Although national practices vary in this regard, picketing is generally permitted and is often seen as a form of right to strike. In some countries, legislation imposes certain conditions on picketing and occupations in the workplace. In accordance with the principles of freedom of association, such restrictions should be limited to cases where the act is no longer peaceful (General Survey, para. 174). The dispute resolution framework is essential for the right to strike, as it aims to resolve disputes before workers go on strike. The LRA has established means of dispute resolution that are timely and easily accessible, consistent with its primary objective of conflict resolution. [89] More importantly, workers are forced into a conciliation phase, which is a prerequisite for a protected strike as enshrined in section 64(1) LRA. [90] In light of the purpose of this paper, dispute resolution mechanisms are analyzed only in relation to conflicts of interest. However, strikes should not be considered in isolation from industrial relations as a whole. They are costly and disruptive for workers, employers and society, and when they do occur, they are due to the inability to set working conditions through collective bargaining. Indeed, more than any other aspect of industrial relations, they are often a symptom of wider and more diffuse problems, so that a strike, even if prohibited by national legislation or a court decision, will not prevent it if economic and social pressures are sufficiently strong. The second objection was that the explicit inclusion of the right to strike without explicit inclusion of the right to lock out restricted the employer`s right to collective bargaining and placed less importance on employers` rights than on workers` rights. [27] In light of the second argument, Chaskalson P examined the requirements of Constitutional Principle XXVIII.
It is argued that the judiciary should interpret section 64(1)(b) of the LRA to allow for a stricter interpretation of the procedural requirements of the right to strike in order to prevent violent strikes and to promote orderly collective bargaining, which is one of the objectives of the LRA. Zondo JP considered the factors submitted by Equity Aviation in dissenting that separate communications from unrepresented employees were required. The Supreme Court of Appeal agreed with the dissenting judgment[133] and added a fifth objective, namely that the provision of a separate opinion would protect unrepresented workers. Lewis J. believed that if all employees complied with the procedural requirements of the LRA, their conduct would be protected by the LRA. Therefore, it is in the interest of all employees that an employer receives an intention to strike from all its employees who wish to strike. [134] The Supreme Court`s appeal also upheld Zondo JP`s interpretation of section 64(1)(b) of the LRA, in which she relied on labour drafters who stated that once the procedural requirements for a valid strike had been met, the matter had been referred to arbitration and the union had notified the employer of its intention to strike. Then, the union is free to call all its members to strike. Unrepresented employees may also join the strike, provided they separately notify their intention to strike. [135] The Supreme Court of Appeal and Zondo J. found that this would not lead to disorderly collective bargaining.
The Supreme Court of Appeal therefore set aside the decision of the Labour Court of Appeal. [136] It should be noted that the following is only a brief overview.
