Strike action: What does the law say?

strike

A question was asked about what constitutes a strike action:

“Kindly assist me with definition of a strike and what is it that constitute a strike action whether procedural or not, also requirements of for a protected strike action,situations where general pre-strike procedures will not apply, substantive requirements for protected strikes and different kinds of dismissals”

Here is how the law sees it:

Strike Definition

Strike means “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who 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.”

The procedural regulation of strikes

Section 64 of the Labour Relations Act, 1995 introduces procedural limitations on the constitutional right to strike and includes the following:

  • The dispute must be referred for conciliation before a strike will be permitted;
  • The CCMA or Bargaining Council must attempt to resolve the dispute by conciliation;
  • A certificate stating that the dispute remains unresolved must have been issued;
  • Written notice of a strike must be given to the employer on 48 hours notice in the private sector and 7 days notice if the state is the employer.

Exemptions from statutory procedures

Industrial action may be protected even through the procedural requirements of the LRA have not been followed in the following circumstances:

  • If the parties to the dispute are covered by a Council constitution or a Collective Agreement that sets out dispute procedures, and they follow these;
  • If the other party locks-out in defiance of the statutory procedures;
  • If an employer fails to maintain or restore pre-existing terms and conditions of employment where employees or their union have invoked the status quo remedy provided for in Section 64 (4) of the LRA and asked the employer in the dispute referral to do so.

Substantive requirements for industrial action

Strike action is not permitted if –

  • The parties have agreed to refer the issue in dispute to arbitration;
  • The dispute has to be referred to arbitration or the Labour Court under the LRA;
  • A Collective Agreement, Arbitration Award or Wage Determination regulates the issue in dispute;
  • The strikers are employed in an essential service or a maintenance service.

Protected strikers may not be dismissed for participating in protected strike action. They may, however, be dismissed if they misconduct themselves or the operational requirements of the business justified dismissal.

Unprotected strikers may be dismissed after fair ultimata have been issued.

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