Employee has the right to participate in a protected strike!

Constitution (S 23) and LRA (S 64)

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 IURI 222
Study Unit 9 : Strikes and Lock-outs

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STUDY OUTCOMES

See p. 74 & 75 in Study guide

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 Strikes: Definition – S 213 LRA
1. Strike - see pg. 430 Textbook

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 purposes 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.

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 Strikes: Definition

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 purposes 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.

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 Strikes: Definition

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 purposes 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.

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 Strikes: Definition

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 purposes 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.

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 Strikes: Components
1. 3 elements
a) Stoppage of work
b) Joint action
c) For recognised purpose

2. NB! Activity has to comply with all elements

to be a strike, otherwise breach of contract!

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 Strikes: 3 components
…partial or complete … refusal to work, or the
retardation or obstruction of work,…

1. Strikes different forms:

a) Economic strike (total stoppage of work)
b) Go-slow
c) Work-to-rule
d) Sit in

2. Has regard to contractual and legal obligations

(Simba v FAWU) – pg 333 Basson textbook

3. 2 exceptions
a) Off duty employees who prevent others from working
b) Concerted refusal to work overtime

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 Strikes: 3 components
…concerted refusal…by persons who are or have been
employed by the same employer or by different employers,

1. Multiple employees refuse to continue their

work to reach common goal (ie minimum
two)
2. An individual cannot strike
3. Must be for common purpose

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 Strikes: 3 components
…for the purposes of remedying a grievance or resolving a dispute…

1. Must be done with the purpose to remedy a grievance with

employer
2. Grievance regarding mutual interest
3. Demand may not expect of employer to do something
unlawful
4. Strike must be done specifically to resolve that dispute
5. New grievances may be added to the original grievance in
dispute
6. Refusal to work for any other reason (ex. Aardklop) will not be
considered a strike
7. When employees reached their goal – stop the strike
immediately
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 Strikes: another component
…matter of mutual interest between employer and employee…

1. A matter that can be addressed through collective

bargaining with employer
2. Work related and concern the employment relationship
a) Terms and conditions of employment
b) Job security of employees
c) Health and safety issues
d) Disciplinary and retrenchment procedures
3. Must be regarding a lawful/legal matter
(TSI Holdings v National Union of Metalworkers of SA (2006))
pg 335 Basson textbook for other cases

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 Strikes: another component
…matter of mutual interest between employer and employee…

4. Secondary strike
a) Sympathy
b) Employees of other employer strike in support of primary
strikers
c) Only allowed if the other employees indeed on lawful strike
d) Secondary strikers may not benefit from strike
e) Primary strikers in employment of other employer

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 Prohibition on strike

5. Substantive limitations
a) Section 65 (page 338-343 Basson textbook)
b) When may strikes not take place?
i. Collective agreement prohibits such
ii. Disputes of right (arbitration and adjudication used)
iii. When matter is regulated by legal document
(arbitration award; sectoral determination; BCEA
determinations)
iv. Essential or maintenance services (NB)

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 Requirements for protection for strike

1. NB! Procedural requirements : Primary strike

1. Refer dispute to a bargaining council or CCMA for conciliation
2. May only strike when commissioner certifies that no resolution were reached;
OR
3. 30 days after referral
4. The dispute as referred to the CCMA must be the reason for the strike (may
add other grievances afterwards)
5. Employer must know what the grievance entails and how to resolve it
6. Strike only possible when employer indicates that he does not intend to
respond to employees’ complaints (stalemate in negotiations)

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 Requirements for protection for strike

1. NB! Procedural requirements : Primary strike

7. After period has lapsed the employer receives 48 hour written notice
of strike (7 days if employer is the State)
8. Notice should indicate the time of the strike
9. Sufficient information necessary to prepare –
• Ceramic Industries (LAC) - page 344 Basson textbook;
• County Fair Foods v Hotel Liquor Catering Commercial & Allied
Workers Union – page 345 Basson textbook
7. Who may now participate in the strike?
• Afrox Ltd v SA Chemical Workers Union (SACWU)– page 346 ;
• Early Bird Farms v Food & Allied Workers Union – page 346
7. See circumstances where the procedure does not have to be
complied with (page 348-349 Basson textbook)

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 Requirements for protection for strike

2. Procedural requirements : Secondary strikes

a) Primary strikers must have followed the procedure

b) Secondary employer receives 7 days notice
c) Must not have an unreasonable effect on the primary employer business
d) If not complied with the requirements – secondary employer get interdict
e) Investigation – by qualified person – determination whether complied with
requirements
f) After investigation court will issue an order (s 66 LRA)

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 Consequences of a protected strike

1. Protection against civil action by employer

a) Employee immune
b) Does not commit delict or breach of contract during strike
c) Immunity does not cover conduct which amounts to an offence (NB)
d) Can stop work to strike peacefully; BUT
e) Any assault, willful damage to employer’s property, intimidation etc. not
covered

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Consequences of a protected strike
2. Protection against dismissal
a) Automatically unfair dismissal (s 187 of LRA)
b) May not dismiss employee BECAUSE he strikes, except if:
i. Employee guilty of misconduct
ii. Based on operational requirements

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Consequences of a protected strike
2. Protection against dismissal (continue)

iii. Determination of reason for dismissal – factual and

legal causality (remember Afrox v SACWU!)
iv. Factual causality – would dismissal happen without
strike?
v. If yes – not automatically unfair
vi. If no – determine legal causality
vii.Was the strike the main reason for the dismissal?
viii.Will depend on the case

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Consequences of a protected strike

2. Protection against dismissal (continue)

ix. How much harm should the employer endure before
operational requirements are valid?
1.Actual economic hardship
2.Likelihood of substantial economic loss

x. Dismissal due to operational requirement only allowed

when business is in immediate danger of falling
bankrupt

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Consequences of a protected strike
3. Right to payment in natura

a) Employer can withhold employee’s salary during strike

b) BUT: Remuneration paid by other method than money
(accommodation and food), should still be provided if
asked
c) Employer can claim return of monetary value thereof

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 Consequences of a protected strike
4. Not obliged to work
• If employees or trade union complied with procedure, court
may not by way of interdict forbid employees to strike or oblige
them to return to work
5. Picketing
• Employees have the right to picket PEACEFULLY

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 Consequences of an UNprotected strike

1. Employer's options
a) Interdict
b) Compensation
c) Discouragement
d) Disciplinary steps
e) Lock-out
f) Dismissal (Item 6-procedure NB)

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 Consequences of unprotected strikes
2. Dismissal of unprotected strikers
1. Item 6 of the Code of Good Practice: Dismissal (page 467-468)
• Substantive and procedural fairness!!
• How serious was the non-compliance and to what extent did
they attempt to comply with the procedure?
• Consult with trade union and issue an ultimatum
• Requirements for ultimatum?

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 Lock-outs: Definition
1. Exclusion of employees from the workplace with
the purpose of forcing employees to comply with
a demand of the employer
2. Force employees to accept a final offer
3. 2 elements
a) Physical exclusion (withhold entry to the workplace)
b) With recognised purpose (until the employees accept
his offer)
4. Procedure for protected lock-out? Exactly the
same as the one for strikes – now only done by
employer
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 Consequences of a protected lock-out

1. Employer that follows the prescribed procedure is

immune to civil action, ex. interdict
2. Employer not obliged to pay salaries
3. May not use replacement labour during lock-out –
except if lock-out takes place due to strike

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Consequences of unprotected lock-out

1. Employees can oblige employer to stop lock-out (by

way of court order)
2. Claim for any justified compensation

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 Picket-Line
1. Form picket line in support of the strike
2. Group of strikers get together at any visible place in
public; OR
3. With the consent of the employer – on the workplace
grounds
4. Employer may not unreasonably refuse consent
5. Labour Court will determine whether the refusal was
reasonable or not
6. Parties will agree on the rules of the picketing

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 Picket-Line

7. No agreement – CCMA commissioner will lay

down the rules
• Take into account the specific circumstances of the
workplace and the relevant code of good practice
8. All other disputes referred to CCMA

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 PRACTISE QUESTION
Twenty employees of a large South African company one day decide that they are
unhappy with their salaries, especially in light of the fact that the number of hours they
work in a month do not justify those salaries. They approach their employer and request
that he gives them all a raise of 10%, but he refuses. The employees then approach their
trade union and disclose their unhappiness. As a result the trade union gives the employer
24 hours’ notice of the intention to strike regarding the increase in the employees’ wages,
stating that the strike will commence after the 24-hour-period has lapsed. By the end of
the 24-hour period the employees commenced with the strike.
Question 1 (10 marks)
By taking into consideration the prescribed procedure of the Labour Relations Act,
ascertain whether this strike is protected or unprotected. Indicate the particular section in
the Labour Relations Act which regulates these circumstances. (Theoretical parts of your
answer will be marked with half marks, application will be marked with full marks).

Question 2 (5 marks)
Suppose the strike was unprotected. By referring to the relevant provisions in the Code of
Good Practice: Dismissal pertaining to dismissal during strikes, determine what the
employer should do if he wants to dismiss the employees fairly. 31
 Practise Question - guideline
Question 1
(NB: please do not forget to use the IRAC/ IPAC method to answer such problem
questions – it makes it easier)

ISSUE:
(Anything along these lines)
Whether serving an employer with a 24 hour notice is sufficient notice to embark on a
protected strike. OR
Whether the employees followed the correct procedure as prescribed in s64 of the LRA
in order for them to go on a protected strike.

RULE/LEGAL PRINCIPLE: Section 64 of the LRA

APPLICATION: see the next slide/s

CONCLUSION: see the next slide/s

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 Practise Question 1 (continued)

APPLICATION:
Section 64 of the LRA prescribes the procedure to be followed to make a strike protected.
Before any steps can be taken by the employees, they first have to express their wishes to the
employer and give him the opportunity to consider it.
Should he refuse the dispute first has to be referred to the CCMA for conciliation
Employees may not strike before the commissioner has issued a certificate to indicate that the
dispute remains unresolved, OR before a 30-day period has lapsed since the dispute had been
referred for conciliation, but without resolution.
After the 30-day period for dispute resolution by way of conciliation has lapsed, the employer should
receive 48 hours’ notice of the intended strike.
This notice has to indicate the specific time the strike would commence (employees are however not
obligated to commence the strike on that specific time).
Please note that it is not enough just to include the BLUE text above, lecturers/markers will
simply tell you that you have not answered the question but only included the rules
(principle/s or the law).
At this point you must also include the FACTS OF THE SCENARIO/QUESTION into the rules
stated above in order for you to give a conclusion. See the next slide
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 Practise Question 1 (continued)
APPLICATION:
Section 64 of the LRA prescribes the procedure to be followed to make a strike protected.
Before any steps can be taken by the employees, they first have to express their wishes to the employer and give him
the opportunity to consider it.
The employees approach their employer asking for a 10% wage increase and the employer refused.
Should he refuse, the dispute first has to be referred to the CCMA for conciliation.
There is no indication that the employees approach the CCMA for conciliation.
Employees may not strike before the commissioner has issued a certificate to indicate that the dispute remains
unresolved, OR before a 30-day period has lapsed since the dispute had been referred for conciliation, but without
resolution.
Because the employees did not approach the CCMA for conciliation of their 10% wage dispute with their employer, no
certificate was issued declaring the matter unresolved. The employees approach their trade union after the employer
refused to increase their wages and the trade union simply gave the employer 24hrs notice of their intention to strike
regarding the employee’s wages.
After the 30-day period for dispute resolution by way of conciliation has lapsed, the employer should receive 48 hours’
notice of the intended strike.
No certificate was issued by the CCMA. And therefore we can assume that they did not wait for 30 days to lapse. The
employees approach their trade union after the employer refused to increase their wages and the trade union simply
gave the employer 24hrs notice of their intention to strike regarding the employee’s wages.
This notice has to indicate the specific time the strike would commence (employees are however not obligated to
commence the strike on that specific time).
Employees embarked on a strike by the end of the 24 hr notice period that was given to the employer. There is not
indication if a specific time was stipulated in that 24hr notice. 34
 Practise Question 1 (continued)

CONCLUSION:

•The employees at the company did not comply with the procedure set out in
section 64 of the LRA and we can therefore say that they embarked on an
unprotected strike.
•The employer can get an interdict from the court or dismiss the employees
in this situation.
•Note: If the strike was protected and the employer dismissed the employees
then the dismissal would be an automatically unfair dismissal (section 187 of
the LRA).

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 Practise Question - guideline
Question 2

Item 6 of the Code of Good Practice: Dismissal regulates the dismissal of employees for misconduct due to
strikes.
• The employer must consider the seriousness of the contravention of the LRA.
• The attempts made by the employees to comply with the LRA.
• Do the employees strike due to some unjustified conduct by the employer?
• The employer must have provided the employees with an ultimatum and have given them
reasonable time to comply with it.
Schedule 8 of the LRA - Code of Good Practice: Dismissals
Item 6: Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However,
like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of
dismissal in these circumstances must be determined in the light of the facts of the case, including-
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to
discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear
and unambiguous terms that should state what is required of the employees and what sanction will
be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient
time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the
employer cannot reasonably be expected to extend these steps to the employees in question, the
employer may dispense with them.
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