Definition of a ‘strike’
The partial or complete
concerted refusal to work, or the retardation or obstruction of work, by
persons who are or have been employed by the same employer or by different
employers, for the purpose of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between employer and employee, and
every reference to work in this definition includes overtime work whether it is
voluntary or compulsory.[1]
The right to strike
The constitution in section
23 (2) (c) states that every worker has the right to strike,[2]
and section 64 (1) of the Labour Relations Act states that every employee das
the right to strike.[3]
This right to strike is a powerful economic weapon that employees may use
against their employers to coerce employers to agree to their demands.[4]
Requirements for protected
strikes
General
In order to enjoy the protection
of the act, the strikes must comply with the procedures. Firstly, the issue I
dispute must be referred either to a bargaining council or to the CCMA for
conciliation.[5] Secondly, a certificate
stating that the dispute remains unresolved must be issued to or,
alternatively, a period of 30 days must elapse from the date of the referral of
the dispute.[6] Finally, the other party
or parties to the dispute must be given at least 48 hours (or 7 day notice
where the state is the employer) written notice of the commencement of the
strike.[7]
Exemption From section 64
(1) pre-strike procedures
An employer or employee need
not comply with the statutory conciliation and notice requirements.[8]
Council procedures and agreed procedures, the first two categories of exemption
give effect to the philosophy of self-governance embodied in the act.[9]
Where parties have chosen to regulate their disputes through collectively
agreed procedures (within or outside bargaining councils), their choice is
respected and they are not require to invoke the statutory procedures.[10]
Failure to comply with the
pre-strike procedures set out in a collective agreement, however, does not
render a strike unprotected if the employees follow the statutory procedure
instead.[11]
Secondary strikes
Definition of a secondary
strike
A strike or conduct in
contemplation or furtherance of a strike, that is in support of a strike by
other employees against their employer but does not include a strike in pursuit
of a demand and referred to a council if the striking employees, employed
within the registered scope of that council, have a material interest in the
demand.[12]
The definition of a
secondary strike set out in section 66 of the LRA, warrants closer inspection,
involves conduct that adhere to the definition of a strike, the secondary
strike must be partial or complete refusal to work for the purpose or remedying
a grievance or resolving a dispute in respect of a matter of mutual interest
between another employer and employee.[13]
Procedural requirement for a
secondary strike
Two express requirements in
respect of secondary strike, the primary strike itself must be protected,[14]
and the secondary employer, or the employers’ organisation to which it belongs,
must receive at least 7 days written notice.[15]
The right to picketing
Picketing is often seen as a
necessary corollary to the right to strike. Section 69 (1) of the LRA provides
that a registered trade union may authorise a picket by its members and
supporters for the purpose of peacefully demonstrating in support of any
protected strike, or in opposition to any lock-out.[16]
Unregistered unions, and employees acting on their own, have no power to
authorise a picket.[17]
Recognition of the right to
picket also reflects a society’s commitment to the fundamental human rights of
freedom of expression and freedom of assembly. Both freedoms are guaranteed in
South Africa’s Constitution, together with an express right to demonstrate, to
picket and to present petitions.[18]
Thus any provisions in the act, and any rules drawn upby the CCMA, that have
the effect of restricting these rights must be able to surmount the imitation
clause of the constitution.[19]
Balloting
A strike had to be protected
by a ballot, this allowed employers to interdict strikes if the ballot
procedures were in any wh[20]at
defective, thus serving to increase the incidence of illegal strikes, heighten
tensions and ultimately bedevil the resolution of disputes.
[1]S213, LRA 66of 1995 the act defines strike as ‘the partial or
complete concerted refusal to work, or the retardation or obstruction of work…’
[2]S23 (2) of the constitution provides that ‘every worker has the
right to strike’.
[3]S64 (1),LRA states that that ‘every employee has the right to
strike’.
[4]Eds van der Walt, le Roux and Govindjee Labour law in Context (2012)
203, this right to strike is a powerful economic weapon to coerce employers to
agree to their demands.
[5] Du Toit, Bosch, woolfrey, Godfrey, Cooper, Giles, C Bosch and
Rossouw Labour Relations Law A Comprehensive Guide 5 ed (2006) 229, in order to
enjoy the protection of the act, strikes must comply with procedural
requirement.
[6] Ibid.
[7] Ibid.
[8] S64 (3),LRA circumstances under which parties may dispense with
statutory procedures.
[9] S64 (1), LRA council procedures and agreed procedures.
[10]Du Toit, Bosch, woolfrey, Godfrey, Cooper, Giles, C Bosch and
Rossouw Labour Relations Law A Comprehensive Guide 5 ed (2006) 303.
[11] Ibid.
[12]Eds van der Walt, le Roux and Govindjee Labour law in Context (2012)
210,secondary strike also known as a sympathy strike means cnduct in
contemplation or furtherance of a strike…’
[13]Du Toit, Bosch, woolfrey, Godfrey, Cooper, Giles, C Bosch and
Rossouw Labour Relations Law A Comprehensive Guide 5 ed (2006) 317.
[14] S66 (2) (a) LRA, primary strike must itself be protected.
[15] S66 (2) (b) LRA, secondary employer must receive at least 7 days
written notice.
[16] Du Toit, Bosch, woolfrey, Godfrey, Cooper, Giles, C Bosch and
Rossouw Labour Relations Law A Comprehensive Guide 5 ed (2006) 213,registered
trade union may authorise apicket by its members and supporters.
[17] Item 2(1) of the code of Good Practice,indicates that unregistered
unions and employes cannot authorise a picket.
[18] SS17 and 18 of the Constitution, freedom of assembly ad freedom of
expression are both guaranteed in the constitution.
[19] S36 of the Constitution, limitation clause.
[20]Du Toit, Bosch, woolfrey, Godfrey, Cooper, Giles, C Bosch and
Rossouw Labour Relations Law A Comprehensive Guide 5 ed (2006) 304, ballot
procedures were in any way defective, thus serving to increase the incidence of
illegal strikes.
Unprotected Strikes
What is an
unprotected strike?
It is a strike that does not comply with the provisions
of section 64 of the Labour Relations Act 66 of 1995.[1]
An employer’s
rights and remedies during an unprotected strike
1.
No work no pay
Workers that go into an unprotected
strike are not entitled to any payment from the employer.[2]
2.
Interdiction of the picket
Picket: A person or group of people who stand outside a workplace or other venue as a protest or to try to persuade others not to enter during a strike. Pickets during an unprotected strike are not permitted. [3] The employer or any member of the public may interdict the picket and the police may disperse the picket.[4
3. Replacement Labour and the use of non strikers
The employer may employ replacement labour.[5] It
may also deploy non-strikers to do the work of the strikers and discipline them
if they refuse to do such work.[6]
4.Interdiction of the strike
If a strike or proposed strike is
unprotected, the employer may apply to the Labour Court for an order
restraining any person (union or workers) from
participating in the strike or from organizing the strike.[7] The court may not grant an
interdict or restraining order unless the employer has served full application
these being a notice of motion and relevant affidavits on the union at least 48
hours before hearing date.[8]
In County Fair Foods v HLCCAWU [2006] 5 BLLR 478 (LC)[9]the court held that in a case where an
employer is interdicting striking essential or maintenance service workers, he
is not bound by these statutory notice periods
5. Dismissal or other discipline of the strikers
Participation in an
unprotected strike is misconduct and the employer may dismiss otherwise
discipline workers for such.In South
African Clothing Textile Workers Union (SACTWU) and Others v Yarntex (Pty) Ltd
t/a Bertrand Group[10]Employees dismissed
from employment on account of having participated in a strike at plant level
contrary to the provisions of the constitution of the National Textile
Bargaining Council.
Employees had previously been involved in an unlawful
strike action in respect of which they were given final written warnings.
Before dismissal employer issued an ultimatum to each shift to recommence work
by a certain time. The employees ignored the ultimatum in spite of advice from
their union to the contrary. Court Held that the dismissal of the employees was
both procedurally and substantively fair.
6.
Employer’s procedural obligations during an
unprotected strike
The purpose of the procedure is to get strikers to
return to work and possibly avoid dismissal.[11]The employer is required
to meet the union, issue the workers with a fair ultimatum to return to work
and give the workers a hearing before any decisions against the workers are
made.[12]
7.
Re- employment of dismissed unprotected
strikers
Even if the union is of the view that the dismissal
of the workers was unfair and intends instituting legal proceedings, the union
should as soon as possible attempt to mitigate the situations of the workers by
persuading the employer to re-employ the strikers. Often the employer itself, in
the dismissal notices, invites the dismissed workers to re-apply for their
jobs. The employer is entitled to set reasonable conditions for re-employment.
[1]66 of 1995.
[2] Trade Union and the Law in
South Africa, Cohen, Rycroft, Whitcher 73.
[3] Ibid.
[4] Ibid.
[5]Ibid.
[6]Ibid.
[7]Trade Unions and the Law in
South Africa, Cohen, Rycroft, Whitcher 73.
[8]Ibid.
[9]County Fair Foods v HLCCAWU [2006] 5 BLLR 478 (LC).
[10]South
African Clothing Textile Workers Union (SACTWU) and Others v Yarntex (Pty) Ltd
t/a Bertrand Group (PA07/10) [2013] ZALAC 6; (2013) 34 ILJ 1931 (LAC) (28
February 2013).
[11]Trade Unions and the Law in
South Africa, Cohen, Rycroft, Whitcher.
[12]Ibid.
