- Title
- Trade union liability for unprotected strike action and violence in furtherance thereof
- Creator
- Tshentu, Nolitha
- Subject
- Strikes and lockouts -- Law and legislation -- South Africa
- Subject
- Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Date Issued
- 2019
- Date
- 2019
- Type
- Thesis
- Type
- Masters
- Type
- LLM
- Identifier
- http://hdl.handle.net/10948/43743
- Identifier
- vital:37040
- Description
- The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Format
- vii, 55 leaves
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
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NMU Department of Mercantile Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | NL TSHENTU.pdf | 935 KB | Adobe Acrobat PDF | View Details Download |