Basic Conditions of Employment Amendment Act 7 of 2018

Labour Relations Amendment Act 8 of 2018

Labour Relations Act 66 of 1995

LRA7.13 Form

LRA7.11 Form

[vc_row][vc_column][vc_column_text]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:[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column css=”.vc_custom_1548227501483{background-color: #dddddd !important;}”][vc_column_text]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.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]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.

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[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]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:

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What to do when your employees want to go on strike or participate in protest action

Notice of Termination due to retrenchment

Basic Conditions of Employment Act Post 2018 Amendments

[vc_row][vc_column][vc_row_inner][vc_column_inner][/vc_column_inner][/vc_row_inner][vc_column_text]Which institutions can resolve workplace disputes?

 

An employee may challenge a decision taken by an employer following a disciplinary hearing or incapacity enquiry.

 

Disputes must be referred to the right place. Depending on the type of dispute, there are a number of institutions where disputes may be referred.

 

A number of Dispute Resolution Institutions exist, some which were established in terms of labour legislation, and others which have powers to determine employment related disputes. In brief, these institutions are:

 

• The Constitutional Court;
• The Supreme Court of Appeal;
• The High Court;
• The Labour Appeal Court;
• The Labour Court;
• The Commission for Conciliation, Mediation and Arbitration (CCMA);
• Bargaining Councils;
• Accredited Private Agencies; and
• The Department of Employment and Labour.

 

The Constitutional Court

 

• The main function of the Constitutional Court is to ensure that the supremacy of the Constitution is upheld.
• The Constitutional Court may review any decisions of the Labour Court or Labour Appeal Court or the Supreme Court of Appeal that are unconstitutional.
• Decisions of the Constitutional Court are binding on all other courts.

 

The Supreme Court of Appeal & The High Court

 

• The Supreme Court of Appeal hears and determines appeals against any decision of a High Court.
• Decisions of the Court are binding on all lower courts.
• Decisions of the High Courts are binding on Magistrates’ Courts within the respective areas of jurisdiction of the High Courts.

 

The Labour Appeal Court

 

• The Labour Appeal Court is superior to the Labour Court, and both courts are superior to the CCMA and bargaining councils.
• The Labour Appeal Court is the final court of appeal in respect of all judgments and orders made by the Labour Court in respect of the matters that fall within its jurisdiction.
• A decision of the Labour Appeal Court is binding on the Labour Court.
• On constitutional issues an appeal will go to the Supreme Court of Appeal (SCA) with final confirmation of decisions on a constitutional issue being taken to the Constitutional Court.

 

The Labour Court

The intention of the drafters of the Labour Relations Act 66 of 1995 (LRA) was to assign more complex and human rights related labour disputes to the Labour Court.

The Labour Court has the following functions and powers:

• It may determine any dispute that is specifically referred to it in terms of the LRA, the Basic Conditions of Employment Act 66 of 1997 and the Employment Equity Act 55 of 1998.
• It may determine certain appeals and reviews.
• It may make appropriate orders such as: granting interdicts; awarding compensation, damages and costs; and declaratory orders.

 

The CCMA

 

• The CCMA plays a major role in labour dispute resolution.
• In terms of the LRA disputes can be referred to the CCMA or applicable bargaining councils for resolution.
• One of the main functions of the CCMA is to conciliate and arbitrate labour disputes. The majority of disputes referred to the CCMA are unfair dismissal and unfair labour practice disputes, as well as claims for statutory or contractual monies owing to employees.
• The CCMA is a ‘creature of statute’. This means that the CCMA was created by the LRA and can only function within its parameters and the parameters of other labour statutes (which give it specific powers).
• The CCMA therefore cannot resolve any disputes or perform any functions that the LRA or other related statutes do not allow it to perform.
• Rulings and awards issued by CCMA commissioners may be taken on review, or appeal in limited circumstances, to the Labour Court.
• The CCMA is bound by decisions of the Labour Court, the Labour Appeal Court and the Constitutional Court.

 

Refer to CCMA website: https://www.ccma.org.za

 

Bargaining Councils

 

• Bargaining councils are made up of one or more trade unions and one or more employers’ organisations in a specific sector or industry.
• The main purpose of bargaining councils is to promote collective bargaining and facilitate dispute resolution in the sector concerned.
• In terms of the LRA certain disputes between parties to a bargaining council must be referred to the bargaining council for resolution (see s 51(3) footnote 11 of the LRA).
• In those instances the bargaining Council performs the same dispute resolution functions as the CCMA.
• Awards made by bargaining council arbitrators may be taken on review, or appeal in limited circumstances, to the Labour Court.
• Bargaining councils are bound by decisions of the Labour Court, the Labour Appeal Court and the Constitutional Court.

 

Refer to the list of bargaining councils:
https://www.gov.za/sites/default/files/gcis_document/201409/gg31107nn682pg88-91.pdf

 

The Department of Employment and Labour

 

The Department of Labour (now the Department of Employment and Labour) was established in 1994 (replacing the previous Department of Manpower) and its functions include the following:

• developing and formulating labour market policy and proposals;
• administering the Unemployment Insurance Fund and Compensation for Occupational Illnesses and Diseases system;
• administering and monitoring occupational health and safety; and
• developing, enforcing and administering labour legislation.

 

Refer to the list of Department of Employment and Labour website:

https://www.labour.gov.za/

 

The National Economic Development and Labour Council (NEDLAC)

 

• While NEDLAC is not a dispute resolution institution per se, it is one of the institutions created to facilitate the transformation of relationships in the labour market.
• The NEDLAC Act was passed in 1994 after having been agreed to unanimously by all political parties represented in Parliament.
• NEDLAC was launched in 1995 and is “a representative and consensus-seeking body where parties will seek to reach agreement through negotiation and discussion based on proper mandates”.
• The four NEDLAC constituencies are organised labour, government, organised business and the community.
• All proposed labour legislation, regulations and codes of good practice, as well as socio-economic related legislation are considered by NEDLAC before they are introduced to Parliament.
• CCMA demarcation awards (determining whether a particular bargaining council has jurisdiction over an employer and its employees) must also be referred to NEDLAC for comment before being issued.

 

Which institutions can resolve workplace disputes?

Late referrals-condonation applications