Every year South African businesses await the so-called “strike season” which businesses so rightfully fear. This is the season when employees down tools and disrupts the workplace in order for the employer to subject to their demands. Dealing with a strike is extremely difficult and proper attention should be given as it impacts on every aspect of the business of an employer and could have far-reaching effects, not only on the financial position of the affected business, but also on the South African – and international – economy as a whole.
Firstly, it is essential to establish what exactly constitutes a strike. Section 213 of the Labour Relations Act defines a strike as follows:
“…’strike’ means 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 distinction should be drawn between the two important guises of a strike, being an unprotected strike and protected strike action. Section 64 of the Labour Relations Act clearly prescribes the requirements for a strike to be protected. Should these requirements not be met, the specific strike action will be deemed to be unprotected. When dealing with an unprotected strike, employees may be dismissed for participating in such unprotected action. In circumstances where the strike action complied with the prescriptions of section 64 it would be deemed to be protected and an employee may not be dismissed for participation. However, should the employees act violently during the strike and in the process intimidate fellow employees and/or cause damage to company property the employer has the right to take the appropriate disciplinary action.
Section 64 does not only recognise the employee’s right to strike, but it also recognises the employer’s recourse to lock out, on condition that the employer complies with the requirements as set out in section 64.
Section 64 requires that:
- The issue that is in dispute was referred to the CCMA or to the relevant Council;
- A certificate of non-resolution was issued by the applicable forum;
- Or, if a certificate has not been issued, 30 days from the date of the referral should have lapsed; and
- Parties can agree to a further extension of 30 days.
Should a certificate to strike be issued by the relevant forum it is required by section 64 (b) that:
“(b) in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless-
(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or
(ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or
(c) in the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or “
In circumstances where the above requirements have not been met and the employees embark on a strike, such action will be deemed to be unprotected and the employer may deal with such action as follows:
- Ascertain what exactly the demands of the employees are to determine the reason(s) for embarking on a strike;
- In the event that the members belong to the relevant trade union the employer should contact the trade union and inform it of its members’ action and request them to address and exhort the members not to continue with the strike action;
- The employer is required to issue ultimatums to every employee to return to work;
- This ultimatum should clearly describe the demand of the employee; what is required from them and by which date they will be required to return to work. The ultimatum should also clearly state that they have embarked on an unprotected strike action and that it may lead to their dismissal. An ultimatum should be clear and in unambiguous terms.
Should the employees, despite the proper issuing of ultimatums, fail to return for duty as usual and not desist from the unprotected strike action, the appropriate disciplinary action might be taken by the employer, subject to all relevant procedures being followed as prescribed by the Labour Relations Act.
The principle of “no work – no pay” applies for all strikes, be it protected or unprotected.
More often than not, strikes within the workplace halt an employer’s business to such an extent that its operations are no longer sustainable, nor profitable. Ultimately, strikes may result in the economic down turn of South Africa which gives rise and contributes to job losses within South Africa.
Unfortunately strike action will – for an indefinite period – continue to form part of our labour dispute mechanisms as there is no indication to the contrary and it is unavoidable for employers to understand how to deal with strike action in order to mitigate the individual (and even global) effect that such action might have on business.
Douw G Breed is a Director at Barnard Inc. Attorneys
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.