STRIKES AND LOCKOUTS

LECTURE NOTES
 INTRODUCTION

• STRIKES AND LOCK-OUTS ARE IMPORTANT ELEMENTS IN SECURING THE

BALANCE OF POWER WITHIN ANY LABOUR RELATIONS SYSTEM.
• STRIKES AND LOCK-OUTS MAYBE NECESSARY TO ENABLE THE PARTIES TO
REACH AN ACCEPTABLE AGREEMENT OVER WAGES, WORKING CONDITIONS AND
PROCEDURAL ARRANGEMENTS.
 STRIKE ACTION
A STRIKE MAY BE DEFINED AS BROADLY AS:
 A TEMPORARY COLLECTIVE WITHHOLDING OF LABOUR, ITS OBJECTIVE BEING TO STOP OR IMPEDE THE CONTINUATION OF BUSINESS
AND THEREBY TO OBLIGE THE EMPLOYER TO TAKE NOTICE OF EMPLOYEE DEMANDS.

ACCORDING TO SECTION 213 OF THE LABOUR RELATIONS ACT STRIKE IS: 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 WORK, WHETHER IT IS VOLUNTARY OR
COMPULSORY.

THE DEFINITION OF A STRIKE COMPRISES OF THREE ELEMENTS:

1. A REFUSAL TO WORK: REFUSAL TO WORK CAN BE PARTIAL OR COMPLETE AND CAN ALSO INCLUDE RETARDATION OR
OBSTRUCTION OF WORK.
• A PARTIAL REFUSAL MEANS THAT THE EMPLOYEES PERFORM SOME OF THEIR TASKS BUT NOT OTHERS.
• RETARDATION OF WORK IS MANIFESTED IN THE SO-CALLED GO-SLOW WHERE THE EMPLOYEES CONTINUE TO WORK BUT DO SO AT A
SLOWER RATE.
• OBSTRUCTION OF WORK REFERS TO INSTANCES WHERE THE EMPLOYEES IN ONE WAY OR ANOTHER HAMPER PRODUCTION OR THE
WORK PROCESS.
2. COLLECTIVE ACTION: STRIKE ACTIONS IS A COLLECTIVE ACTION AND BY IMPLICATION IT WILL ALWAYS INVOLVE TWO
OR MORE EMPLOYEES.
3. FOLLOWING FROM A GRIEVANCE OR DISPUTE: STRIKE ACTIONS USUALLY EMANATE FROM FAILED NEGOTIATIONS,
DEMANDS BY EMPLOYEES OR PROTESTS AT MANAGEMENT ACTIONS OR DECISIONS.
 REASONS FOR STRIKE ACTION
GENERAL DISSATISFACTION AMONG EMPLOYEES
• THIS STARTS WITH UNHAPPINESS OR DISSATISFACTION WITH CURRENT CIRCUMSTANCES.
ECONOMIC CONCERNS
• THIS INCLUDE WAGES, INCREASING PRICES OF ELECTRICITY, TRANSPORT, FOOD, HEALTH SERVICES,
CLOTHING AND RENT.
DISSATISFACTION WITH CONDITIONS OF SERVICE
• SOME EXAMPLES ARE WORKING HOURS, INEFFECTIVE TRAINING AND BENEFITS.
PERSONAL PROBLEMS
• WORKERS VERY OFTEN HAVE LIMITED POWER TO INFLUENCE THEIR PERSONAL ENVIRONMENT.
SOLIDARITY WITH OTHER EMPLOYEES
• WORKERS ARE VERY AWARE OF THE VALUE OF THEIR LABOUR AND THE IMPACT ON ORGANISATIONS
THAT WITHHOLDING LABOUR CAN HAVE.
 CLASSIFICATION OF STRIKES
ECONOMIC STRIKES: RELATE TO MANAGEMENT’S REFUSAL OR FAILURE TO SATISFY THE DEMANDS OF EMPLOYEES REGARDING
WAGES AND OTHER ECONOMIC ISSUES SUCH AS SERVICE BENEFITS AND WORKING CONDITIONS.
GRIEVANCE STRIKES: NORMALLY OCCUR WHEN EMPLOYEES DO NOT AGREE WITH THE WAY IN WHICH MANAGEMENT DEALS
WITH NORMAL DAY TO DAY PROBLEMS (THE INTRODUCTION OF NEW TECHNOLOGY, DOWNSIZING, RESTRUCTURING OR ANY
OTHER WORK RELATED PROBLEMS.
DEMONSTRATION STRIKES: REFERS TO ACTIONS INTENDED PRIMARILY TO DISPLAY DISSATISFACTION AS A PRELIMINARY TO
NEGOTIATE OR TO FURTHER NEGOTIATION.
RECOGNITION STRIKES: ARE ACTIONS IN WHICH IT IS INTENDED BY A SHOW OF STRENGTH TO MAKE MANAGEMENT RECOGNIZE
THE EMPLOYEES’ RIGHT TO REPRESENTATION OR TO CLOSER CONSIDERATION OF THEIR DEMANDS.
PROCEDURAL STRIKES: OCCURS AFTER PROCEDURES OR NEGOTIATIONS HAVE BEEN EXHAUSTED OR ARE THOUGHT TO HAVE
BEEN EXHAUSTED, WHERE NO AGREEMENT HAS BEEN REACHED AND A DEADLOCK SITUATION HAS RISEN
GO-SLOWS: IS A METHOD OF WITHHOLDING LABOUR AND AFFECTING PRODUCTION WITHOUT ACTUALLY BRINGING OPERATIONS
TO A STANDSTILL.
OVERTIME BANS: WHERE OVERTIME IS REGULATED BY CONTRACT OR AGREEMENT, A BAN ON OVERTIME CONSTITUTES A STRIKE
ACTION AND WOULD BE SUBJECT TO THE SAME REGULATIONS AS A STRIKE.
SYMPATHY OR SOLIDARITY STRIKES: OTHER EMPLOYEES AT PLANTS BELONGING TO THE SAME COMPANY OR IN OTHER
ORGANISATIONS IN THE SAME INDUSTRY OR SECTOR, OR BELONGING TO THE SAME UNION OR FEDERATION MAY INSTITUTE
STRIKE ACTION TO DISPLAY SOLIDARITY WITH OTHER STRIKING EMPLOYEES.
• WILDCAT STRIKES: OCCUR WITHOUT ANY PRIOR WARNING. THE ELEMENT OF SURPRISE IS USED TO BRING CERTAIN ISSUES TO
MANAGEMENT’S ATTENTION. THE STRIKE AIM IS TO TAKE THE EMPLOYER COMPLETELY BY SURPRISE. NO NEGOTIATIONS TAKE
PLACE AND THE RESULT CAN BE ABSOLUTE CHAOS. IT IS OFTEN TRIGGERED BY WHAT IS PERCEIVED TO BE AN UNFAIR
DISMISSAL OR UNRESOLVED GRIEVANCES, AND IT CAN BE EXTREMELY TRAUMATIC AND DISRUPTIVE.
 LOCKOUTS BY THE EMPLOYER

• THE EMPLOYER MAY TEMPORARILY WITHHOLD EMPLOYMENT FROM HIS EMPLOYEES IF THEY DO
NOT AGREE TO HIS DEMANDS OR TO A SETTLEMENT PROPOSED BY HIM OR HER.
• ACCORDING TO SECTION 213 OF THE LABOUR RELATIONS ACT LOCKOUT IS: THE EXCLUSION BY
EMPLOYER OF EMPLOYEES FROM THE EMPLOYER’S WORKPLACE, FOR PURPOSE OF COMPELLING THE
EMPLOYEES TO ACCEPT A DEMAND IN RESPECT OF ANY MATTER OF MUTUAL INTEREST BETWEEN
EMPLOYER AND EMPLOYEE WHETHER OR NOT THE EMPLOYER BREACHES THOSE EMPLOYEES’
CONTRACTS OF EMPLOYMENT IN THE COURSE OF OR FOR THE PURPOSE OF THAT EXCLUSION.
• IN LOCKOUT THE EMPLOYER PREVENTS EMPLOYEES FROM WORKING AND THEREFORE EARNING
THEIR WAGES.
• THE EMPLOYER IS SAFEGUARDED FROM CLAIMS OF BREACH OF CONTRACT IF HE OR SHE LEGALLY
LOCKS OUT THE EMPLOYEES.
 FUNCTIONS OF THE LOCKOUT
• LOCKOUTS CAN BE USED FOR A VARIETY OF REASONS:
OFFENSIVE LOCKOUTS:
• MAY BE IMPLEMENTED UNDER VARIOUS CIRCUMSTANCES.
• WHEN A DEADLOCK IN NEGOTIATION ARISES, MANAGEMENT MAY IMPOSE A LOCKOUT SO THAT THE EMPLOYER CONTROLS THE
TIMING OF THE INDUSTRIAL ACTION, RATHER THAN ALLOWING THE UNION THE ADVANTAGE OF CHOOSING WHEN TO EMBARK ON
A STRIKE.
• TACTICALLY THE EMPLOYER THE EMPLOYER CONTROLS THE SITUATION.
• IT MAY BE USED TO FORCE AN AGREEMENT WHICH WOULD OTHERWISE BE DIFFICULT TO OBTAIN..
• THE LRA PROHIBITS EMPLOYERS FROM HIRING REPLACEMENT LABOUR TO DO THE WORK OF EMPLOYEES WHO HAVE BEEN
EXCLUDED FROM THE WORKPLACE DURING AN OFFENSIVE LOCKOUT.

DEFENSIVE LOCKOUTS:
• MAY OCCUR AFTER A STRIKE HAS ALREADY COMMENCED.
• MANAGEMENT MAY WISH TO ENFORCE THE SERIOUSNESS OF ITS FINAL OFFER OR REMOVE STRIKING WORKERS FROM THE
PREMISES.
• GATES MAY BE LOCKED AND ACCESS GRANTED ONLY TO REPLACEMENT LABOUR OR UNTIL GO-SLOWS OR WORK-TO-RULES PROVE
INTRACTABLE, AN EMPLOYER MAY LOCKOUT EMPLOYEES UNTIL THEY AGREE TO MEET PRODUCTION NORMS.
 PROCEDURAL REQUIREMENTS OF
LOCKOUT

• LRA PROVIDE THAT EVERY EMPLOYER HAS RECOURSE TO LOCKOUT EMPLOYEES, IF:
 THE ISSUE IN DISPUTE HAS BEEN REFERRED TO FIRST TO A BARGAINING COUNCIL OR THE CCMA

 A CERTIFICATE IS ISSUED STATING THAT THE DISPUTE REMAINS UNRESOLVED AFTER CONCILIATION ATTEMPTS HAVE
FAILED

 A PERIOD OF 30 DAYS OR ANY EXTENSION OF THE PERIOD AGREED TO BY THE PARTIES, HAS ELAPSED SINCE THE
REFERRAL WAS RECEIVED BY THE COUNCIL OR CCMA, AND

 AT LEAST 48 HOURS NOTICE OF THE LOCKOUT 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 CASES NOTICE MUST BE GIVEN TO THE COUNCIL.

 IN A CASE WHERE THE STATE IS AN EMPLOYER, AT LEAST 7 DAYS NOTICE OF THE LOCKOUT HAS TO BE GIVEN THE
PARTIES LISTED ABOVE.
 STRIKES AND LOCKOUTS IN SOUTH AFRICA
• IN SOUTH AFRICA STRIKE AND LOCKOUT ACTION, WITH THE EXCEPTION OF THOSE ESSENTIAL AND
MAINTENANCE SERVICES ARE NOT ILLEGAL.

• THEY WILL BE LEGALLY ONLY IF PRESCRIBED DISPUTE SETTLEMENT MACHINERY HAS BEEN USED.

PROTECTED VERSUS UNPROTECTED ACTIONS

• BEFORE THE ESTABLISHMENT OF THE LABOUR RELATIONS ACT 55 OF 1995 ‘LEGAL’ OR ‘ILLEGAL’ STRIKES WERE
USED. THERE WAS NO CLEAR TERM THAT DIFFERENTIATE THOSE STRIKES.

• AFTER THE ESTABLISHMENT OF THE LRA TERMS ‘PROTECTED AND UNPROTECTED STRIKES ARE COMMONLY
APPLIED.

• PROTECTED STRIKE IS ONE WHERE EMPLOYEES CANNOT LEGALLY BE DISMISSED IF THEY HAVE FOLLOWED THE
RULES.

• WHERE A STRIKE CONTINUES AND HAS A NEGATIVE EFFECT ON THE ORGANISATION, THE EMPLOYER MAY HAVE A
CASE FOR DISMISSING THE EMPLOYEES ON THE GROUNDS OF OPERATIONAL REQUIREMENTS.
 PROTECTED STRIKES
PROCEDURAL REQUIREMENTS OF STRIKES
EVERY EMPLOYEE HAS THE RIGHT TO STRIKE ON A MATTER OF MUTUAL INTEREST IF:
• THE ISSUE IN DISPUTE HAS BEEN REFERRED FIRST TO BARGAINING COUNCIL HAVING JURISDICTION OR
CCMA;
• A CERTIFICATE ISSUED BY THE CCMA OR THE BARGAINING COUNCIL STATING THAT THE DISPUTE
REMAINS UNRESOLVED AFTER CONCILIATION ATTEMPTS HAVE FAILED;
• GIVE THE OTHER PARTY 48 HOURS WRITTEN NOTICE OF THE PLANNED ACTION (THIS NOTICE MUST
INDICATE ON WHICH DAY AND AT WHAT TIME A STRIKE WILL COMMENCE);
• IF THE EMPLOYER PARTY IS THE PUBLIC SERVICE GIVE SEVEN DAYS WRITTEN NOTICE OF A PROPOSAL
STRIKE OR LOCKOUT.
• WHERE THE DISPUTE INVOLVES AN AGREEMENT CONCLUDED IN A BARGAINING COUNCIL OR
INVOLVES AN EMPLOYERS’ ORGANISATION, GIVE THE NECESSARY NOTICE TO OTHER PARTIES.
• WHERE THE DISPUTE INVOLVES THE REFUSAL TO BARGAIN, FIRST GO TO ADVISORY ARBITRATION
BEFORE EMBARKING ON ANY ACTION.
 PROTECTED STRIKES
DISMISSALS
• PARTICIPATION IN A PROTECTED STRIKE DOES NOT CONSTITUTE BREACH OF CONTRACT AND
THE EMPLOYEES CANNOT BE DISMISSED.
• STRIKING EMPLOYEES MAY BE DISMISSED SHOULD THEY MAKE THEMSELVES GUILTY OF
OFFENCES THAT JUSTIFY DISMISSAL IN TERMS OF THE EMPLOYER’S DISCIPLINARY CODE. IF
THERE ARE EMPLOYEES WHO ARE GUILTY OF MISCONDUCT DURING A PROTECTED STRIKE
NORMAL DISCIPLINARY PROCEDURES SHOULD BE FOLLOWED BY THE EMPLOYER.

REPLACEMENT LABOUR AND PAYMENTS OF STRIKES

• THE EMPLOYER CAN USE OF REPLACEMENT/SCAB LABOUR DURING A STRIKE.
• THE EMPLOYER DOES NOT NEED TO REMUNERATE ANY EMPLOYEES PARTICIPATING IN A
STRIKE IRRESPECTIVE OF WHETHER THE STRIKE WAS PROTECTED OR UNPROTECTED. THE
PRINCIPLE OF NO WORK NO PAY.
• DURING A ANY STRIKE ACTION AN EMPLOYER MUST, IF SO REQUESTED BY AN EMPLOYEE
CONTINUE ANY PAYMENT SUCH ACCOMMODATION OR OTHER BASIC AMENITIES.
 UNPROTECTED STRIKES (WILDCAT
STRIKES)
• PARTICIPATION IN A STRIKE THAT DOES NOT COMPLY WITH THE PROCEDURAL PROVISIONS OF THE ACT OR IS LIMITED
BY VIRTUE OF ANY REASON. FOR EXAMPLE, A STRIKE IN ESSENTIAL SERVICE MAY CONSTITUTE A FAIR REASON FOR
THE DISMISSAL OF AN EMPLOYEE.

• IN DETERMINING WHETHER OR NOT THE DISMISSAL IS FAIR, VARIOUS FACTORS MUST BE TAKEN INTO ACCOUNT
NAMELY:
 THE SERIOUSNESS OF THE CONTRAVENTION

 THE ATTEMPTS MADE TO COMPLY WITH THE ACT; AND

 WHETHER OR NOT THE STRIKE WAS IN RESPONSE TO UNJUSTIFIED CONDUCT BY THE EMPLOYER. IN ADDITION THE EMPLOYER
SHOULD:

 ISSUE AN ULTIMATUM IN CLEAR AND UNAMBIGUOUS TERMS

 STATE WHAT IS REQUIRED OF THE EMPLOYEES

 STATE WHAT SANCTION WILL BE IMPOSED IF THEY DO NOT COMPLY WITH THE ULTIMATUM, AND

 GIVE EMPLOYEES SUFFICIENT TIME TO RESPOND

• STRIKES THAT ARE CONTRARY TO WORKPLACE OR BARGAINING COUNCIL AGREEMENTS AND DO NOT COMPLY WITH
THE PROVISIONS OF THE LRA ARE GENERAL TERMS “UNPROCEDURAL” OR USING STRONGER TERM, “WILDCAT
STRIKE”.
 ESSENTIAL SERVICE
• ESSENTIAL SERVICE IS ANY INTERRUPTION OF WHICH MAY ENDANGER THE LIVES, PERSONAL HEALTH OR SAFETY OF THE
ENTIRE POPULATION OR A PART OF THE POPULATION.
• ANY MEDICAL SERVICE OR EMERGENCY SERVICE SUCH AS FIREFIGHTING WOULD BE CLASSIFIED AS ESSENTIAL
SERVICE.
• PERSONS INVOLVES WITH THE SUPPLY OF WATER TO THE GENERAL PUBLIC MAY BE REGARDED AS INVOLVED IN
ESSENTIAL SERVICE.
• PARLIAMENTARY SERVICE AND THE SOUTH AFRICAN POLICE SERVICE ARE ALSO CLASSIFIED AS ESSENTIAL SERVICES.
• DISPUTE IN THESE SECTORS CAN BE SETTLED BY THE USE OF MEDIATION AND ARBITRATION OR LEGAL
ADJUDICATION.
• STRIKES IN ESSENTIAL SERVICES ARE DESIGNATED BY THE ESSENTIAL SERVICES COMMITTES.
• STRIKES AND LOCKOUTS IN ESSENTIAL SERVICES ARE PROHIBITED.
• A COLLECTIVE AGREEMENT MAY BE RATIFIED BY THE COMMITTEE, WHICH DESIGNATES PART OF AN ESSENTIAL SERVICE
AS A MINIMUM SERVICE.
• STRIKING IS PROHIBITED ONLY IN MINIMUM SERVICE.
• DISPUTE IN ESSENTIAL SERIVES MUST BE REFERRED EITHER TO A BARGAINING COUNCIL OR STATUTORY COUNCIL OR TO
THE CCMA FOR CONCILIATION AND ARBITRATION
 SYMPATHY/SECONDARY STRIKES
SYMPATHY STRIKE IS DEFINED AS AN ACTION INITIATED BY EMPLOYEES OF ONE EMPLOYER (SECONDARY EMPLOYER) IN SUPPORT OF
STRIKING EMPLOYEES AT ANOTHER EMPLOYER (PRIMARY EMPLOYER).
IN ORDER FOR A SECONDARY STRIKE TO QUALIFY AS STRIKE AS A PROTECTED INDUSTRIAL ACTION, THE PRIMARY STRIKE MUST ITSELF BE A
PROTECTED STRIKE.
SECONDARY STRIKES ARE USUALLY ASSOCIATED WITH A CLOSE RELATIONSHIP BETWEEN EMPLOYERS.
SECONDARY STRIKE MAY SERIOUSLY AFFECT PRODUCTION OR SALES IN OTHER ORGANISATIONS.

LEGAL REQUIREMENTS OF SECONDARY STRIKE

IN TERMS OF THE LRA A SECONDARY STRIKE WILL BE PROTECTED IF:
• THE STRIKE THAT IS BEING SUPPORTED IS A PROTECTED STRIKE AND ALL PROCEDURAL REQUIREMENTS HAVE BEEN FOLLOWED
• THE SECONDARY STRIKERS HAVE GIVEN THE EMPLOYER OR A REPRESENTATIVE EMPLOYERS’ ORGANISATION AT LEAST SEVEN
DAYS’ NOTICE BEFORE GOING ON STRIKE
• THE NATURE AND EXTENT OF THE SECONDARY STRIKE IS RESPONSIBLE IN RELATION TO THE POSSIBLE DIRECT OR INDIRECT
EFFECT IT MIGHT HAVE BEN ON THE BUSINESS OF THE PRIMARY EMPLOYER
• THERE IS SOME KIND OF CORRELATION BETWEEN THE BUSINESSES OF THE PRIMARY AND THE SECONDARY EMPLOYERS’ (E.G.
WORKERS UNDERTAKING THE SECONDARY ACTION MAYBE EMPLOYEES OF COMPANIES THAT ARE CUSTOMERS, SUPPLIERS OR
ASSOCIATES OF THE PRIMARY COMPANY INVOLVED).
• THE LAW THEREFORE ACCEPTS THAT A SECONDARY ACTION, IN ORDER TO BE LEGITIMATE, MUST BE INSTITUTED FOR THE
PURPOSE OF EXERTING PRESSURE ON THE FIRST EMPLOYER TO CHANGE HIS POSITION AND THAT IT SHOULD NOT BE
UNDERTAKEN MERELY TO EXPRESS SOLIDARITY WITH OTHER STRIKES.
 SYMPATHY/SECONDARY ACTION

RECOURSE BY THE SECONDARY EMPLOYER

• IF A SECONDARY STRIKE DOES NOT COMPLY WITH LEGAL REQUIREMENTS, AN
EMPLOYER MAY LODGE AN APPLICATION IN THE LABOUR COURT TO PROHIBIT
THE STRIKE ACTION BY MEANS OF COURT INTERDICT.
• THE COURT OR ANY PARTY TO THE ACTION MAY REQUEST THE CCMA TO
INVESTIGATE THE EXTENT TO WHICH SYMPATHY STRIKE WILL HAVE ANY EFFECT
ON THE FIRST EMPLOYER.
 PICKETING
PICKETING IS ALLOWED IN TERMS OF SECTION 17 OF THE CONSTITUTION WHICH GIVES ALL CITIZENS THE RIGHT TO
PEACEFULLY AND UNARMED DEMONSTRATE, PICKET AND PRESENT PETITIONS.

PURPOSE OF PICKETING
PICKETING IS UNDERTAKEN IN ORDER TO:
 PERSUADE OTHER EMPLOYEES, WHO ARE NOT PARTICIPATING IN THE STRIKE, TO STOP PRODUCTION AND TO JOIN
OR SUPPORT THE STRIKE
 DISCOURAGE CUSTOMERS FROM ENTERING THE EMPLOYER’S PREMISES
 HAMPER THE DELIVERY OF SUPPLIES NECESSARY FOR PRODUCTION
 PREVENT, DISRUPT OR LIMIT THE DELIVERY OF GOODS TO CUSTOMERS
 COMMUNICATE GRIEVANCES TO THE WIDER PUBLIC.

LEGAL POSITION OF PICKETING

IN TERMS OF THE LRA A PICKET WILL BE PROTECTED IF:
 THE PICKET HAS BEEN AUTHORIZED BY A REGISTERED TRADE UNION
 PICKETERS ENGAGE IN A PEACEFUL DEMONSTRATION
 IT IS IN SUPPORT OF A PROTECTED STRIKE OR IN OPPOSITION TO A LOCKOUT.