The balancing act between the constitutional right to strike and the constitutional right to education

Abstract

While the South African Constitution enshrines both children’s right to a basic education and teachers’ right to strike, conflict between these two often occurs when the way in which teachers’ unions conduct strike actions detracts from learners’ education. This article identifies the parties affected by industrial action in the school context, and then proceeds to examine
educators’ right to strike as defined by the provisions of the Labour  Relations Act. The unique implications of picketing in the education environment are then discussed, covering relevant questions such as where pickets may be held, the issue of picketing rules as well as unprotected
pickets. Even though we are faced with a qualified right to strike as opposed to an unqualified right to education, the South African reality seems to be that striking teachers are handled with kid gloves. It is  therefore concluded that the vast range of existing laws regulating protest action should be applied more effectively. One of the most important aspects should be the picketing rules, which should clearly determine whether picketing in fact contributes to resolution of the dispute, and how learners’ interests and rights may best be actualised.

Keywords: educators; Labour Relations Act; learners; misconduct; peaceful demonstration; picket; picketing rules; right to education; right to strike; teachers’ unions