Reflections on the (Dys)functionality of strikes to collective bargaining: Recent developments
Authors Emma Fergus
Affiliations: Senior Lecturer, Institute of Development and Labour Law, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 3, 2016, p. 1537 – 1551
On more than one occasion in recent years, otherwise lawful strikes have turned violent. It is well known that the Labour Relations Act prohibits the institution of civil legal proceedings against employees on the basis of their participation in protected strikes or conduct in contemplation or furtherance thereof. Yet, the Act is silent on the rights of third parties and employers where strikers’ conduct becomes violent, and it does not expressly authorise the Labour Court to suspend violent strikes. In the absence of statutory provisions governing strike violence, the court in National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd recently indicated that violent strikes were ‘dysfunctional to collective bargaining’; in turn they could be interdicted. Are strikes required to be functional to collective bargaining to be lawful however, and in what circumstances may courts intervene during violent strikes? These are some of the questions which this article asks and seeks to answer. An argument is then made that strikes are inherently functional to collective bargaining, and that it is doubtful whether the lawfulness of otherwise protected strikes may be contested on the basis of their dysfunctionality. Even if functionality is a requirement though, it is one which is marred by vulnerability to manipulation by unduly interventionist courts. Thus, a more objective and constitutionally sound approach for interdicting violent strikes is tentatively proposed.