- Understand Employee Rights: According to the Constitution of the Republic of South Africa, employees have the right to strike. Section 23(2) of the Constitution states that workers have the right to form and join a trade union, participate in union activities, and engage in a strike.
- Differentiate Between Protected and Unprotected Strikes: The Labour Relations Act (LRA) protects employees engaged in “protected strikes.” These strikes comply with the LRA’s requirements for dispute types and procedures.
- On the other hand, “unprotected strikes” do not meet these criteria and may have consequences for the participating employees.
- Define a Strike: In terms of the LRA, a strike refers to the partial or complete concerted refusal to work or the obstruction of work for the purpose of addressing grievances or resolving disputes of mutual interest between the employer and employees.
- This includes slowing down work (go-slow) or refusing to work overtime (overtime ban).
- Identify Matters of Mutual Interest: Labor disputes can be categorized into disputes of right and disputes of interest.
- Disputes of interest involve issues like wage disputes or changes to terms and conditions of employment that require negotiation to resolve.
- Know When Strikes Are Not Permitted: There are certain circumstances where employees cannot strike, such as when bound by a collective agreement prohibiting it, or when disputes must be referred to arbitration.
- Essential service employees may also have limitations on strike actions.
- Understanding Protected Strikes: To be a protected strike, the dispute must be permissible, referred for conciliation, and remain unresolved after conciliation.
- Employees must give the employer at least 48 hours’ notice before commencing a protected strike.
- Protecting Employees During a Protected Strike: Employees participating in a protected strike are safeguarded from dismissal.
- However, they are still subject to standard rules of misconduct, and gross misconduct can result in dismissal even during a protected strike.
- Handling Unprotected Strikes: Employees engaging in unprotected strikes risk consequences, such as interdicts by the employer to halt the strike, financial liability for the union in case of financial losses suffered by the employer, and the possibility of dismissal for the participating employees.
- Understand Lock-Outs: Employers have the right to a lock-out under specific circumstances stated in the LRA. Offensive lock-outs occur before a union’s strike, and defensive lock-outs happen after strike action begins. Replacement labor may be used in defensive lock-outs.
- Seek Conciliation and Mediation: In situations of labor disputes and potential strikes, it’s advisable to engage in conciliation and mediation through bodies like the CCMA (Commission for Conciliation, Mediation, and Arbitration) or a bargaining council to attempt resolving the issues before strike action is considered.
Remember to consult legal experts or labor advisors to ensure compliance with relevant laws and regulations during strike situations.