| (1) | The right to engage in collective bargaining and the right of workers and employers to take industrial action is constitutionally protected. The right to engage in collective bargaining is a right that trade unions, employers and employers' organisations share. Workers have the right to strike and the Constitu1ional Court has held that the right to engage in collective bargaining implicitly recognises the employer's right to exercise some economic power, which may include the right to lockout. |
| (2) | Like all rights, the right to engage in collective bargaining (including the recourse by employers to exercise economic power) and the right to strike may be limited by legislation provided that the limitation is reasonable and justifiable. The limitations imposed on the right to strike and lockout seek to make a strike or lockout the last resort or unnecessary because of other judicial or arbitral remedies or to protect society from strikes in essential services, the interruption of which may affect the health and safety of the population. |
| (3) | It is in this context that the right to strike and the recourse to lockout must be understood. Unlike most other rights in the Bill of Rights, the right to strike and the right to lockout is a right to cause economic harm. |
| (4) | However, prolonged and violent strikes have a serious detrimental effect on the strikers, the families of the strikers, the small businesses that provide services in the community to those strikers,the employer, the economy and community. |
| (5) | Workers exercising the right to strike or the right to protest action and employers exercising the recourse to a lockout must therefore recognise the constitutional rights of others4 |
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4 Constitutional rights include:
| (i) | Section 12(1) 'Everyone has the right to freedom and security of the person,which includes the right ...(c) to be free from all forms of violence from either public or private sources.' This refers to the right of people not to be threatened with or subjected to violence. |
| (ii) | Section 16 'Everyone has the right to freedom of expression ... (that) does not extend to (b) incitement of imminent violence; or (c) advocacy of hatred ...' Refers to the right to express oneself during industrial action, but not in a manner that incites violence or constitutes hate speech. |
| (iii) | Section 17 'Everyone has the right. peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.' This refers to the right of workers to demonstrate and picketin a peaceful and unarmed manner. |
| (iv) | Section 18 'Everyone has the right to freedom of association.' This refers to the right of a worker to participate or not to participate in the strike or lockout. |
| (v) | Section 25 'No one may be deprived of property except in terms of a law of general application'. This refers to the right not to be threatened with or subjected to damage of property. |
| (vi) | Section 23(1) 'Everyone has the right to fair labour practices.' Refers to the right not to be penalised for engaging In a protected strike or lockout. |
