Strike action: The proper procedure to follow

01 Jun 2022

Section 213 of 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 form by way 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; or
• A ‘grasshopper’ strike whereby the employees go on intermittent work stoppages about the same demand (i.e. strike, return to work, strike again).

A strike takes place to resolve a dispute between the employees and their employer. The dispute must be about something in the employer’s control, for example, wages, improved working conditions and other disputes of mutual interest. Although the right to strike is a constitutional right, section 65 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”; or
• Engaged in an essential or maintenance service.

A protected strike complies with the requirements of the LRA, where the subject matter of the strike is legitimate and procedural requirements are complied with before the strike commences. 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. This is followed by giving a written notice stipulating the commencement of the strike to the employer at least 48 hours before the strike commences.

The consequences of a protected strike

• Employees may not be dismissed for participating in a protected strike. A dismissal in such circumstances would constitute an automatically unfair dismissal.
• Employees may be dismissed for causing damage to the property of their employer, or another person at the workplace, during the strike.
• Employees may be arrested and prosecuted for committing a criminal offence during a strike.
• The principle of “no work – no pay” applies. The employer does not have to pay the employees during a strike. However, the employer must make payments in kind which include food, accommodation and other benefits such as pension, medical aid and so on.
• Employers may appoint replacement labour in response to a strike.

Conclusion

In conclusion, there are various factors to consider when taking strike action and several consequences to follow should proper procedure not be followed.

Contact an attorney at SchoemanLaw for any of your legal needs today. Visit our website at www.schoemanlaw.co.za.

See also:

• “Where is Wally?” – Identification issues in strike interdicts
• Strike violence too easily tolerated and must be outlawed
• Desertion of employees from the workplace
• No work no pay – What do the courts say?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)