Law, University of KwaZulu-Natal
Source: South African Mercantile Law Journal, Volume 29 Issue 1, 2017, p. 66 – 94


The question of whether an employer can directly address striking employees about the outcome of negotiations is a concern to labour unions. This is because unions consider this conduct as constituting an unreasonable limitation of the right to freedom of association and collective bargaining. On the other hand, employers view any attempt to prohibit them from communicating directly with workers as an unjustifiable limitation of their right to freedom of expression. The argument continues to say that South Africa’s industrial sector is currently experiencing violent strikes. If employers could be allowed to bypass trade unions and directly address employees on strike, the workers will be divided as some will accept the revised offer, while others will not. Those workers that accept the offer will return to work as the reason for their strike would have ended. However, when workers offer their services while others are on strike, friction arises and consequently violence erupts. Allowing employers to communicate directly with striking employees fuels tension among workers and does not serve the purpose of the Labour Relations Act1 (LRA), namely the advancement of labour peace and the democratisation of the workplace.