Authored By: Lithalethu Mehlwana
University of Fort Hare
ABSTRACT
The tension between the right of patients to access timely and quality health care and the right of public health care workers to strike is one of the most contested ethical and legal dilemmas in modern societies around the world including South Africa health systems operate under pressure, with chronic understaffing, resource constraints and historically challenging labour relations. While striking is fundamental labour right recognised globally, the unique nature of health care complicates the debate. Delays and disruptions in medical services can have direct, sometimes irreversible consequences on human life. Therefore, societies must find a balanced approach that respects the right of health workers as employees while safeguarding the public’s constitutional right to health care services.
INTRODUCTION
The right to initiate a strike is an essential part of collective bargaining, allowing workers to effectively communicate their grievances, requests, and working conditions to their employers. The Constitution of South Africa, adopted in 1996, guarantees the freedom of every worker to engage in a strike.1 The Constitutional court declared in the case National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another (Pty) Ltd and Another (CCT14/02) [2002] that workplace strikes are used for negotiation and maintaining economic power balance and preventing financial strength misuse and employee exploitation.2 As a result, many governments have acknowledged the importance of protecting workers participating in strikes, and the right to strike is now recognized worldwide. The International Labour Organization (ILO) has further stressed the importance of member states adopting fair labour laws that protect workers who go on strike, as outlined in its conventions.3
Section 23 of the South African constitution ensures the right to strike,4 with limitations outlined in Section 36 (the limitation clause).5 As per Chapter 4 of the Labour Relations Act 66 of 1995, strikers are protected in terms of job security and authorized striking is made easy.6 This grants legal recognition to the industrial action. Employees who follow the necessary procedures during a strike are safeguarded against being fired for their involvement in the strike. The capability to hit, though, is not without restrictions. This represents a significant change from common law, which allowed employers to use the old LRA to fire workers by claiming they had freedom but not the right to strike.
Justice Chaskenson agreed with the Constitutional Assembly’s decision to include the right for employees to strike in section 23(2)(c) of the Constitution in the Ex Parte Constitutional Assembly case, establishing a landmark precedent for the incorporation of the right to strike in the 1996 South African Constitution.7 Section 23(c) of the Constitution and ILO Convention 87, which established a comprehensive set of labour regulations and a protected right to strike for employees who lawfully participate in strikes, had a significant impact on labour laws in South Africa. South African employees who engage in lawful strikes are protected from severe employer actions like dismissal and unjust labour practices. However, they must adhere to the law and agreed-upon rules between employers and employees. Unauthorized strikes can lead to severe consequences, including employer dismissal. Therefore, employees are allowed to go on strikes.
THE RIGHT TO STRIKE IN TERMS OF THE CONSTITUTION
The Constitution of South Africa, 1996 guarantees the right to strike under section 23. The right to strike is a fundamental labour right that all South African employees are entitled to exercise under the constitution.8 The ability to go on strike is a crucial element of the freedom to form associations. The right to go on strike is also considered a tactic utilized by trade unions in cases where negotiations as a group do not succeed. The Constitution also states that trade unions, employers’ organizations, and employers themselves are allowed to participate in collective bargaining.9 This is additionally reinforced by laws at the national level that are implemented to oversee these procedures. Section 64 of the Labour Relations Act No. 66 of 1995 ensures the right to strike and outlines processes for its execution and safeguarding in collective bargaining situations.10
Workers must work together to ensure they have enough power as a group to negotiate effectively with employers. Workers can demonstrate their power through collective bargaining and taking industrial action. The ability to go on strike is an important part of negotiating as a group. Hence, removing an employee’s ability to strike undermines the right to unionize and negotiate collectively.11
According to section 23(5) of the Constitution, all trade unions, employers’ organizations, and employers are entitled to take part in collective bargaining.12 Negotiation helps parties understand each other’s needs during collective bargaining. This procedure aims to resolve the conflicting objectives. The workers have the right to collective bargaining, but it is not effective without the ability to strike. If the right to collective bargaining is absent, then it essentially becomes a right to “collective begging”, implying that workers will be perceived as begging their employers for attention to their demands and needs. The purpose of the term “collective bargaining” is to uphold peace in the workforce.13
THE RIGHT TO STRIKE UNDER THE INTERNATIONAL LABOUR ORGANISATION (ILO)
The International Labour Organization (ILO) was established in the early months of 1919 by the Labour Commission.14The aim of the ILO is to provide a fair platform for workers, employers, and the government to have an equal say.15 The ILO’s relevance for this study lies in addressing the right to strike and its international recognition. In addition, the ILO will be utilized to emphasize the protection of the right to strike, especially under Article 11, which states that all required actions must be implemented to guarantee that workers and employers can freely exercise their right to form organizations. In the beginning of 1927, the ILO acknowledged the right to strike and its connection to freedom of association. The ILO has had a major impact on global labor law matters, particularly in the realm of worker rights in the workplace.
The South African Constitution acknowledges international law, serving as the foundation for its domestic recognition. According to Section 39 of the Constitution, the courts and other legal entities must take into account international law and foreign law. In interpreting legislation, the court must prioritize a reasonable interpretation consistent with international law over one that is not consistent with international law as per Section 233 of the Constitution.16
Section 233 mentioned above implements international law. Moreover, it should be emphasized that in situations where international law clashes with the Bill of Rights, domestic courts will not support the international law. In the Government of the Republic of South Africa v Grootboom ZACC 19,2001(1) SA 46 (CC) (11) BCLR 1169 (CC) case, Justice Yacoob of the Constitutional Court mentioned that international law can provide guidance for interpretation, but the significance of each specific principle or rule may differ. Nevertheless, South Africa must adhere to international law principles that are applicable to them.17
The Constitution includes provisions that have acknowledged the freedom of association. Every ILO member must adhere to the freedom of association principle. The analysis of the ILO Constitution delves into the details of how the CFA (Committee of Freedom of Association) established the connection between freedom of association and the right to strike.
LIMITATIONS PLACED ON THE RIGHT TO STRIKE (INTERNATIONAL PERSPECTIVE)
The South African Constitution of 1996 and the Labour Relations Act 66 of 1995 allow the right to strike in essential services, with specific limitations imposed. These limitations should be logical and justifiable in an open and fair society that values human dignity, equality, and freedom. The Constitution allows limitations on the right to strike by means of overall legislation, while the Labour Relations Act 66 of 1995 limits the right to strike by prohibiting participation in a strike if the matter can be resolved through arbitration or the Labour Court.18
The International Labour Organization (ILO) acknowledges limitations on the right to strike, stating that as long as strikes are peaceful, these restrictions and prohibitions are acceptable.
The ILO’s legal interpretations are essential in global law, providing safeguards for the right to strike and recognizing specific justifications for its restriction. Compulsory arbitration is a common restriction imposed by either governing bodies or the parties involved in the dispute. In countries like Canada and South Africa, their Constitution includes a provision for a limitation clause, which imposes restrictions that are considered fair and justifiable. 19
The importance of limiting the right to strike is highlighted by the case, as it demonstrates that rights can be constrained when they interfere with the rights of others, such as the right to receive healthcare. Health care workers going on strike can violate patients’ rights to healthcare, causing damage to the workers, the hospital’s image, and patients’ health. There are limitations on rights when they interfere with other fundamental rights, showing that no right is completely unrestricted on a global scale.
CONCLUSION
In conclusion, Healthcare workers are prohibited from striking, despite being guaranteed the to strike by the Constitution and LRA. This creates a contradiction with the standards set by the ILO and section 65 of the LRA 66 of 1995. Ethical issues come up when strikes in the healthcare industry prioritize the welfare of patients. Healthcare workers can strike as long as a minimum staffing agreement is in place with a set percentage of employees providing care. The discussion regarding healthcare workers’ ability to go on strike is still ongoing within the sector.
Balancing public health care workers’ strike rights and patients’ rights is difficult, as demonstrated in this article. Giving priority to the needs of healthcare workers during labour stoppages can prevent strikes and maintain uninterrupted care for patients. A focused bargaining process must consider the demands of healthcare workers to rectify the disparity between the two rights. Strikes should be a last resort, with the goal of preventing patient neglect and supporting workers’ rights. This approach will lead to a more equitable allocation of the two rights in the healthcare sector.
BIBLIOGRAPHY
Legislations:
∙ Constitution of the Republic of South Africa, 1996
∙ Labour Relations Act 66 of 1995
International Instruments:
∙ International Labour Organization, right to organization and collective bargaining convention No.98
Case Laws:
∙ Government of the Republic of South Africa v Grootboom ZACC 19,2001(1) SA 46 (CC) (11) BCLR 1169 (CC)
∙ National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another (Pty) Ltd (CCT14/02) [2002]
Books:
∙ Gernigon et al: International labour organization 3rd ed (2000) pg 110
∙ Olivier: labour Law in South Africa 2nd ed (2016)
Journals:
∙ G. Von Potobsky: freedom of Association; The impact of Convention No.87 and ILO action (1998) Vol.137 International labour review pg5
∙ JR. Bellace: The ILO and the right to strike (2014) vol153, NOL Wiley Online Library pg 29-31
∙ B.Gernigon, A, Adero, H.Guido: ILO principles concerning the right to strike (1998) Vol 137 No4
∙ KJ. Selala: The right to strike and future of collective bargaining in South Africa: An explanatory analysis (2014) Vol3 No5 International Journal of Social Sciences pg 115
Thesis and Dissertations:
∙ Lungelo Ndlovu: Towards a Balanced Approach Regulating the right to strike in the South African public health sector (LLM, UJ, 2019)
1 The Constitution of the Republic of South Africa, 1996
2 National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another (Pty) Ltd (CCT14/02) [2002]
3 Gernigon et al: International labour organization 3rd ed (2000) pg 110
4 The Constitution of the Republic of South Africa, 1996
5 The Labour Relations Act 66 of 1995
6 Ex Parte: Constitutional assembly
7JR. Bellace: The ILO and the right to strike (2014) vol153, NOL Wiley Online Library pg 29-31
8 B.Gernigon, A, Adero, H.Guido: ILO principles concerning the right to strike (1998) Vol 137 No4 http://ilo.org.za/wcmsp/group
9International trade Union confederation; Action at the ILO to defend the right to strike
10 KJ. Selala: The right to strike and future of collective bargaining in South Africa: An explanatory analysis (2014) Vol3 No5 International Journal of Social Sciences pg 115
11Lewis: Labour Relations Law: A Comprehensive Guide 3rd ed (2021)
12 Constitution of the Republic of South Africa, 1996
13 Olivier: labour Law in South Africa 2nd ed (2016)
14 G. Von Potobsky: freedom of Association; The impact of Convention No.87 and ILO action (1998) Vol.137 International labour review pg5
15 International Trade Union confederation, action at the ILO to defend the right to strike available at International Trade Union Confederation – Building Workers’ Power (ituc-csi.org)
16 Lungelo Ndlovu: Towards a Balanced Approach Regulating the right to strike in the South African public health sector (LLM, UJ, 2019)
17 Government of the Republic of South Africa v Grootboom ZACC 19,2001(1) SA 46 (CC) (11) BCLR 1169 (CC)
18 Labour Relations Act 66 of 1995, Section 65
19 D. Ahmed and E. Bulmer: Limitation Clauses international IDEA (2014) https://www.idea.int/sites/default/files/publications/limitation-clauses-primer
