2 Freedom of Association and Protection of the Right to Organize (87 of 1948); The right to organization and collective bargaining (98 of 1949); Workers' Representatives (135 of 1971) (and accompanying Recommendation 143); Rural Workers and their role in Economic and Social Development (141 of 1975) (and accompanying Recommendation 149); Labor Relations (Public Service) (151 of 1978) (and accompanying Recommendation 159); Promotion of collective agreements (154 of 1981) (and Recommendation 163); Right of Association and Settlement of Labor Disputes in Non-Metropolitan Territories (84 of 1947); and Rights of Association and Combination of Agricultural Workers (11 of 1921). To what extent does Lesotho law provide for freedom or the right to strike?
Statement of Purpose
Is any restriction on the right or freedom of public officials to strike justified in Lesotho within a democratic society within which the rule of law reigns. What is the position of law in Botswana and South African jurisdictions regarding the right or freedom of public servants to strike.
Deriving the Right or Freedom to Strike from Freedom of Association
The right to strike is therefore a means for the trade union to function better. However, it must be emphasized that the right to strike is an effective channel through which the fundamental right to freedom of association can be enjoyed.
Literature Review
For example, Sheldon22 analyzes the relationship between the right to strike and freedom of association from an international perspective. He states that the right to strike can be derived directly or indirectly from the freedom of association.
Conclusion
Freedom of association and the right to strike for public sector workers in South Africa is discussed by Budeli.26 She analyzes several cases dealing with the right of public sector workers to strike in South Africa.27 She then compares the approach of the South African courts. on the issue of freedom of association of public sector employees with that of the courts of Lesotho28 on the same issue. This study will argue that if interpreted purposively, section 16 of the Constitution of Lesotho does not prohibit strikes in the public sector.
Freedom or Right to Strike in Context 2.1 Introduction
- The Right or Freedom to Strike
- Sources of the Right to Strike
- The Purpose of Strike
- Conditions for Exercising the Right to Strike
- Conciliation, Mediation and Voluntary Arbitration
- Quorum and Majority for Declaring Strikes
- Freedom to Work for Non-Strikers
- Exceptions to the Right or Freedom to Strike
One of the United Nations (UN) treaties that enjoys high ratification rates, the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), recognizes the right to strike. 68 ILO Summary of Decisions and Principles of the Freedom of Association Committee under the ILO Governing Council, paragraph 368; Definition of the right to strike p.264.
2 .7 The Notion of Essential Services
Conclusion
This chapter has defined and discussed the concept of strike, the sources of the right or freedom to strike, the purpose served by strikes in modern labor law and the conditions that must be met before labor may be withdrawn from the workplace. Most importantly, this chapter emphasized that the right to strike is not an absolute right, there are certain limitations recognized at the international level and each state is free to adopt legislation restricting the exercise of the right to strike. restrict and/or prohibit strikes, provided that such legislation complies with international labor standards. The next chapter discusses the freedom to strike with specific reference to the law of Lesotho.
Chapter Three: Freedom of Association in Lesotho
- Introduction
- Historical Development of Freedom of Association in Lesotho
- Freedom of Association in the Public Sector
- Right or Freedom to Strike: Public Officers
- Conclusion
Despite the passage of the Labor Code, other legislation was subsequently passed to regulate public servants; Law on Public Service. 135. 145 Section 21 of the Law provides that "public servants have the right to freedom of association in accordance with Article 16 (1) of the Constitution". 146 Section 19 (1) of the Public Service Act 2005 provides that "public servants shall not engage in strike action".
The second chapter of the constitution guarantees the protection of fundamental human rights and freedoms. 160 Articles 2 and 9 of the Convention on Freedom of Association and Protection of Trade Union Rights No. 162 Article 3 of the Convention on Freedom of Association and Protection of Trade Union Rights No.
It is on the basis of this provision that Article 19 of the Public Service Act states that a strike by civil servants is illegal. This argument undermines the importance of freedom of strike and should not be supported. In Lesotho, civil servants currently do not enjoy the freedom to strike.
Chapter Four: Comparative Study
Introduction
The Right to Strike: the Republic of South Africa
- Right to Strike for Public Officers in South Africa
- Conclusion: South Africa
In the quote above, the Constitutional Court expresses the importance of the right of South African workers to strike and how it is covered by the Bill of Rights. The Labor Relations Act206 was adopted to enforce the constitutional labor rights contained in, among other things, Article 23 of the Constitution.207 The first article of the Act provides, among other things, that: The law gives special protection to strikes that comply with the provisions of the law.
However, the Labor Court in Western Cape Provincial Government v COSATU219 held that it was not possible to give an all-encompassing definition of the phrase. However, there are certain provisions of the Labor Relations Act that apply only to employees in the public sector.230 None of these specific provisions of the Act address the right to strike. In essence, therefore, the provisions of the Act on Labor Relations, which regulate strikes, apply mutatis mutandis to civil servants.231 Some provisions specify that the operation of these provisions differs.
It therefore follows that public servants in South Africa have the right to strike provided the provisions of the Labor Relations Act have been followed. However, the public officials engaged in essential services do not enjoy the right to strike.237 Prior to the adoption of the Labor Relations Act, workers in the essential services were considered to have no real alternative dispute resolution mechanisms at their disposal.238 The introduction to the Labor Relations Act however, remedied this situation. This essentially gives the public servants the right to strike, provided they comply with the requirements for a legal strike under the provisions of the Labor Relations Act.
The Freedom to Strike: the Republic of Botswana
- Right to Strike for Public Officers in Botswana
- Conclusion: Botswana
As discussed above, the proper liberal interpretation of the Constitution of Botswana indicates that the Constitution does recognize the right/or freedom to strike. However, the importance of section 13(1) of the Constitution, in respect of public officials, is disregarded by section 13(2)(c) thereof. Botswana Landboards & Local Authorities Workers' Union and Others260 the Court found that after Botswana's ratification of the two key conventions (Conventions No. 87 and 98), the public officers in Botswana were granted the right to strike for the first time.
Thus, the operation of Section 39261 of the Trade Disputes Act covers, among others, public officials. 269 The applicants argued that the amendment was promulgated by the Minister in exercise of his powers purportedly conferred by section 49 of the Trade Disputes Act, but that section was itself ultra vires section 86 of the Constitution of Botswana (it constituted an unconstitutional delegation of the legislature powers from the Parliament). Second, the applicants argued that the Minister did not consult the Labor Advisory Board before approving the amendment, therefore the amendment was ultra vires.
The third argument of the appellants was that, in terms of the Act on By-laws (cap. 01:04), the minister may not re-issue a by-law that was repealed by the National Assembly. The fourth reason was that section 49 of the Trade Disputes Act does not allow the Minister to make an order that is incompatible with Botswana's obligations under the ILO. The fifth reason was that the amendment by limiting the right of workers to strike, which is not justifiable in a democratic society, was contrary to Article 13 of the constitution ultra vires.
Conclusion
Conclusions and Recommendations
- Introduction
- Recommendations
- Uniform Labour Laws
- Redefining ‘Public Officer’ for Purposes of Strike
- The Essential Services Committee
- Reform of Dispute Resolution Processes in the Public Service
- Protection Against Protest Action
- Conclusions
The non-binding nature of the ruling undermines the purpose of mandatory arbitration as an alternative to strikes in the public sector. Only in the first-mentioned category can the freedom of association be limited in a justified manner, in the sense that they do not resort to strikes.279 An alternative to this could be the use of the term 'bargaining unit' in Article 19 of the Civil Servants Act instead of 'government officials'. In other words, these are those government officials who, by the nature of their official functions, are not directly involved in the administration of the state, for example office clerks, drivers, messengers and secretaries.
Since this group does not exercise authority in the name of the state, there is really no justification for denying them the right to strike. The Chairman of the Council is also the Commissioner of Labour, who reports to the minister. In light of the above discussion, it is suggested that there is a need for the establishment of a Committee for Essential Services in Lesotho.
None of the members of the committee may be appointed or hold any office in the public administration during their term of office as a member of the committee. This is problematic, especially in light of the fact that civil servants cannot go on strike. This requires the immediate attention of the legislator, as it constitutes a violation of workers' rights.
Annexures Annexure 1 293
L ist of Works Cited Text Books
Chickty, M.A. "Defining the Right to Strike: A Comparative Analysis of International Labor Organization Standards and South African Law" (2012) OBITER 260. Mthombeni, R "Right or Freedom to Strike: An International and Comparative Perspective South African Journal of Comparative and International Law 337. Sarkin, J ' The Effect of Constitutional Borrowing on the Drafting of the South African Bill of Rights and the Interpretation of Human Rights Provisions Journal of Constitutional Law 176.
Sheldon, L 'Can you Deriv a Right to Strike from the Right to Freedom of Association Canadian Labor and Employment Law Journal 271. General Overview of the Reports on Freedom of Association and the Protection of the Right to Organize, 1948 Convention (No. 87 ), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98). International Labor Organization Freedom of Association: Summary of decisions and principles of the Committee on Freedom of Association of the Governing Body of the ILO, 3rd edition (1985).
International Labor Organization Freedom of Association: Summary of Decisions and Principles of the Committee on Freedom of Association of the Governing Body of the ILO Ed. 4 (revised) (1996). International Labor Organization Freedom of Association: Summary of Decisions and Principles of the Committee on Freedom of Association of the Governing Body of the ILO Ed. 5 (revised) (2006). Its Impact on Industrial Relations in the Public and Private Sectors (1993), a paper presented by the former President of the Labor Court of Lesotho at a conference held in Maseru.
