Should teachers have the right to strike? The expedience of declaring the education sector an essential service
CITATION: Calitz, K. & Conradie, R. 2013. Should teachers have the right to strike? The expedience of declaring the education sector an essential service. Stellenbosch Law Review = Stellenbosch Regstydskrif 24(1):124-145.
The original publication is available at https://journals.co.za/content/journal/ju_slr
Concern about the impact of teachers' strikes on the right of children to basic education has led to calls that education should be designated an essential service. The authors argue that this is not feasible as it is not likely that consensus will be reached by the social partners at the National Economic Development and Labour Council ("NEDLAC"). In the event that legislation to this effect is adopted, the limitation on teachers' right to strike will be open to constitutional challenge. In the light of the International Labour Organisation ("ILO")'s narrow definition of essential service and the explicit exclusion of teaching from essential services, such a limitation will in all probability be found to be unconstitutional. Prohibitions on teachers to strike in British Columbia and Germany indicate that teachers do not desist from striking and that the courts are increasingly coming to the aid of teachers who are prohibited from striking. Proposals to minimise the impact of strikes on pupils include public pressure (inter alia by way of public hearings scheduled by the Portfolio Committees on Education) to persuade SADTU to conclude a collective bargaining agreement to limit strikes by teachers. It is proposed that this collective agreement should be to the effect that teachers should neither strike during the four weeks leading up to the exams nor during the period while pupils are writing their exams. It is proposed that Matric teachers should not strike at all. An amendment to section 20(1)(a) of the South African Schools Act 84 of 1996 would give governing bodies of schools the power to negotiate with teachers at a particular school on measures to limit the impact of an impending strike on pupils. Proposed amendments to the LRA include a second round of conciliation by the Director of the CCMA, should it be in a public interest to prevent a strike. This measure could be instrumental in limiting strikes in the education sector.