THEME 8: Strikes & Lock Outs

Collective bargaining
- Strikes (employees) & Lockouts (employer) – (more) tools to encourage Collective
Bargaining
Right to Strike (Par 15.2)
- Right to strike guaranteed by S 23 of Constitution (subject to Sec 36 limitation
- Labour Relations Act gives statutory effect to this constitutional right – Chapter 4 of
LRA (Secs 64-77)
- LRA classifies strikes into 3 categories:
✓ Protected strikes (Sec 67 of LRA)
- meaning? Complied with procedure in LRA / CA or Cons of BC
- consequence of participation- may not be dismissed
✓ Unprotected strikes (Sec 68 of LRA)-
- meaning?
- consequence of participation- may be dismissed (Dismissal to still be fair)
✓ Prohibited (Sec 65 (1) of LRA)-
- meaning? Example: Essential services
- Consequence of participation- may be dismissed
Definition of strike (par 15.3)

Section 213 – P292

Elements:
- Collective action: partial/complete concerted action cannot be individual -> Common goal
- Actions: refusal to work (incl overtime), or retardation, or obstruction of labour

- Persons: employed/ have been employed by same or different employer(s)

- Purpose: remedying of a grievance in respect of any matter mutual interest between
employer and employee
Forms of strike action (Par 15.3)
✓ Economic
Withdrawal of labour to improve conditions of employment
✓ Secondary strikes (sympathy strikes)
Employees strike not because of their own employment conditions but in
support of other employees
✓ Go slow
Reduction in pace of work, a retardation of production
 ✓ Work to rule
Working strictly to rules according to prescribed rules with result that pace of
work reduces
✓ Sit in
Employees occupy the workplace to obstruct and impede admission to the
workplace
Prohibited Strikes (Par 15.4)
- Prohibited by Col Agreement (relating to issue at hand)
- Dispute subject to compulsory arbitration in terms of an agreement

- Dispute subject to arbitration ito LRA (Dispute of right)

- Essential or maintenance services
- During 1st year of sect determ and issue regulated - BCEA
- Issue in dispute regulated by Arbitration Award /Collective Agreement/Ministerial
Determination
Essential services (Par 15.4.1)
Essential Service workers may not strike
Definition: Life, personal safety or health of sections or whole of population endangered –
service interrupted

- SAPS
- parliamentary service → (Sec 74 -compulsory dispute resolution)
- ESC – to determine whether a service (full or part thereof) is essential or not (Sec 70) – See
duties

- Maintenance services (par 15.4.2) – Defnition: Interruption of service has the effect of
material physical destruction to any working area, plant or machinery.
- If not CA regarding issue of Maintenance service then can apply ESC suggestions
- (Sec 74 -compulsory dispute resolution)
Procedure for Protected Strikes (Par 15.5)
* See Schematic Illustration on p295 (S64)
- Referral of dispute to CCMA or Barg Council

- Conciliation: certificate of non-resolution or 30 days lapsed

- Notice to employer: 48 hours written notice (7days where State is the Employer)
- Strike starts after expiry of notice period
- (IF choosing Arbitration then cannot strike anymore)

- See instances when procedure (req not to be met) is not required – P295
Legal consequences of a protected strike (par 15.6)
- No dismissal of protected strikers
- Not a delict, breach of contract

- No work no pay (exceptions: payment in kind- for example accommodation or food)

- NB- But, may dismiss for misconduct during strike or for operational requirements- even if
the strike is protected
Consequences of protected strikes (Par 15.6)
- May not be dismissed except if misconduct during strike

- No work no pay
* See other consequences P296
- Labour Court jurisdiction to:
❖ Interdict the strike
❖ Award just & equitable compensation for loss as a result of a strike but certain
factors must be considered- study the factors
❖ May constitute fair reason for dismissal (but fair procedures must be followed) -
P297
❖ LC has exclusive jurisdiction
Other forms of industrial action
- Secondary Strike -> S66
Requirements:

❖ Primary strike must be protected

❖ 7 days notice to own employee ( 14 days if about Operational requirements)
❖ Impact on 2nd employer should not be unreasonable toward the 2nd employer than
the effective impact on 1st employer
- Picketing -> S69
❖ Public expression by employees showing their disapproval to employer in support of
employees
❖ Not on employer premises (except if employer consents)
❖ Must be part of registered T/U
❖ T/U authorised picket
❖ Peachful demonstration
❖ In support of protected strike or opposition of lockout
- Protest Action to defend: Socio-economic interests (s77)

* See table on P301

Lock- out (Par 15.9)

- Sufficient for students to know what a lockout is- don’t have to study the requirements

- Employer’s economic weapon- opposite of strike

- Definition: Exclusion of Employee from workplace by Employee

- Purpose: compel employees to accept offer/ proposal iro matter of mutual interest

- Not a breach of contract by employer

- Defensive (response to strike) vs offensive lockout (Ee first action taken)

- Protected lockout – sec 64 and only if offensive lockout

- If Defensive lockout only give 48 hour notice

 Case law
1.1) Strikes
Modise v Steve’s SparBlackheath 2000 ILJ 519 (LAC)
Facts:
The employees participated in an unprotected strike. The employer issued the strikers with
an ultimatum to return to work or face dismissal. The employees ignored the ultimatum and
were dismissed.
Decision:

1. An employer is obliged to apply the audi alteram partem rule when dismissing strikers,
whether in a formal or informal hearing.
2. The court did not state whether there should be a group hearing or an individual hearing.
3. The court did not indicate whether the hearing should take place before or after the
ultimatum has been issued to the workers.
4. The strikers or their union or representatives must be given a fair opportunity to state their
case.
5. In this case the employer had not observed the audi alteram partem rule before dismissing
the employees, and the dismissals were held to be unfair.

SA Transport & Allied Workers Union & Another v Garvas & Others 2012 33 ILJ 1593 (CC)

Facts:

During a protracted and violent strike in the security sector, the union organized a protest march,
which was regulated by the Gatherings Act 205 of 1993. The protest march turned out to be chaotic
resulting in damage being caused to a number of vehicles and shops. The affected people instituted
a claim for damages against the union in terms of section 11 of the Gatherings Act. The pertinent
question that arose is whether liability could be attributed to the trade union for the damage caused
by the protest march. Furthermore, the court had to decide whether section 11(2) of the Gatherings
Act is unconstitutional.

Decision:

1. The HC and SCA recognized that the Gatherings Act (section 11(2)) provides a defence to
trade unions against incurring liability in such circumstances.
2. In order for the trade union to escape liability they must prove that the actions were not
part of TU’s objectives;
-> the actions were not reasonably foreseeable; and
-> the TU took all reasonable steps to prevent acts & damage.
3. However, both the HC and SCA found that the trade union failed to satisfy these
requirements.
4. Regarding the constitutionality of section 11(2), while the CC found that section 11(2) limits
the constitutional right to gather and protest, this limitation was found to be justifiable in
terms of section 36 of the Constitution.