Strike season: a survival guide

Knowledge is power, so brush up on these strike FAQs supplied by Cliffe Dekker Hofmeyr so that you are prepared for employee unrest.

What is a strike?
The Labour Relations Act, No 66 of 1995 (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 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”

A strike can take the form of:
• A partial or complete refusal to work
• A ‘go slow’ where employees are working slowly to put pressure on an employer to comply with a demand
• A ‘grasshopper’ strike. This happens when the employees go on intermittent work stoppages about the same demand (i.e. strike, return to work, strike again) but always in conjunction with the defined purpose of attempting to resolve a mutual interest issue existing between the parties.

The disgruntled employees will normally express the purpose of a withholding of work in some form of a demand made to the employer.

Does a work stoppage constitute a strike?
A work stoppage is different to a strike. The difference between a work stoppage and a strike is that there is no demand made by the participants in a work stoppage, the participants simply stop working.
The distinction between a work stoppage and a strike is an important one as it has an impact on the types of remedies available to the employer when such conduct occurs.

Who may go on strike?
All employees (acting in concert with other employees) have the right to strike. An individual employee cannot strike on his or her own. The LRA, however, sets out certain limitations and requirements that must be complied with for a strike to be protected.

What is a protected strike?
A protected strike is a strike that complies with the requirements in the LRA, where the subject matter of the strike is legitimate and procedural requirements are complied with prior to the strike commencing.

If a strike is protected, no adverse consequences may result for employees who participate in protected strike action. Those employees are indemnified from claims for breach of contract $or delict and for damages suffered by the employer pursuant to a protected strike. Importantly, employees are protected from dismissal for participating in a protected strike.

What procedural requirements must be complied with for a strike to be protected?

The issue in dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or Bargaining Council.

Before a strike notice is issued:

  • 30 days must lapse from when the dispute was received by the CCMA or Bargaining Council; or
    A certificate must be issued stating that the dispute remains unresolved
  • A written notice stipulating the commencement of the strike must be issued to the employer at least 48 hours before the strike commences

What disputes can employees strike over?
Although the right to strike is a constitutional right, s65 of the LRA provides limitations on the right to strike. In terms of this section, employees are prohibited from striking if they are:

  • Bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute
  • Bound by an agreement that requires the issue in dispute to be referred to arbitration
  • Engaged in an essential or maintenance service

In addition, s65 prohibits employees from striking over an issue in dispute that can be referred to arbitration or the Labour Court in terms of the LRA or other employment law. The LRA distinguishes between disputes that can be resolved by arbitration or adjudication (rights disputes) and disputes that can be resolved by the exercise of economic power (interest disputes). Employees may not strike over rights disputes.

The limitations in s65 are equally applicable to lock-outs.

Can an employer dismiss employees for participating in a protected strike?

No. A dismissal in such circumstances would constitute an automatically unfair dismissal. However, misconduct during a protected strike may be the subject of appropriate disciplinary action.

What steps can an employer take if the protected strike action becomes violent?

Employers can approach the Labour Court to interdict unlawful behaviour.

The employer may also institute disciplinary action against the employees who are acting unlawfully.

The Labour Court is still to determine whether or not a protected strike could lose that status where the violence is extreme and uncontrollable.

Can an employer dismiss employees as a result of operational requirements flowing from a protected strike?

Although employees are protected from dismissal for participating in protected strike action, the LRA does not preclude employers from dismissing employees based on operational requirements.

However, in circumstances where the intention of a strike is to put financial pressure on an employer’s business, an employer will have to prove that the main reason for the dismissal was the operational requirements of the employer and did not relate to employees’ participation in the protected strike and that the reason for the dismissal and procedure followed was fair.

The employer will also have to show that it considered alternatives to retrenchment and paid attention to letting the outcome of the strike be determined by the normal exercise of economic power.

What remedies are available to an employer if strike action is unprotected?

Unprotected strike action may be interdicted by the Labour Court on application. The LRA provides for an expedited process in such an event. Employers may also take disciplinary action against employees for participating in unprotected strike action. The Labour Court may also order the payment of compensation for loss arising from the unprotected strike after having regard to a number of factors, including the “financial position of the employer, trade union or employees”.

Can an employer dismiss an employee for participating in unprotected strike action?

Although participation in an unprotected strike constitutes misconduct, dismissal may not necessarily be the appropriate remedy. The Code of Good Practice: Dismissal sets out various considerations when determining the fairness of the dismissals. These considerations include whether “the strike was in response to unjustified conduct by the employer.”

Is an employer required to pay employees during a strike?

No. The principle of “no work no pay” applies. Should an employer provide accommodation or meals to employees in the ordinary course of employment, the employer is entitled to suspend such services at the commencement
of the strike. However, if the employees or their trade union specifically request a continuation thereof, these services should be continued, with the proviso that the employer can make the appropriate deductions, if it has consent, once the strike is over, or it would have to sue for such amounts. Keep a strike diary detailing all incidents relating to the strike including incidents of violence, intimidation and damage to property

  • Obtain written and signed statements of witnesses detailing violence, intimidation and damage to property
  • Obtain clear photographic and video evidence
  • Keep evidence where the trade union was informed of the violence, intimidation and/or damage to property

Source: www.cliffedekkerhofmeyr.com

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