Can employees take part in protest action to promote or defend socio-economic interests of workers?
Employees (other than those employed in essential or maintenance services) may take part in protest action to promote or defend socio-economic interests of workers during work hours provided certain legal conditions have been met.
Section 77 of the Labour Relations Act 66 of 1995 (LRA) provides for employees to take part in these protests and protects them from dismissal, on condition that:
- A registered union or trade union federation calls the protest action;
- The registered union or trade union federation has served notice on the National Economic Development and Labour Council (NEDLAC) providing the reasons and the nature of the protest action;
- NEDLAC regards the matter as one of socio-economic interest, and suitable for consideration;
- NEDLAC has had an opportunity to consider the matter;
- At least 14 days before the protest action is scheduled to commence, the registered trade union or trade union federation notifies NEDLAC of its intention to proceed with the protest action.
The provisions that apply to employees who embark on a protected strike will apply to employees who take part in protest action, namely:
- They are protected from dismissal.
- If an employer dismisses an employee for participating in lawful protest action, such a dismissal is automatically unfair and the employee may refer the dismissal to the Labour Court.
- All the usual rules for misconduct still apply and are actionable during protest action.
- An employer is entitled to employ replacement or “scab workers” during a protest action (unless part or the whole of the employer’s services has been designated as a maintenance service).
- An employer does not have to pay an employee his/her wages, salary or benefits during a protected strike.
- If the employee’s accommodation and food form part of his/her wages (this is known as payment in kind), the employer may continue to provide the employee with accommodation and food, if this is requested by the employee, but may reclaim the cost of this after the strike.