The word “strike” has become synonymous with the South African landscape, especially in terms of workplace disputes.
According to The Labour Relations Act No 66 of 1995 (hereafter referred to as the “LRA” or “the Act”), a strike is defined as “the partial or complete concerted refusal to work, or the retardation or obstruction of work by persons, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee.”
All employees (acting in concert with other employees) have a theoretical right to strike. However, an individual employee cannot strike on his or her own. Moreover, the LRA sets out certain limitations and requirements that must be complied with for a strike to be legally protected or lawful. Should employees not first comply with the requirements set out in the LRA, any strike action taken by them will be unlawful and a basis for disciplinary action to be taken against them.
According to section 64 of the Act, although every employee has the right to conduct a lawful strike, every employer has the right to lock-out such workers without pay.
A protected strike is one which meets all the requirements set out in in the LRA:
- the subject matter of the dispute must be legitimate;
- the procedural requirements must be complied with before the strike’s commencement.
The provisions require that:
- A dispute must have first been referred to a Council or the CCMA;
- A certificate that a dispute remains unresolved must have been issued, alternatively, 30 days must have elapsed since the referral to the CCMA; and
- A written notice of a strike must have been given to the employer 48 hours prior to the strike taking place.
If a strike is protected, theoretically, no adverse consequences should result for employees who participate in protected strike action. However, the employees may still be liable for acts of misconduct and breach of the employer’s disciplinary code.
It is also important to note that employees are protected from being dismissed on the sole reason that they participated in a protected strike.
If the protected strike action becomes violent, there are steps that an employer can take. Employers can approach the Labour Court to interdict the unlawful or even undesirable behaviour and may institute disciplinary action against the employees who are acting inappropriately.
A strike is unprotected if it does not comply with the necessary sections contained in the Labour Relations Act. A court may grant an interdict against an unprotected strike and order the payment of compensation for any loss that can be attributed to the strike. Participation in an unprotected strike may also constitute a fair reason for dismissal.
A lock-out is a mechanism available to an employer to exclude employees from the workplace, in order to compel them to accept a specific demand of the employer relating to a matter of mutual interest. This action must also meet the provisions in section 64 of the LRA.
The Labour Counsel offers specialist training and assistance to both minimize union involvement in your business and prevent the headaches occassioned by striking workers. If you feel that your company may be at risk from external influences, contact us sooner rather than later.