PROTEST ACTION WITHIN THE AMBIT OF THE LABOUR RELATIONS ACT 66 OF 1995 COSATU v Business Unity of South Africa (2021) 42 ILJ 490 (LAC)

Abstract

Protest action is not a new phenomenon in democratic South Africa. In the 1980s and 1990s, many stay-aways were used by workers to demonstrate opposition to government policy. However, the Industrial Court was disinclined to grant such actions protection and, as a result, they were deemed unlawful under the Labour Relations Act 28 of 1956 (1956 LRA). Unlike protest action, strike action was regulated and defined under the 1956 LRA. Nonetheless, the International Labour Organisation (ILO)’s Fact-Finding and Conciliation Commission on Freedom of Association criticised the narrow definition of “strike” in the 1956 LRA, stating that employees should be permitted to strike in protest against the government’s economic and social policies.
Under the democratic dispensation, the Constitution of the Republic of South Africa, 1996 (the Constitution) clearly provides that everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions (s 17) and that employees have the right to strike (s 23(2)(c)). The term “assemble” in section 17 of the Constitution has been interpreted to cover meetings, pickets, protest marches and demonstrations that are aimed at expressing a common opinion. Based on these constitutional provisions, employees can therefore use economic power to support their various demands. In terms of section 1 of the Labour Relations Act 66 of 1995 (LRA), one of the aims of this Act is “to advance economic development, social justice, labour peace and the democratization of the workplace”. Among other measures, this is done through allowing employees and their organisations the right to engage in protest action. While a strike is focused on “matters of mutual interest” between employees and their employer, protest action is focused on the “socio-economic interests” of employees (s 213 of the LRA). Strike action is the most common and better understood of the two actions, while protest action is often misconstrued. Protest action assists employees, their trade unions and federations to play an important wider role in society. Through protest action, employees can influence policy decisions in society. Section 77 of the LRA gives effect to and regulates the right to engage in protest action.
South Africa has experienced many protests and as a result, the country has been referred to as “the protest capital of the world”. Federations of trade unions such as the Congress of South African Trade Unions (COSATU) have over the years organised a number of protests, including those against labour broking and high tolls. Protests are used for various reasons, including those related to service delivery. However, the focus in this discussion is on protests regulated by the LRA. Given the number of protests that take place in South Africa, it is important that the concept of protest action, and the nature and scope of the right to engage in protest action as regulated by section 77 of the LRA, be properly understood. The discussion focuses on COSATU v Business Unity of South Africa ((2021) 42 ILJ 490 (LAC)), which deals with the interpretation of section 77 of the LRA.