n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - A dispute in respect of a matter of mutual interest in relation to a strike : City of Johannesburg Metropolitan Municipality v SAMWU : case comment
|Article Title||A dispute in respect of a matter of mutual interest in relation to a strike : City of Johannesburg Metropolitan Municipality v SAMWU : case comment|
|© Publisher:||Juta Law Publishing|
|Journal||SA Mercantile Law Journal = SA Tydskrif vir Handelsreg|
|Affiliations||1 University of South Africa|
|Publication Date||Jan 2012|
|Pages||107 - 114|
The right to strike is derived from ILO Conventions 87 of 1948 (Freedom of Association and Protection of the Right to Organise Convention) and 98 of 1949 (Right to Organise and Collective Bargaining Convention), which were both ratified by South Africa. This right is also protected by s 23(2)(c) of the Constitution of the Republic of South Africa, 1996 ('the Constitution'), stating that 'every worker has the right to strike' (see also Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 (1996 (4) SA 744 (CC); (1996) 17 ILJ 821 (CC)). It is regarded as one of the fundamental rights for employees. The Labour Relations Act 66 of 1995 ('the LRA') gives effect to the right to strike and regulates it in terms of its Chapter IV. In terms of the definition of 'strike', in order to constitute a strike the refusal to work must be for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee (see s 213 of the LRA). The strikers must therefore intend their action to remedy a grievance or resolve a dispute which relates to matters of mutual interest. A strike must involve a desire by the strikers that the employer should do or refrain from doing something. As a result, the existence and continuance of a strike depend on the existence of a grievance or dispute. If a grievance is remedied or a dispute resolved, the purpose of the strike disappears and the strike therefore terminates (see Afrox Ltd v SA Chemical Workers & others (1) (1997) 18 ILJ 399 (LC) at 406).
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