What to do when your employees want to go on strike or participate in protest action
Do employees have the right to go on strike?
In terms of the Constitution of the Republic of South Africa, 1996 (the Constitution) employees have the right to strike.
Section 23(2) of the Constitution states that:
Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
Before the Constitution, employees were free to strike, but did not have a right to strike. This meant that the law did not protect them if they went on strike. They could be dismissed because in terms of the common law a strike breaches the contract of employment.
The Labour Relations Act 66 of 1995 (LRA) protects employees who participate in a strike from being dismissed, provided the strike complies with the type of dispute and the procedures that are set out in the LRA. These strikes are known as ‘protected strikes’.
Where employees take part in a strike that does not comply with the requirements of the LRA, they run the risk of engaging in an ‘unprotected strike’, which has consequences.
What is a strike?
The LRA defines a strike as “The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and any reference to “work” includes overtime work, whether it is voluntary or compulsory.”
In terms of this definition employees will be on strike if:
- They stop work completely; or
- There is a partial refusal to work.
There will be a partial refusal to work if, for example, they work slower than normal (go-slow) or if the employees refuse to work overtime (overtime ban), whether or not the overtime work is voluntary or compulsory.
The word “concerted” means that the employees must act together in their refusal to work. If a single employee stops working, it will not amount to a strike.
The refusal to work must be in order to sort out a dispute about any matter of mutual interest between an employee and an employer where the parties have been unable to reach an agreement through collective bargaining and conciliation by the CCMA or a bargaining council.
What is a matter of mutual interest?
Labour disputes can be broadly classified into disputes of right and disputes of interest. Each involves a different procedure to process.
An interest is something, which a person wants, but is not entitled to yet. Interest disputes involve negotiation. If agreement is not reached at a conciliation hearing, and where it concerns more than one employee, the parties involved may resort to the exercise of industrial power in the form of strikes and lockouts to achieve their interests.
Examples of issues that are disputes of interest:
- Wage disputes – for example, a wage demand for a 10% increase;
- A dispute over a change to terms and conditions of employment.
Are there circumstances or issues over which employees cannot strike?
In terms of section 65 of the LRA employees cannot strike under the following circumstances:
- Where there is a collective agreement that says employees who are bound by the collective agreement cannot strike in respect of the issue that the employees and employers are in dispute about.
- Where an agreement says that the dispute must be referred to arbitration.
- Where the employees have the right to refer the dispute to arbitration or the Labour Court in terms of the LRA (e.g. an unfair labour practice or an automatically unfair dismissal dispute). This does not include a dispute about organisational rights. In organisational rights disputes, registered trade unions, have the option to refer the dispute to arbitration or to go on strike in the event that no agreement has been reached to resolve the matter at conciliation.
- If there is an arbitration award, collective agreement or a determination in terms of the Basic Conditions of Employment Act 75 of 1997 that controls or regulates the issue in dispute. A determination made in terms of the Wage Act that regulates the issue in dispute, will bind the parties to it for the first year of that determination.
- Employees engaged in essential services are excluded from taking part in strike action unless they are subject to a minimum services agreement. Likewise, a determination by the Essential Services Committee on whether part or the whole of an employer’s business is a maintenance service, may specify whether all or a specific number of these employees are prohibited from taking part in strike action.
- Where the strike is based on an unlawful demand.
What is a protected strike?
A protected strike complies with the type of dispute and procedure that is required in terms of section 64 of the LRA.
A strike will be protected if:
- The issue in dispute or circumstances (see above) are such that strikes are permitted.
- The dispute has been referred to a bargaining council or the CCMA for conciliation and-
- The matter remains unresolved after conciliation and a certificate of outcome is issued by the CCMA or the bargaining council; or
- Where, despite the referral to the CCMA or bargaining council, the matter has not been heard and 30-days have passed without any agreement to extend this period by the parties concerned (no certificate of outcome is necessary).
- The employer in the private sector is given at least 48 hours’ notice of the strike.
How are employees protected if they take part in a protected strike?
Employees who take part in a protected strike are protected from dismissal.
If an employer dismisses an employee for participating in a protected strike, such a dismissal may be found to be automatically unfair and the employee may refer the dismissal to the CCMA or a bargaining council for conciliation, followed by a referral to the Labour Court for adjudication in the event that the dispute remains unresolved.
All the usual rules for misconduct apply during protected strike action. Employees found to have committed acts of gross misconduct during a strike are not protected from dismissal.
An employer is entitled to employ replacement or “scab workers” during a strike (unless the whole or part of the employer’s services has been designated as a maintenance service, or there is an offensive lockout by the employer).
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 the employer may reclaim the cost of this after the strike.
What is an unprotected strike?
If employees go on a strike without following the procedures or for the permissible reasons or circumstances that are required by the LRA, such a strike is considered to be an unprotected strike. This type of strike is also called a “wildcat strike”.
What will happen if employees go on an unprotected strike?
The consequences of engaging in such an unprotected strike include:
- The employer may apply to the Labour Court for an interdict to stop employees from taking part in the strike. An interdict is an order of the Labour Court that prevents the employees from continuing to take part in the strike.
- The Labour Court can order the union to pay the employer for any financial losses suffered as a result of the strike.
- Taking part in an unprotected strike is considered to be a fair reason to dismiss an employee in terms of the LRA provided the employer complies with the required standards of procedural and substantive fairness.
What is a lock-out?
Section 64(1) of the LRA states that:
…every employer has recourse to lock-out….
The LRA allows employers to physically keep employees out of the workplace during industrial action provided certain procedures are complied with, (these procedures are contained in sections: 64; 65; 67 & 68 of the LRA). The CCMA or a council must conciliate the dispute. A certificate must be issued stating that the dispute has been unresolved.
An ‘offensive lock out’ is where an employer locks employees out following a deadlock in negotiations and in order to compel the employees to accept a demand in respect of any matter of mutual interest between the employer and the employees. This takes place before the union goes on strike and requires the employer to give the trade union or the employees 48 hours’ notice of the lock-out. In this case the employer may not use replacement labour to replace the employees subject to the lock-out.
A ‘defensive lock out’ is where an employer locks employees out after the employees, who are members of a registered trade union, have commenced with strike action. In this case replacement labour may be used.
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