As an employer, the very last words or phrases you want to hear uttered around your business premises are the words strike or go slow. In a country where strikes oft occur for reasons that can vary in nature, many employers are still blissfully unaware of what these words actually entail for the operations of their respective businesses. Furthermore, understanding and navigating the legislation and intricate legalities pertaining to strike action can be daunting for most employers.
With this in mind, the aim of this and the following articles to come in this series is to provide an easy-to-understand yet comprehensive resource which briefly canvasses employers’ rights and obligations in relation to strikes so that employers can feel empowered when dealing with strike action in the workplace.
First and foremost, to understand what a strike is, sight must be had of the legal definition thereof. Section 213 of the Labour Relations Act (LRA) defines a strike as “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 overtime work, whether it is voluntary or compulsory.
From this definition, there are numerous sub-topics that can be identified and expatiated upon further, however for the sake of being succinct, we will discuss three of the main sub-topics in very brief detail, namely: “Partial refusal to work or the retardation of work”, “For the purpose of remedying a grievance or resolving a dispute” and “A matter of mutual interest.”
1. Partial refusal to work or the retardation of work
In essence, what this means is that employees work in such a manner or resort to action short of a complete withdrawal of work. This may include things like refusing to carry out certain tasks while continuing to perform others. Retardation of work comprises of when employees carry out their tasks at reduced levels of activity or when employees actually obstruct tasks and functions from being carried out fully.
2. For the purpose of remedying a grievance or dispute
On the face of it, not all industrial action can automatically be deemed a strike. For instance, in the case of FAWU v Rainbow Chicken Farms , 1 BLLR 70 (LC), the employees refused to render their service due to it being a public holiday. The employer deemed this to be unprotected strike action. However, the Court decided that the employees had not sought to remedy a grievance or resolve a dispute and thus rejected the employer’s argument. However, in various later Judgments, the Courts have, however, pronounced more specifically on this aspect, and in essence, a defining factor of a strike is that from employees, there is an expression of demands and concurrent refusal to work until such demands are met.
3. A matter of mutual interest
This particular topic is rich with case law and information as the LRA does not define what a matter of mutual interest is. However, and as expressed in a previous CEO article in March of this year, the various Courts have provided some guidance as to what defines an issue of mutual interest. When considering all these judgments in totality, a very rudimentary definition one can arrive at, is that a matter of mutual interest is one that “literally means any issue concerning employment” (De Beers Judgment). The Courts have gone further to elucidate on this topic, and it is suggested that employers refer to our article of March 2021 concerning this topic.
This right to strike is not, however, absolute, and certain industries and services within the national workforce are prohibited from striking. Furthermore, before employees embark on strike action, there are certain requirements or legalities which must be adhered to in order to render the strike lawful or protected. The topics of essential services and protected vs unprotected strikes will be addressed in a later article in this series.
Remuneration during a strike – No work, no pay principle
If one has sight of the LRA and, more specifically, S67 thereof, the answer to whether an employee should be paid whilst they are embarking on strike action is clearly laid out. S67(1) – (3) states the following:
- Strike or lock-out in compliance with this Act
(1) In this Chapter, “protected strike” means a strike that complies with the provisions of this Chapter and “protected lock-out” means a lock-out that complies with the provisions of this Chapter.
(2) A person does not commit a defect or a breach of contract by taking part in-
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.
(3) Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however-
(a) if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the employee, must not discontinue payment in kind during the strike or lock-out;
Therefore, and in accordance with S67 above, if employees are engaged in protected strike action, an employer is not obliged to pay such employees for that period, except for subsection (3)(a) of S67 as illustrated above.
As per S67 above, the LRA speaks of a protected strike and what an employer’s obligations are in that regard. In the next article in this series, however, we will discuss the differences between protected and unprotected strikes and what the legalities and hallmarks of these types of strikes are.
Article by: Daniel Van Der Merwe
Provincial Manager – Port Elizabeth