Revisiting strikes in essential services
Authors Darcy du Toit, Mario Jacobs, Roger Ron
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape; Researcher, Labour and Enterprise Policy Research Group, Faculty of Law, University of Cape Town; Researcher, Social Law Project, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2131 – 2147
Strikes and lock-outs in ‘essential’ and ‘maintenance’ services are prohibited in South Africa; disputes between workers and employers in essential services must be referred to arbitration. Despite this, strikes in essential services are far more common than arbitration proceedings. The article argues that this is not simply a legal problem but that unprotected or unlawful strike action is driven by socio-economic and historic dynamics, above all by the extreme inequality dividing South African society. It examines a number of alternative mechanisms that could be used to supplement the existing dispute resolution system, including the determination of minimum services by the Essential Services Committee. However, the question remains to what extent parties would adhere to minimum service determinations made against their will. The article argues that successful remedial measures would have to be based on an appropriate balance between workers’ right to strike and the public right of access to essential services. To achieve this, it suggests, negotiations between employers, unions, and other organisations that are genuinely representative of all relevant stakeholders, including users of essential services, would be crucial.