<p>This paper investigated how the law of industrial action is shaped in South Africa and in Germany, which specific problems occur in South Africa and Germany, and how the different legal systems solve these problems. It also compared the different legal approaches of these two countries.</p>

<p>This paper investigated how the law of industrial action is shaped in South Africa and in Germany, which specific problems occur in South Africa and Germany, and how the different legal systems solve these problems. It also compared the different legal approaches of these two countries.</p>

A research report submitted to the Faculty of Health Sciences, University of the Witwatersrand, in partial fulfillment of the requirements for the degree of Master of Science in Medicine in the branch of Bioethics and Health Law, Johannesburg, May 2012 / Doctors in the South African public services went on strike in mid-2007, 2009 and 2010. The main issue related to salaries. In my research report I will present arguments concerning the justifiability or not of strike action by South African doctors Thus the laws, codes, and oaths subscribed to by medical practitioners in South Africa will be presented. Doctor's obligations stated in such declarations, and some ethical theories will be presented as they relate to the moral justifiability of doctor's strikes, and to the individual doctor-patient relationship. Arguably, the individual doctor-patient relationship is crucial for a flourishing population and social justice. In the context of this relationship, the potential harms and benefits of strike action for both parties will be discussed. I will suggest that whether justified or not, strikes may not be the right means to achieving the end of excellent healthcare. The aim of the research, ultimately, is optimal health for the South African population with retention of doctors in the public service.

The recent amendments made to employment laws and in particular the rewriting of the South African Labour Relations Act has brought into focus the diverse and conflicting interests of employers and employees, which is a concern of labour law analysts. This appraisal of South African of strike law examines the statutory and judicially established labour law in regard to the phenomenon of collective industrial action by employees and the regulation of its occurrence. Historical developments in strike law are traced from the early 1900’s. A period of segregated trade unionism, led ultimately to the introduction of a more inclusive system of regulation, which has in turn been modified to bring the law into line with the new constitutional imperatives. Industrial action occurred, often unregulated and regardless of statutory limitations, and in particular that industrial action which related to mass protest action, now recognized as a specific form of strike. The now repealed Labour Relations Act 28 of 1956 is examined with regard to its strike regulating provisions, and identification of what were then new, unrecognized forms of strike action. It has allowed concepts and principles to be developed, under the unfair labour practice jurisdiction of the Industrial Court, much of which has been incorporated in the new Labour Relations Act. The legislation on strike law, which has been developed over the years, has been refined by the constitutional imperatives introduced to the national legal system. The relevant aspects of the new Constitution Act 108 of 1996 and its pervasive effect on strike law are examined. The right to strike in South African labour law, together with the protection of collective bargaining, is now constitutionally entrenched, and the right to strike is now accepted as a necessary adjunct to collective bargaining. It is necessary to give effect to the Constitution in national legislation, and the Labour Relations Act 66 of 1995 endeavours to accomplish this in chapter IV in regard to strike law, which, it could be argued, limits rather than gives expression to the right to strike. iii The Labour Relations Act of 1995 is then discussed with reference to protected and prohibited strikes, and unregulated strike action. It will be evident that the Act has endeavoured to contain unprocedural and productivity draining industrial action, by subjecting rights disputes to arbitration and Labour Court adjudication, subject to certain exceptions. The recourse to lock-out, as the employer’s prerogative and general corollary of strike action, is briefly discussed. The case law relating to strikes is discussed in respect of both the 1956 Act and the new Labour Relations Act of 1995. Among the issues explored are the strike provisions which have been developed in statute and labour related common law, such as the identification of issues in dispute, notice of strike, the issuing of ultimatums, the audi altarem partem rule and the court’s approach to protected and unprotected strikes. The intention is to determine trends resulting from amendments to the law and draw inferences regarding, in particular, the unregulated form of strikes that occur within the scope of the protections offered by the Act. It is the intention to determine whether the desired effect has been achieved by implementing legislative reforms in response to public policy considerations.

The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.

The Labour Relations Act 66 of 1995 brought a number of changes in the labour relations environment from its inception on 11 November 1996. The Act codified Industrial Court decisions that were already established under the strike-law jurisprudence from the Labour Relations Act 28 of 1956. These general changes to the law also impact on the strike-law regime. The purpose of this paper is to give an overview of the contributions made by the Labour Courts1 in developing strike law from the inception of the Act. The Labour Courts have made a number of decisions that have helped in clarifying the provisions of the Act. One should hasten to say that this has never been a smooth process by the courts. It will further be shown in this paper that some of the court decisions were not well accepted in the light of other considerations, such as the Constitution and the previous Industrial Court decisions. On some occasions the Constitutional Court had to intervene in order to clarify the intention of the legislature. For the purpose of effectively dealing with this topic, I shall briefly give the historical context of strike law in the form of common-law position, and the strike-law position before the Bill of Rights and the Constitution. I shall then endeavour to identify the legislative provision of the Act when it comes to strike-law provisions, at the same time identifying the important court decisions that were made.

South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.

Conflict is an inherent part of any service relationship, and is one of the important methods of effective organisational functioning. Depending on its management, it has both constructive and negative outcomes. The most extreme outcome of conflict in an industrial relationship is a strike. The South African Public Service strike of 2007 was the most protracted and united strike in the history of South Africa. In order to provide an insight into this strike, this treatise explores the following key aspects: • To present a short background of collective bargaining in the public sector through time. • To provide a short background to the public sector strike in 2007. • To develop a conflict model for analytic purposes based on a literature review and to use the conflict model to analyse the strike. A study of the strike was deemed essential because of its current nature and it being charged with political undertones. Moreover, conflict in the employment relationship has had an important influence on theories of industrial relations. The South African labour relations system is pluralist in nature, with a focus on the formal institutions of industrial relations. The focus should be on the motives and actions of parties in the employment relationship. Hence, one should look beyond conventional explanations in understanding conflict.

Orientador: Fernando Teixeira da Silva / Dissertação (mestrado) - Universidade Estadual de Campinas, Instituto de Filosofia e Ciências Humanas / Made available in DSpace on 2018-08-27T09:04:24Z (GMT). No. of bitstreams: 1 Campanini_AndreiFelipe_M.pdf: 1644076 bytes, checksum: 67cc09750b916dbe0c4d45aedf08ab51 (MD5) Previous issue date: 2015 / Resumo: A presente dissertação estuda as batalhas sociais, legislativas e jurídicas que culminaram no reconhecimento do direito de greve, com a promulgação da Constituição Federal de 1946, e na regulação do seu exercício pelo decreto-lei nº 9.070, de março do mesmo ano. Ela inquiriu a construção dos dispositivos legais sobre a greve como rebento de um complexo processo sociopolítico, em cuja tessitura trabalhadores e patrões tiveram seu grau, evidentemente desproporcional, de participação. E, simultaneamente, sugeriu os modos pelos quais essa legislação e seus instrumentos de aplicação puderam ser compreendidos e reinterpretados pela classe trabalhadora, que estava ciente e em negociação com os programas defendidos pelos patrões ou pelo intervencionismo estatal. Durante o percurso analítico, foram consultados os anais da Assembleia Constituinte de 1946 e os diplomas normativos que disciplinaram as paredes no período. De maneira complementar, foram cotejadas outras fontes de discussão legislativa e judiciária, sobretudo compêndios de juristas e artigos de periódicos especializados em Direito Social, como o "Boletim do Ministério do Trabalho, Indústria e Comércio", a "Legislação do Trabalho", a "Justiça do Trabalho" e a "Revista Forense". / Abstract: The present work is a study of the social, legislative and legal struggles that led to the right to strike, with the enactment of the Brazilian Federal Constitution of 1946, and to its regulation by the Decree No 9.070, in March of the same year. This research investigates the construction of the legal devices on strikes as a result of a complex socio-political process, of which both employees and employers took part (of course, not equally). Moreover, it analyzes how the organized working class, aware of the programs defended by both the State interventionism and the employers, could receive these legal devices and could negotiate about them. During the development of the research, the annals of the Constituent Assembly of 1946 were consulted as well as the regulatory instruments of the strikes at that time. Some jurists¿ books and magazines specialized in Social Rights were also consulted, such as the "Boletim do Ministério do Trabalho, Indústria e Comércio", "Legislação do Trabalho", "Justiça do Trabalho" and the "Revista Forense" / Mestrado / Historia Social / Mestre em História

The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means 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 resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.