The right to strike and replacement labour: South African practice viewed from an international law perspective

Abstract

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.