What legal options do Eskom, govt have to force workers to return to work?
South Africa is in a difficult situation, with the citizenry of the country, small businesses, national industry, Eskom and even labour unions themselves all feeling the repercussions of the ongoing strike action by some employees of the power utility.
Speaking to Riona Kalua, Wasanga Mehana, sought to find out what legal remedies were available to force striking workers back to their jobs.
Kalua first clarified that strike action was a right accessible to all South African citizens, but like most legal rights, there were limitations.
The right to strike is not an unfettered right and it must be balanced with and against other fundamental rights, such as those related to food, work, healthcare. The Labour Relations Act has recognised this and placed certain limitations on the right to strike. One such limitation is that people engaged in essential services may not take part in a strike.Riona Kalua - Director: Labour & Employment Law at Poswa Incorporated
In the case of the ongoing strike action with Eskom workers, Kalua asserted that they do not fall under the protection of the Labour Relations Act.
Given this information, what can Eskom do?
Legally, Eskom is allowed to issue ultimatums to force workers to return, with a failure to comply leading to disciplinary action, an example of which could be dismissal.
Eskom may also engage the Labour Court on an urgent basis to issue an interdict against the unprotected strike. If there is no compliance in that case, the strikers would be in contempt of court and incarceration would be an option.
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