ABR 224Lecturer: F.Q. CilliersContact number: 051 401 9282Lecture 14

Introduction• A strike is a very important part of collective

bargaining, because it ensures reasonable bargaining on the part of the employer;

• The “no work – no pay” rule will provide for the limited application and duration of a strike; whilst the market will never allow the employer to give in to unreasonable demands from the employees (trade union).

The Right to StrikeSection 23 of the Constitution of the RSA, 1996;•Guarantees tight to strike subject to general limitation provisions of section 36;•Chapter IV of the LRA, 1995 gives statutory effect to the constitutional protection afforded industrial action by making it much easier to take part in a protected strike.

3 Categories of strikes:–Protected (s67):– conform with procedural requirements of the Act; workers

may not be dismissed for their involvement in protected strike

–Unprotected strikes (s68)– do not conform with the procedural requirements of the

Act; workers may be dismissed for striking, provided the dismissals are fair (procedural and substantive fairness standards still apply)

• Prohibited strikes (s65(1)):•absolutely prohibited by the act;

• Definition of strike:–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 …

• Prerequisites:• Collective action of workers or ex-workers, having a common goal• An act or omission regarding the work-stoppage• Purpose: to remedy a grievance or resolving a dispute …

• Forms of Strike• Economic strike: Improvement of working conditions;• Secondary strike (Sympathy strike): Pressure on other Employer;• Go-slow: Deliberate retardation/slowing down of work;•Work to rule: Working strictly according to pre-set rules;• Sit-in strike: Workers obstruct the workplace disturbing entrance.

• Prohibited Strikes: no person may take part in industrial action in any of the following circumstances:

–Collective agreement prohibiting industrial action

– Issue subject to compulsory arbitration OR any party has the right to refer the matter for arbitration or Labour Court

–Employed in essential services OR a maintenance worker

–May not strike within 1 year of sectoral determination that regulates the matter in dispute

–Where there is a Binding arbitration award, collective agreement, ministerial determination in place that regulates the matter.

• Essential Services•A service which interrupted can endanger the life, personal safety or health of the whole or any part of the population•Parliamentary service•South African Police Services

• Essential Service Committee (ESC) will determine whether a service will be classified as an essential service and can refer the matter for conciliation and compulsory arbitration.

• Maintenance Services:• If the interruption of that service has the effect of material physical destruction to any working area, plant or machinery.

•For example: interruption of the removal of underground water in a mine shaft during work stoppage may have the effect of flooding the workplace to the extent that mining the shaft becomes impossible

PROTECTED STRIKES:• Protected strikes:• 1995 LRA prescribes procedures that must be complied to• Distinguish between generally applicable procedures and

deviations in respect of specific issues and circumstances

• Procedure for protected industrial action:–Dispute must be referred to council or CCMA (step 1)–Conciliation: a certificate of non resolution has been issued (step 2)–Employer/union to five other party 48 hours’ written notice before commencement of strike or lock-out (if the State is the employer 7 days’ notice is required) (step 3)–Protected strike/lock out may commence after expiry of notice period

• Special procedure: No need to comply with statutory requirements:

• Refusal to bargain – advisory award from council before notice to strike;

• In response to an un-procedural lock-out;• If lock-out is in response to un-procedural strike;• Parties to dispute are members of a bargaining (or

statutory) council which has dealt with the matter according to its constitution;

• Collective agreement for procedure for industrial action;

• Employer has unilaterally amended conditions of employment – employees may strike 48 hours after notice.

• Consequences of strike•Protected strikes:• EE may not be dismissed;• Participation does not give rise to

delictual/criminal consequence (EXCEPT FOR MISCONDUCT);• “No work – no pay”;• Any furtherance of industrial action will not

constitute an offence;

•SCAB Labour• May not be employed in maintenance

service OR in the case of an offensive lock-out.

• Unprotected or Prohibited Strikes• Substantive reason for dismissal;• LC will have exclusive jurisdiction & can

interdict strike action;• LC can issue compensation order for any

loss suffered due to strike, taking into consideration:• Attempts made to comply with provisions;• Premeditated strike?• In reaction to unfair conduct?• Compliance with LC order?• Interests of orderly collective bargaining;• Duration of strike;• Financial position of parties.

• Lock-Outs must comply with the same requirements as a protected strike and the same consequences will apply vice versa.