Every worker has the right to strike, and every employer has the option to lock out workers, if –
- a dispute has been referred to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
- a certificate that a dispute remains unresolved has been issued;
- 30 days have elapsed since the referral; and
- 48 hours’ written notice of a strike is given to
a. the employer; or
b. a council (if the dispute relates to a collective agreement to be concluded in a council); or
c. to an employers’ organisation (if the employer is a member of an organisation that is a party to the dispute); or
- 48 hours’ written notice of a lockout is given to
a. the trade union; or
b. to the workers (if they are not trade union members); or
c. a council (if the dispute relates to a collective agreement to be concluded in a council).
During legal strikes workers may not –
- be dismissed; or
- have civil legal proceedings brought against them.
During legal strikes employers –
- do not have to pay workers, unless workers ask that payment in kind (accommodation, food, basic amenities) be continued; and
- may fairly dismiss a worker for misconduct or for operational needs.
After a strike has ended, an employer may recover the monetary value of payment in kind through civil proceedings in the Labour Court.
During legal lockouts, employers may –
- not have civil legal proceedings brought against them during legal lockouts; and
- recover the monetary value of payment in kind through civil proceedings in the Labour Court after legal lockouts.
Special Procedure for Refusal to Bargain
When a party refuses to bargain, an advisory award must be obtained before a strike can be held. An award cannot force a party to bargain.
When Strike or Lockout Procedures Do Not Apply
Strike or Lockout Procedures do not apply if –
- members follow the procedure in a council’s constitution;
· a strike or lockout follows a collective agreement procedure;
- workers strike in response to an illegal lockout;
· employers lock workers out in response to an illegal strike; and
- employers one-sidedly change workers’ working conditions and refuse to restore them.
Illegal Strikes and Lockouts
Strikes and lockouts will be illegal if –
- a collective agreement or arbitration award binds the parties;
- an agreement must be referred for arbitration or to the Labour Court;
- a wage determination binds the parties and it is less than 1 year old; or
- the parties are providing an essential or maintenance service.
Labour Court Action
If a strike or lockout is illegal, the matter must be referred to the Labour Court, which may grant an interdict or a restraining order.
When workers strike in support of a legal strike held by other workers, it is called a secondary strike.
Secondary strikers must give their employers or employers’organisation 7 days’ notice of their intention to strike.
A secondary strike cannot be held if –
- the dispute has been referred to a council;
- the workers work within the registered scope of the council; and
- they have a material interest in the dispute.
A registered trade union may authorise its members and supporters to picket. The aim of picketing is to peacefully support a legal strike or to oppose a lockout.
Pickets may be held –
- in public access areas outside an employer’s premises; or
- inside an employer’s premises (with the employer’s permission).
The parties or the CCMA must agree on the picketing rules.
Any disputes on picketing rights may be referred to the CCMA.
Records to be Kept by Employer
All employers must keep records of the details of strikes, lockouts or protest actions according to the requirements of –
- collective agreements
- arbitration awards
- Wage Act determinations
All employers must keep the original or reproduced records –
- for 3 years from the date of an event; or
- from the date of an event; or
- from the end of a specified period.
All employers must submit records when requested by –
- a bargaining council; or
- commissioner; or
- any dispute resolution agent
Labour Relations Act 66 of 1995
By: Eljo van der Walt (LL.B, LL.M)