'The use of industrial action is often effective in bringing a dispute to an end quickly, or even the threat of a possible strike could act as an incentive to settle a dispute.’ Picture: Bhekikhaya Mabaso
This is the second part of a two-part column in which Michael Bagraim cites the advances in our labour law since the advent of democracy in 1994. (Part One: “An overview of labour relations in South Africa”).
We have the right to strike and the right to recourse to lockout. Our labour law is effectively geared to promote collective bargaining in order to avoid disputes.
There are, however, times when a dispute cannot be avoided and, in particular, when it is a dispute of interest to receive an increase, then the employees, through their unions, have a right to strike.
The use of industrial action is often effective in bringing a dispute to an end quickly, or even the threat of a possible strike could act as an incentive to settle a dispute.
A strike is defined as a general refusal to work. A strike can be either protected or unprotected. For a strike to be protected, a dispute must exist and the parties must have tried to negotiate beforehand. If they are unable to resolve the matter and the unions are properly registered, then they could reach a deadlock.
The deadlock would be declared by receiving a letter from the Commission for Conciliation, Mediation and Arbitration (CCMA) or the bargaining council.
If the parties have not gone through the proper process leading up to a strike, then the strike would be declared unprotected. The employer may go to the Labour Court to stop the exercise of a wildcat strike. If the strike is protected, it must concern a matter of mutual interest between employer and employee.
If the dispute is about a legal right, then the parties cannot go on strike for a legal right; they can go on strike only for an interest.
Once the dispute has been referred to the CCMA for conciliation and if it remains unresolved for 30 days, then it can be referred to as a strike. A 48-hour written notice of a lockout or a strike must be given to either one of the other parties. It should be noted that the state must be given seven days notice of a strike if it is the employer. Refusing to bargain or to recognise a trade union as an agent could lead to a strike.
There are limitations on our right to strike in South Africa. This could take the form of a collective agreement. The parties have agreed that a certain issue in dispute must be resolved through arbitration or be sent to the Labour Court.
If the employer and the employee are engaged in an essential or a maintenance service, then they may not go on strike. An essential service is defined as “a service that, if interrupted, may endanger the life, personal safety or health of any person” (for example, firefighting, correctional services, water supply and air traffic control).
The SAPS and parliamentary service cannot go on strike. Likewise, maintenance services are defined as services whose interruption may cause material, physical destruction to any working area, plant or machinery.
We even have the concept known as secondary strikes, where the employees working for one employer would come out in support of employees at another employer. The primary strike must be protected and seven days’ notice must be given to the employer of the employees taking part in the secondary strike. A secondary strike must be reasonable in that they can show they have an effect on the business of the primary employer.
Employees may not be dismissed because they are participating in a protected strike. However, if employees commit misconduct during the strike, then disciplinary hearings can follow and dismissals can take place. Employers can also, during a strike, embark upon a programme of a retrenchment (dismissals for operational requirements).
It must be remembered that employers do not normally pay employees who are on strike. Many employers take action against employees who are on unprotected strikes and often get interdicts and/or dismiss employees after having warned them a few times. Employers also have the right to claim damages against unions if the strike is unprotected and has caused damages.
During a strike, employees may picket, which means that they can participate in peaceful demonstrations in support of the strike or in opposition to a lockout. A picket can be protected if it authorised by the registered trade unions and is peaceful.
It must be in support of a protected strike or in opposition to a lockout. Pickets are not held inside the employer’s premises unless the employer consents.
Once again, employees may be disciplined or dismissed if they are not peaceful or act in a grossly negligent or criminal fashion.
In cases such as this, the picket itself may be interdicted.
* Michael Bagraim is a veteran labour lawyer.
** The views expressed here are not necessarily those of Independent Media.
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