Investigating the Possibility of Suspending or Terminating a Strike on Account of Violent Conduct: Transplanting Lessons from Australia

Abstract

South Africa has a history of violent industrial strikes, with authorities seemingly unable to exert control. The existing remedies in the form of an interdict and advisory arbitration awards do not appear to address violence during strikes. Violent and lengthy strikes affect members of the public and have long-term effects on the economy, resulting in loss of employment and poverty. Since South Africa does not have the legal mechanisms to deal with or curb violent strikes, this article submits that lessons could be drawn from foreign law on how to deal with these strikes. In this article, Australia is the foreign jurisdiction from which lessons are drawn. This article commences with a comparative analysis of industrial action between Australia and South Africa to answer the question of whether violent strike action is unique to South Africa. The article establishes that the Fair Works Commission (FWC): Australia’s National Workplace Relations Tribunal can suspend or terminate industrial action that is characterised by violence. It then suggests that part of Australian labour law could be transplanted into South African labour law to combat strike-related violence. The article suggests that the Labour Relations Act 66 of 1995 (LRA) should be amended to include a provision that will empower the Labour Court to suspend or terminate industrial action once it turns violent, thus benefitting the economy and preventing job losses.