When parties cannot reach an amicable agreement or solution, a “deadlock” occurs. Before parties accept that a deadlock has been reached, they should consider the possible consequences.
If parties cannot resolve the dispute through careful consideration and discussion, the question becomes, “What happens when parties reach a deadlock?”
Typically, Employees may then strike. However, parties cannot simply put down their tools and embark on a strike. There are specific procedures and channels to follow before a protected strike can occur. Section 64 of the Labour Relations Act (LRA) regulates the proper procedure. In essence, this Section states that when a matter has been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant Bargaining Council where the dispute remains unresolved, and a certificate has been issued to that effect, parties can then embark on a protected strike.
It is important to note that parties must give 48 hours written notice of the strike to the Employer. The relevant Council should also be notified in writing if the dispute is related to a Collective Agreement. If the Employer is a member of an Employers Organisation, the Organisation should also be notified.
If the Employer intends to lock out Employees, they must provide 48 hours written notice to the relevant Trade Union. If no Trade Union represents the Employees, the Employer should notify the relevant Council of their intention to lock out, provided it pertains to a Collective Agreement. Because this article is aimed at a deadlock at the National Level, a Trade Union will likely be involved in the proceedings.
Section 69 of the LRA regulates picketing rules. Picketing is a form of protected strike, and it involves parties agreeing to the rules on how the strike/picketing will occur. For example, parties may agree on when the strike will occur, where the Employees may strike, and that Employees may not interfere with the business operations. A Commissioner from the relevant Council may determine the rules for the strike/picketing, or the parties may agree on the rules. An Arbitrator can issue an Advisory Award before issuing a strike certificate. However, parties are not bound to adhere to the Advisory Award as it is merely the Commissioner’s advised outcome on a possible way strike action may be avoided. Parties can always revert to discussions in an attempt to resolve the dispute regarding wages, etc., to prevent the continuation of a strike.
Now, what should Employers and businesses prepare for when facing a strike? When Employees from a workplace strike, the Employer will face a staff shortage, and operations will not run as smoothly as they should. It is important to note that the no-work-no-pay principle will apply to Employees who strike; however, Employers should refrain from taking disciplinary action against such Employees if the strike is protected, unless misconduct is committed during such strike.
Article By: Kenneth Lennox
Dispute Resolution Official – CEO Bloemfontein