RSK 424 thesis

The role and effect of
collective bargaining and
industrial action in the
modern labour relations
Tebogo Rakhongoana
6/6/2014
Dissertation submitted for partial fulfilment of the requirements for the degree Baccalaureus
Legum (LL.B) at the University of the Free State
Study Leader: Mr Q Cilliers
Module: RSK 424 (Thesis)

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TABLE OF CONTENTS
CHAPTER 1: Introduction
1.1 Introduction 2
1.2 Research statement 2
1.3 Research methodology 5
1.4 Chapter outline 5
CHAPTER 2: History
2.1 Historical development of collective bargaining in South Africa: 1924-1994….6
2.2 Historical development of industrial action in South Africa…… 8
CHAPTER 3: Collective bargaining process in South Africa
3.1 Duty to bargain and recognition……. 10
3.2 Organisational rights…. 11
3.3 Collective bargaining structures and levels 13
CHAPTER 4: Comparative trends in collective bargaining and industrial action
4.1 Collective bargaining and industrial action trends in Europe 16
4.2 Legal dimensions of industrial action 18
4.3 Limitation on the right to strike and lockdown 19
4.4 Trade unions as complex bargaining organisations 21
5. CONCLUSION 22
Bibliography 23

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CHAPTER 1
INRODUCTION
1.1 Introduction
The current labour dispute in the platinum industry which has just ended after five
months has had a negative influence on the South African economy because losses
at the mines will result in the Treasury getting less company tax, which would stretch
the budget deficit.1Collective bargaining between the employers, unions and the
government has not been successful since these parties have not reached an
amicable agreement to solve this conundrum. Finally these parties reached an
agreement which one would say is a step in the right direction towards bringing back
dignity to the working class.
Ratings agencies Fitch, and Standard & Poor's, in its review of the South African
economy has dropped according toBarclays Capital, with slowing growth, wide
budget deficits, rising service delivery protests, and continued labour market
dysfunction.2These downgrades would mean that the state and state-owned
companies would pay more to fund massive capital projects.
There is conflict between striking and non-striking mine workers particularly in the
platinum industry with the no work, no pay policy affecting both parties similarly even
though the right to strike is a constitutionally entrenched right.3This paper will focus
on the role and effect of collective bargaining and industrial action in modern labour
relations. To adequately understand this topic we have to break it up.
Collective bargaining is an adversarial process, involving employers, unions and the
government with conflicting interests in seeking mutually acceptable compromise in
the attempt to reach an agreement on wage and conditions of service for the
employees. If the agreement is reached, the contents are recorded in a collective
agreement, which binds the parties until the next round of bargaining.4 The term is
1 Strydom 2014. http://www.mg.co.za/miningtalkscollapse Accessed on 10/06/2014.
2 Strydom 2014. http://www.mg.co.za/miningtalkscollapse Accessed on 10/06/2014.
3 Constitution of the Republic of South Africa: Sec 23(2)(c).
4 Anstey et al 2011:47.

4
said to have been coined in 1891 by the British labour-movement pioneer, Beatrice
Webb.5Under the Labour Relations Act6, the chief agents of collective bargaining are
employers, either acting individually or grouped into employers’ organisations, on the
one hand and registered trade unions on the other.7
Industrial action is a term linked to collective bargaining; it is both controversial and
necessary in the modern labour relations. It is controversial in that it is the
crucialmaterialization of conflict within the workplace which causes disruptions to
economic activity. It is essential, because without industrial action and in particular
strike action there can be no significantcollective bargaining, or any means of
balancing the power relationship.8
When parties are engaged in the process of collective bargaining and cannot reach
mutually beneficial agreement, industrial action is often the end result. Employees
will choose a collective action to reinforce their demands. This involves them
withholding the supply of labour for a predetermined period of time, also referred to
as strike action.
Strike action has been a common occurrence in South Africa particularly with the
strike season in full swing at the moment. At closer examination it is clear that the
number of strikes have decreased in comparison to the past.9 They are different
types of strike action namely; go-slows, work-to-rule, work-ins (sit-ins) and lastly
lockout which will all be explained in greater detail later.
The last component of the topic is the modern labour relations which is a complex,
intricate, comprehensive discipline that is characterised by a number of significant
features. Labour relations can be defined as: - “The area of study and practice of the
roles of and the interactions between the parties to the labour relationship, various
rules and regulations which govern that relationship, and the environment in which
the relationship plays out.”10
5 Potter B 1891.
6 Labour Relations Act 66/1995.
7 Anstey et al 2011:47.
8 Venter and Levy 2009:498.
9 Levy et al 2009:501.
10 Levy et al 2009:4.

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1.2 Researchstatement
The current research will investigate and establish the role and effect of collective
bargaining and industrial action in the modern labour relation with specific focus on
the role of trade unions.
As a secondary concern is whether collective bargaining is applied efficiently and
procedurally by all the parties concerned in South Africa and other European
countries such as England and Australia.
1.3 Research methodology
A legal comparative study will be conducted by analysis of several textual sources,
including academic articles, academic textbooks, case law, internet sources, law
commission reports, newspaper articles and postgraduate dissertations.
1.4 Chapter outline
Chapter two will contain the historical developments of collective bargaining and
industrial action in South Africa, different tables and graphs will be included for
further illustration
In chapter three, collective bargaining trends in South Africa and other European
countries will be discussed with the aid of tables, graphs and figures.
In chapter four trade unions in SouthAfrica will be analysed and it will be ascertained
whether they abuse their constitutional right to strike.11
Finally in the last chapter, conclusions will be drawn following the above discussions
and recommendations will be offered to improve the level and quality of collective
bargaining and industrial action in the modern labour relations.
11 Constitution of the Republic of South Africa:Sec 23(2)(c).

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CHAPTER 2
2.1 Historicaldevelopmentof collective bargaining in South Africa:
1924-1994
South Africa’s current collective bargaining system originates from the Industrial
Conciliation Act12 which is the cornerstone legislation which made provision for the
development and establishment of the industrial council. The industrial council is the
foundation of centralised collective bargaining institution. In 1995 the name changed
from collective bargaining institution to bargaining council.13
From 1924-1979 the industrial councils did not allow African who were and has
always been the majority workers to take part in centralised collective bargaining.
This injustice was done by not allowing these workers to be part of a registered trade
union or even to form their own trade union. The only union they were allowed to be
part of was the industrial councils.14
The black trade unions that emerged in the 1950’s were not effective in protecting
African employees’ rights because the National Party government did not recognise
them as they were not allow to formally register.15During the 1960’s the South
African economy benefited from a post-war boom with the economy growing rapidly.
This growth over-rode the concerns about the continued segmentation of the labour
market.16During this growth there was the emergence of large manufacturing
corporations with vast factories. This meant that for the first time in South Africa’s
history a large group of African labourers were working together in these factories
this aided in them organising their own trade unions.
In the 1970’s more and more black trade unions emerged that were more organised
and managed. These trade unions were operating against grain and faced a lot of
opposition from both employers and thestate not recognise them. After the Soweto
uprising in 1976 South Africa received a lot of attention internationally. More
12 Industrial Conciliation Act 11/1924.
13 Maree 2011:13.
14 Godfrey 1992:11.
15 Maree 2011:13.
16 Theron et al 2010:53.

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pressure was put on the apartheid National Party government with the help of the
recommendations of the Wiehahn Reform Commission and in 1979 this government
recognised and registered black trade unions.17
After the Wiehahn Commission reforms in the 1980’s there was a significant growth
the union movement.18Black trade unions were recognised by employers and were
allowed to play a part in industrial councils. These trade unions radically shifted the
power relations in negotiations and bought a new dynamic in collective bargaining in
South Africa.19
During the CODESA negotiations in the late 1980’s and early 1990’s between the
National Party and then official opposition the African National Congress major
changes took place in the labour market.
In 1994 the 1st democratic national election took place where the African National
Congress a black political party won and Nelson Mandela was elected as the 1st
black president of the new South Africa. This political transformation brought
progressive change to the application of collective bargaining.
This new government swiftly passed new labour legislation which benefited the
employers, employees and the state. In 1995 the Labour Relation Act20 the focus of
collective bargaining, this piece of legislation extended full collective bargaining
rights to all sectors of the economy and changed industrial council to bargaining
council as we know it presently.21 The duty to bargain was not imposed on the
different parties but trade union organisation rights in the workplace were
strengthened by the Labour Relation Act.22
Table 1
Employment, Trade Union Membership and Density 1979-1996
Year Private-
Employment(non-
agriculture)
Trade Union
Membership
Density (percentage
%)
1979 4 560 868 701 758 15.4
17 Theron et al 2010:54.
18 Godfrey et al 2010:60.
19 Maree 2010:13.
21 Maree 2010:13.

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1983 4 839 555 1 273 890 26.3
1991 5 191 773 2 718 970 52.3
1996 5 238 839 3 016 933 57.5
Note: 1 Employment excludes public service, military and police, agriculture and domestic
workers, thus excluding sectors that have a poor union representation. Trade union
density is unrealistically high with the exception of public service unions whose
densities have become very high since 1995.
Note: 2 Employment and trade union membership include all workers African, coloured,
Indian and white.23
2.2 Historical development of industrialaction in South Africa
Historically labour relations in South Africa has seen the emergence and
improvement of the use of industrial action in the workplace as well as a across the
board jurisprudence surrounding it. In order to fully understand the nature of strike
action it is very important to examine this history.24
In the early 1970’s in Natal today known as Kwa-Zulu Natal the textile and sugar
industries were hit by massive strike action. The strikes focussed on management of
the industrial relationship which was very one sided benefiting the employers and
also how the then state led by the National Party responded.25
During this time black led trade unions were not actually recognised as legitimate
vehicles for expression of black aspirations in the workplace. Surprisingly the
collective industrial bodies were also seen as a threat to economic pillar of apartheid
because there were political involvements. In 1973 the government passed the
Bantu Labour Relations Regulation Amendment Act26 which provided an alternative
channel for black representation in workplaces, through bodies called Liaison
Committees.27These committees were ineffective since they dealt with trivial issues
and there were still no provision for the right to strike. Sanctions were having a
positive effect on the National party government and a parliamentary commission,
Wiehahn Commission of enquiry was set up and instructed to examine and suggest
23 Maree 2010:14.
24 Venter et al 2009:499.
25 Levy et al 2009:499.
26 Bantu Labour Relations Regulation Amendment Act 1973.
27 Levy et al 2009:500.

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the revamp of the entire body of labour legislation and the organisation African
workers in different trade unions.28
This organisation was tasked with changing the political atmosphere in South Africa
with ultimate goal of ending apartheid labour laws. The implementation of the Labour
Relations Act29 which legitimised the right to strike by employees saw an increase
the number of African led trade unions.
The way industrial action was applied changed since notice or warning had to be
given to the employer before employees can go on strike action. If this important
requirement was not applied the action of the employees was deemed to be unfair.
This was apparent in cases decided the Industrial Court today known as the Labour
Court.
The Industrial Court played a very important role in the procedural requirements for
protected industrial action in South Africa. To understand this principle of prior notice
which was needed to be given before industrial action could be applied we have to
look at case law.
In the case of Metal and Allied Workers Union v BCR Sarmcol30 the court referred to
the action of the trade union before and after strike also the actions after the
dismissal of employees who participated in the strike action. In another case; BAWU
and others v Palm Beach Hotel31 the court held that even if the strike could have
been legal the union and its members acted unreasonable and unfair by not giving
the employer sufficient notice of the intention to strike. The court regarded this as a
serious infringement because the actions of the union and its members
inconvenienced the guests of the hotel. They were more cases with similar outcomes
and the Labour Relations Act 66 of 1995 took this as a foundation.
30 Metal and Allied Workers Union v BCR Sarmcol (1987) 8 ILJ 815 (IC).
31 BAWU and others v Palm Beach Hotel (1988) 9 ILJ 1016 (IC).

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CHAPTER3
3. Collective bargaining process in South Africa
3.1 Duty to bargainand recognition
The South African law does not enforce any duty to bargain, but the Labour
Relations Act32 promotes good faith bargaining through the creation of an
institutional framework. The LRA33 provides for the establishment of bargaining
councils and statutory council and for the conclusion of collective agreements.34
Refusal to bargain can effect in power play in order to convince the other party to
negotiate. Section 64 makes it compulsory to obtain an advisory award from the
Commission of Conciliation Mediation and Arbitration (CCMA) before notice of strike
is given. The role of the CCMA in this instance is to promote collective bargaining by
facilitating an agreement between the disputing parties, but it cannot order parties on
what to do voluntarism is very important in this process.35
Although an advisory award is not binding, it seems that it will not be ignored if it
imposes a duty to negotiate. The refusal by an employer to bargain with a trade
union constitutes legitimate ground for a strike action. Section 64(2) of the LRA36
describes the refusal to bargain as:
 A refusal to recognise a union as a collective bargaining agent;
 A refusal to establish a bargaining council;
 The withdrawal of recognition of a collective bargaining agent;
 The resignation of a party from a bargaining council and
 Disputes concerning appropriate bargaining units, levels and topics.
Recognition of a union is the beginning of collective bargaining. Under the Labour
Relations Act37 the Industrial Court appreciated employers to deal with and to accord
rights to unions. This decision of the Industrial Court were in conflict; some required
a employer only to bargain with a majority trade union, some compelled the
employer to negotiate with any union in its organisation, the majority of decisions
35 Du Plessis and Fouche 2006:230.

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forced a duty to bargain once a union had sufficient representation.38 The Labour
Relations Act of 199539 removed this uncertainty; an employer is now obliged to
accord rights of recognition only to registered trade unions which are representative.
Representation has three connotations:
 Only a registered union which is sufficiently representative of employees at a particular
workplace may demand organisational rights, such as access to the workplace, stop-order
facilities leave during office hours for its office bearers. Sufficient representation is not
defined, but the spirit of the Act indicates that a union with sufficient membership base will be
considered a sufficiently representative union. The Industrial Court, under the old Act, sought
a membership of approximately 30% to constitute sufficient representation. In term of the
1995 Act the concept sufficient representation has been considered mostly in the context of
organisational rights and from these judgements it appears that a membership in the region of
30% will in the majority of cases be considered sufficiently. Two or more unions may act
jointly in order to establish sufficient representation.
 Majority indicates a clear majority of union members in the workplace, which is 50% plus one
of the employees, have joined the union. Only registered unions with majority support in the
workplace will be able to demand statutory rights with regard to agency shop, closed shop
and workplace forum arrangements. Two or more unions may join to establish majority
support in order to be accorded these rights. Furthermore, rights to disclosure of information,
to appoint workplace representatives and to paid leave for representative are enjoyed only by
a majority union.
 A registered union wishing to establish a statutory council must have a membership of at least
30% in the relevant industry. Two or more unions may join together for this purpose. The 30%
membership is used only in the context of statutory councils.
3.2 Organisationalrights
Organisational rights are described in Part A of Chapter 3 of the Labour Relations
Act40. These rights apply to a majority registered trade unions only while sufficiently
representative registered unions will make use of some of these rights. Nonetheless
an employer and a union may conclude a collective agreement to regulate
organisational rights.41
These organisational rights are found in the following sections of the LRA; section
12, 13, 14, 15 and 16. Section 12 allows any trade union office-bearer or official
access to workplace to recruit, communicate and have meetings outside working
hours with employers. Section 13 allows trade union members to consent so that
employer can deduct trade union subscriptions or levies from their wages and to pay
these directly to the trade union.

12
Section 14 allows trade unions the right to have their shop stewards recognised.
Shop stewards function is to represent members in disciplinary and grievance
proceedings and check employer’s compliance with labour legislation and collective
agreements.42
Section 15 enables employees who are also trade union officers’ reasonable leave
from work to perform their tasks of trade union. Section 16 entitles trade unions
access to information for purpose of collective bargaining and also to perform their
functions.43
It is important to note that the rights awarded by section 12, 13, and 15 are only
applied to trade unions that are sufficiently representative of the employees
employed in the workplace (section 213 of the LRA).
In order to implement all these organisational rights the unions must be
representative and must follow section 21(exercise of organisational rights) together
with section 65(2) of the LRA.44In terms of section 21 the union must notify the
employer of theorganisational rights that it seeks. The parties must then meet and
attempt toreach a collective agreement in respect of these rights. If an agreement
cannot be reached then the dispute will be referred to the Commission
forConciliation, Mediation and Arbitration (CCMA), which will attempt to resolve the
dispute through conciliation.45
If conciliation fails the parties have a choice between referring the matter for
arbitration in terms of section 21or employees can embark on a strike action in terms
of section 65(2). If union chose the latter option it has to wait for a period of 12
months from date on which strike notice was issued in terms of section 64(1) of the
Act.
The LRA does not allow provisions regulating non-representative trade unions that
want to obtain the above organisational rights. In the case of Numsa v Bader Bop
(Pty) Ltd46minority unionswere given the right to strike for the purpose of acquiring
organisationalrights. This judgement was heavily criticised since it failed to apply
International Labour Organisation (ILO) standards correctly.
42 Chicktay 2007:159.
43 Chicktay 2007:159.
44 Chicktay 2007:160.
45 Chicktay 2007:160.
46 Numsa v Bader Bop (Pty) Ltd 2003 2 BCLR (CC).

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3.3 Collective bargainingstructures and levels
Collective bargaining structures are divided in three councils which is a bargaining
council, statutory council and workplace forums. The bargaining council main
function is the conclusion of collective agreements. It also has a piece keeping
function to keep parties in check while negotiations such as dispute resolution
procedures and application of certain organisational rights.
When parties conclude a collective agreement, this agreement takes precedence
over the provisions of the Act. A collective agreement concluded in bargaining
council binds:
 The parties to the bargaining council who are also parties to the collective agreement;
 Each party to and the members of every other party to the collective agreement in so far as
the provisions thereof apply to the relationship between such a party and the members of the
other party.
 The members of the union who is party to the agreement and the employers who are
members of an employer’s organisation who is such a party, if the agreement regulates
conditions of employment or the conduct of employers in relation to their employees or vice
versa.47
The statutory council’s main function is the resolution of disputes within its area of
jurisdiction. These include the establishment of training, education schemes and
administration of pension, provident, medical aid, sick pay, holiday and
unemployment schemes. Collective agreements are concluded to deal with these
issues. Some of these agreements may be extended to include non- parties.48
Lastly are the workplace forms which operate as consultative bodies rather than
negotiating ones. The LRA require an employer to consult in-depth with such a forum
over a wide range matters. Section 86 goes beyond in that it requires an employer to
consult with the forum with regards to any agreement on issues such as affirmative
action and disciplinary procedure policies. If a disagreement is reached the matter
must be arbitrated which amounts to a limited duty to bargain.49
Bargaining level refers to whether bargaining takes place between unions and
individual employees at plant or centralised bargaining or between one or between
one or more unions and a group of employers from a particular industry or
47 Section 31.

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occupation.50 The difference between centralised and decentralised bargaining is
that that the former is bargaining at industry and national level between employer
organisation and several trade unions federation and the latter is bargaining at plant
level between individual employers and trade unions.51
The benefit of centralised bargaining is that employers in the industry will pay similar
wages and grants and also in the same condition of service, this pushes employers
in the entire industry to stand or fall together. It is common knowledge that
centralised bargaining tends to favour big organisations and more organised trade
unions such as Congress of South African Trade Unions (COSATU).52
Courts have rejected to compel bargaining at certain level and, unless bargaining at
a particular level will result indiscrimination or unfairness. The parties amongst
themselves will have to determine the levels of bargaining through an agreement.53
In the SACCAWU v Elite Industrial Cleaning (Pty) Ltd (CCMA 1997) the union based
its claim for plant level bargaining on the allegation that it represented only 148 out of
a possible 615 employees. Evidence supported this that the cleaning industry
regulated wages and working conditions through a centralised bargaining forum.54
Table 2
Advantages and disadvantagesof the differentlevels of bargaining
Advantages Disadvantages
Centralised bargaining  Improved, cost-
effective benefits due
to a more wide-scale
application
 Training more cost
effective because it is
broad based.
 Dilution of individual
employer’s power
 Uniform application of
employment
standards.
 Less flexible
 Wages established at
a minimum level
 Smaller organisations
maybe marginalised
 Interests of select
groups tend to be
underrepresented.
Decentralised bargaining  Wages tend to
accommodate
 More costly to
implement training
50 Bendix 2010:74.
52 Bendix 2010:75.

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theeconomic realities
of individual
organisations
 Benefits are adapted
to the particular
needs of the
individual
organisation
 More flexible
 Unions and
employers are
encouraged to more
actively engage in
dialogue and redress
issues impacting on
particular workplaces.
interventions on a
smaller, more limited
scale
 Less uniform
application of
employment
standards
 Focus may become
too narrow and
limited-broader
economic objectives
are not accounted for.
Source: Adapted from Bendix 2010:76.
CHAPTER4
4. Comparativetrendsin collective bargaining and industrialaction
In this section of the paper comparative trends of collective bargaining and industrial
action in Europe will be discussed and how they relate to the South-African labour
relation.
4.1 Collective bargainingand industrialaction trends in Europe
We look at research complied by Schulten a European scholar which starts from
1990 till 2004. This research includes 26 countries most of which are in the
European Union (EU). The differences are clearly shown and trends are analysed.55
There is a distinction between two groups of countries those that were old EU
members and those who are the current EU members. The former countries have
strong multi-employer bargaining systems, sectoral, intersectoral bargaining and a
high bargaining coverage. The former are the new EU members and the UK with
55 Maree 2011:23.

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weak bargaining institution in which the employer was the dominant bargaining level
bargaining coverage was very low in this group.56
Table 3
Coverage by level of bargaining: Europe 2004
Country Collective bargaining coverage
Intersectoral bargaining dominant
Belgium >90%
Finland 90%
Ireland >40%
Slovenia <100%
Sectoral bargaining dominant
Austria 98%-99%
Bulgaria 25%-30%
Denmark 77%
Germany 70%
Greece 60%-70%
Italy 90%
Netherlands 80%
Norway 70%-77%
Spain 80%
Slovakia 40%
Sweden >90%
No bargaining level dominant
France 90%
Company bargaining dominant
Cyprus 27%
Czech Republic 25%-30%
Estonia 20%-30%
Hungary 40%
Latvia 10%-20%
Lithuania 10%
Malta 50%
Poland 40%
Romania no data
United Kingdom<40%
Source: Schulten 2005:11.
They were giant differences in collective bargaining across Europe, with a clear
relationship between dominant and the coverage level of bargaining. From the table
above we can see that where sectoral level bargaining was dominant, the median
coverage was 77%. The Netherlands and Spain it was about 80% slightly different
from Italy and Sweden which is 90%.57 Intersectoral bargaining the median coverage
from above is 90%, Ireland being the odd country with coverage of 44%. Where
56 Maree 2011:24.
57 Maree 2011:24.

17
company level bargaining was central, the median coverage was just 27% which is
very low. It was uncertain with France because there was no clear dominant
bargaining level because it had a bargaining coverage of round about 90% very
high.58
Most of these European Union countries had an interaction between various
bargaining levels. It was prevalent in the countries that where intersectoral principal.
Complementary bargaining at company level was common among these countries;
this was accompanied by a hierarchy in the bargaining levels where standards
determined at higher levels could only be improved on lower levels.59
The collective bargaining situation in Europe according to Schulten found from the
year 2005.Next the changes which took place since 1990 which include social
pressures. Decentralisation of collective bargaining in most of these European
countries was common occurrence with a dominance of sectoral or intersectoral
bargaining.60
Countries including Austria, Denmark, Finland, Germany, Italy, Netherlands, Norway
and Sweden had high level agreement broadened their scope for additional
bargaining at company level. These high level agreements led to the surfacing of
flexible and differentiated multilevel bargaining systems which also had an effect on
wages.61
Spain was the only country with an exception to these trends. As a result of reforms
of the previously highly disjointed bargaining system which strengthened the sectoral
bargaining centralisation of collective bargaining took place.
Bargaining coverage stayed relatively stable in eleven countries with the majority
using a centralised bargaining system. In seven countries, three used sectoral
bargaining coverage decreased. Spain was the only country which coverage
increased.62
58 Schulten 2005:11.
59 Maree 2011:24.
60 Maree 2011:24.
61 Maree 2011:24.
62 Schulten 2005:16.

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Trade Union membership in Spain had increased with two of the biggest union
confederations membership increasing by 275 000 members.63 In summary it was
found that the trend in collective bargaining in Europe had moved towards
decentralisation of the bargaining level which resulted in the stabilisation or the
reduction in the coverage. It was also established that there was a relationship
between the level of collective bargaining and the extent of bargaining coverage.64
4.2 The legaldimensionsof industrialaction
Section 213 of the Labour Relations Act of 1995 defines a strike as: “the partial or
complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or
have been employed by the same employer or by different employers, for the purpose of remedying a
grievance or solving a dispute in respect of any matter of mutual interest between employer and
employer and every reference to work in this definition includes overtime work, whether it is voluntary
or compulsory.”
This definition can be divided into three components. The 1st is that a strike must
constitute either a complete cessation of work or retardation of the work process,
therefore incorporating go-slows, work-to-rule and sit-ins. Secondlythis action must
be concerted meaning that a cessation or retardation of work by an individual does
not form strike action. Lastly strike action can only be taken up in continuance of a
demand which includes collective bargaining.65
The Labour Relations Act of 1995 brought essential changes to the South African
law on strikes, most important the clarification to the position of overtime bans and
whether refusal to work voluntarily or contractual overtime represents strike action.
The Labour Relations Act of 1956 didn’t have a formal definition of overtime bans
constituted a strike, which left interpretation to the courts.66 The general consensus
was that refusal to work overtime was contractually stipulated in a contract of
employment amounted to strike under the Labour Relations Act of 1956. This
position was supported in NUMSA and others v Gearmax.67 The Labour Relations
Act of 1995 has clarified the grey areas when it comes to overtime bans. It now
includes both forms of overtime bans, whether voluntary or compulsory, in its formal
63 Fulton 2011.
64 Maree 2011:25.
67 (Pty) Ltd (1991) 12 ILJ 778 (A).

19
definition of strikes. Therefore, employees who refuse to work overtime of any
description will be deemed to be on strike.68
4.3 Limitation on the rightto strike and lockouts
Section 23(2)(c)69 makes specific provision for the right to strike, no right in the
Constitution can be regarded as an absolute right. Section 36(1) of the Constitution
discusses the general limitations clause which states:
The rights in Bill Rights may be limited only in terms of law of general application to the extent that
the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality, and freedom, taking into account all relevant factors including:
 The nature of the right
 The importance of the right
 The nature and the extent of the limitation
 The relationship between the limitation and its purpose, and
 Less restrictive means to achieve the purpose.
The courts must ensure that several elements are satisfied before a right can be
limited when apply the limitation clause. Firstly the right must be limited by a law of
general application. The right to strike as stated in section 23 of the Constitution is to
be controlled by limitations; a law of general application would have to meet the
necessary requirements. This requirement is included in the Labour Relations Act of
1995, which constitutes a law of general application in the form of a statute.70
Section 64 and 65 of the Labour Relations Act of 1995 give the necessary limitations
on the right to strike. Section 64 provides procedural limitations, while section 65
provides substantive limitations. In terms of section 65 no strikes or lockouts are
permitted in the following circumstances:
 Where persons are bound by either collective agreements prohibiting strikes or lockouts over
issues in dispute or by an agreement requiring that the issue in dispute be referred to
arbitration.
 Where persons are engaged in an essential or maintenance service, or
 Where the issue in dispute is one that the person has the right to refer to arbitration or the
Labour Court in terms of the Act.
69 Constitution of the Republic of South Africa.

20
Section 65(2)71 allows strikes or lockouts where the issue in dispute relate relates to
trade union access to the workplace, deduction of trade union subscriptions and
levies, trade union representatives, or leave for trade union activities. In this
instance, however, the union giving notice of the planned strike action waives its
right to refer the dispute to arbitration for a period of 12 months after giving notice of
intention to strike, thus ensuring that strike action is used only as a last resort.72
If the strike does not have a direct effect, then the dispute will be brought over for a
period of one year before it can be settled through arbitration, leaving the source of
the dispute unresolved. In terms of section 64(3), unless there is a collective
agreement in place that states otherwise, strikes and lockouts or their contemplation
are prohibited if a person adjoin by a collective agreement or an arbitration award
that regulates the issue in dispute.73
This section also prevents strikes and lockouts if the issue in dispute regulated by
any determination made by the Minister of Labour Affairs. During the 1st twelve
months of any determination that has been made in terms of Chapter 8 of the Basic
Condition of Employment Act No 75 of 1997 which regulates the issue in dispute, no
person may part take in or contemplate participation in any form of strike action.74
The 2nd element of the limitation clause in the Constitution requires the court to
consider whether the limitation in question is reasonable and justifiable in an open
and democratic society. When interpreting the limitation, having regard to the
consequences of such strike action should the limitation not be in place. Should the
limitation on essential services not to be in place, then strike action in these sectors
will threaten the life and health of members of society.75
The nature, purpose and the extent of the limitation must be considered. During this
deliberation the court must assiduously note the essential content of the right in
question and also consider less restrictive alternatives to limitation. An example is
the ban on strikes by essential services workers is not absolute, in that parties to the

21
relationship may outline a minimum service within the designated essential service,
effective allowing certain workers in the essential service to strike.76
4.4 Tradeunions as complex bargainingorganization
Because of the centrality of collective bargaining depends on the success of trade
unions, union behaviour can best be understood by asking this important question:
how does a modern trade union build an effective bargaining organisation? More in
detail, what does collective bargaining require of membership, structural design,
design, goals, internal government and administration of trade unions?77
Trade unions must be organised and effectively managed in order to meet the
various needs of their members. The organisation of a specific trade union will
depend on numerous factors which include its constitution, membership and major
objectives.78
Table 4
Methods used by unions to achieve their objectives
Collective bargaining Unions negotiate both at plant and industry level
to improved wages, working conditions.
Collective action The right to strike forms an integral part of
collective bargaining. Unions will use this in last
resort to force the hand of employer during
negotiation.
Afflation Unions often align themselves with federations to
get leverage through the support and resources
of a bigger body.
Political involvement Unions may seek to bring about political changes
in circumstances where they are dissatisfied with
the status quo. The tripartite alliance between the
ANC, COSATU and the SACP.
Benefit funds Unions often assist their members through
establishing medical aid, pension and provident
funds.
Education and social programmes Unions are involved in the establishment of
education and training programmes at the
workplace, as well as social responsibility
programmes of organisations.
Lobbying and representation on various
bodies
Stronger union federations might attempt to
influence policies by lobbying the government to
77 Kochan 1980:124.

22
bring about change. They may also belong to
other bodies such as NEDLAC; an institution
where trade unions, together with government,
the community and business deal with various
issues that affect workers. Change in the labour
legislation being one of these issues.
Source: Adapted from Bendix, 2004:159-161.
5. Conclusion
The tendency in the South African collective bargaining system over the past 20 to
30 yearstowards centralisation of bargaining, with the resultant reduction in flexibility
and a lowlevel of expression between different levels of bargaining, has implications
for the South African economy and employment creation.
In contrast to the general trend inEurope and elsewhere in the world, the South
African collective bargaining system hasnot moved towards a more neo-liberal
approach whereas the trade regime andmacroeconomic and monetary policies
have.79 This lack of organisation in policy between different departments of the state
has had negative effect for the South African economy and its ability to create
employment.
South Africa is a young country with enough resources to emulate other European
countries like Denmark. The state, business and trade unions must work together to
find an affordable system. This would be to the advantage of all workers in the
country, as it would improve international competitiveness and help with job creation
without putting workers at risk.
South African labour laws need to be looked at, in order for our economy to compete
with other developing and even developed countries. The National Development
Plan of the government does address this issue but on a long term basis. A solution
is needed as soon as possible.
79 Maree 2011:33.

23
BIBLIOGRAPHY
Books
ANSTEY ET AL
2011.Collective bargaining in the workplace.1st Ed.Cape Town:Juta &
Company Ltd.
BEAL EF AND BEGIN JP
1982.The practice of collective bargaining.6th Ed.Illionois:Richard D Irwin INC.
BENDIX,S
2010.Labour relations in practice.1st Ed.Cape Town:Juta & Company Ltd.
BUHLUNGU S AND TSHOAEDI M
2012.Cosatu’s contested legacy.1stEd.Cape Town:HSRC Press.
DU PLESSIS JV AND FOUCHE MA
2006.A practical guide to labour law.6th Ed.Johannesburg:Lexis Nexis.
GODFREY ET AL
2010.Collective bargaining in South Africa.1st Ed.Cape Town: Juta &
Company Ltd.
GROSSETT L AND LANDIS
2005.Employment and the law.2nd Ed.Lansdowne:Juta & Company Ltd.
KOCHAN,TA
1980.Collective bargaining and industrial relations.1st Ed.Illinois:Richard D
Irwin INC.
SLABBERT JA AND SWANEPOEL BJ
2011.Introducing labour relations management in South Africa.1st
Ed.Johannesburg:Lexis Nexis.
VENTER ET AL

24
2009.Labour relations in South Africa.3rd Ed.Cape Town: Oxford University
Press.
Internet
STRYDOM,TJ
2014.Mining talks collapse.http://www.mg.co.za/miningtalkscollapse.Accessed
on 10/06/2014.
Journals
CHEADLE,H
2005.Collective bargaining and the LRA.Law, Democracy and
DevelopmentJournal 9(2):147-155.
CHICKTAY,MA
2007.Democracy, minority unions and the right to strike.ObiterJournal
28(1):159-165.
MAREE,J
2011.Trends in the South African collective bargaining system a comparative
perspective.South African Journal for Labour RelationsJournal 35(1):7-37.
VAN DER WALT A AND QOTOYI T
2009.Dismissals within context of collective bargaining.Obiter Journal
30(1):63-119.

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