Constitutional Courts Says Only Certain SAPS Employees may go on Strike MyZA

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The Constitutional Court today confirmed that not all staff employed by the South African Police Service (SAPS) are prohibited from striking. Johan Botes, director in Employment at Cliffe Dekker Hofmeyr business law firm said the Court confirmed the decisions of the Labour Appeal Courts and Labour Court holding that only those SAPS members employed under the South African Police Service Act (SAPS Act) are engaged in providing essential services under the Labour Relations Act 66 of 1995 (the LRA). Sections 65(1)(d)(i) and 71(10) of the LRA prohibits employees engaged in essential services from engaging in strike action.

“In its appeal to the Constitutional Court, the SAPS argued that all staff employed by the SAPS, including administrative personnel engaged under the Public Servants Act (the PSA) deliver essential services and should thus be barred from partaking in industrial action. The main advantage for the SAPS as an employer to such a finding would be that it would be able to curb disruptions to its operations caused by striking workers. Employees engaged in essential services have to submit their disputes to arbitration and are not permitted to flex their collective muscle by downing tools in an effort to force their employer to meet their demands. An arbitrator determines matters of mutual interest that are in dispute in essential services – which is in sharp contrast with the position in other services or industries where workers can withhold labour when the collective bargaining process fails to bring about the desired result.”

Botes says section 23(2)(c) of the Constitution grants all employees the right to strike. This right is then limited in section 65(1)(d)(i) of the Labour Relations Act where employees engaged in essential services are prohibited from taking part in strike action (or being locked out by their employer). This limitation of the right to strike should be interpreted restrictively, the Constitutional Court confirmed in its judgment today.

“The South African Police Service is listed as an essential service in the definition of such a service in the Labour Relations Act. Other examples include the Parliamentary service and a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population,” he notes.

The Constitutional Court stated further that it could not fault the Labour Appeal Court when the latter held that not all employees employed by the SAPS are engaged in essential services. The appeal brought by the SAPS was dismissed.

Botes add, “The Constitutional Court’s judgment confirms the sanctity of the right to strike – a hard-fought right that is part of the very fibre of our employment law framework. The judgment reinforces the central role that collective bargaining plays in the workplace. Employers seeking to avoid the pitfalls of collective bargaining may have to look elsewhere than classifying its service as an essential service in the light of this judgment.”