Both strikes and lockouts are essential elements of collective bargaining. However, such actions should be used as a last resort. Strikes are used by employees to back up their demands in promoting and defending their employment-related interests, and employers use lockouts to back up their employment-related demands.
In the past few years, South Africa has seen very high levels of strike/ industrial action, especially in the mining industry, making it vital to have a proper understanding of this area of law.
What is the definition of a strike?
A strike is the partial or complete concerted refusal to work, or the retardation or obstruction of work, by people who are or have been employed by the same employer or by different employers.
There must be a:
- Refusal to work (The refusal to work must be in relation to work which employees are contractually obliged to do, which does not go against the law);
- The work stoppage must be concerted action by people employed by the same or different employers (Although the Constitution grants individual workers the right to strike, the right itself cannot be exercised individually, as a single person cannot engage in a strike. More than one person needs to participate for the action to constitute a strike)
- The purpose of a work stoppage should be to resolve a dispute in respect of a matter of mutual interest between the employer and employees
The right to strike is clearly protected in the South African Constitution. Legislative protection of the right to strike and recourse to a lockout means that employees partaking in that action will be protected against dismissal.
The Constitution does not give employers the right to lockout employees, however, the LRA provides in section 64(1) that every employee has the right to strike, and every employer has recourse to a lockout. The effect thereof is that employees have more robust protection in their right to strike than employers have.
In Ex parte Chairperson of the Constitution Assembly: In re Certification of the Constitution of the Republic of South Africa (1996), it was held that the effect of including the right to strike does not diminish the right of employers to engage in collective bargaining, nor does it weaken their right to exercise economic power against workers.
South Africa has seen many violent strikes in the years gone by, which has brought about suggestions to avoid this, one of them being the introduction of a secret ballot prior to the beginning of a strike. Debates have been held with regards to when strikes start getting violent, it should lose its protected status. These suggestions were not included in the Amendment Act. Section 150(1)(b) of the Labour Relations Act makes provision for the Director of the CCMA to appoint a commissioner to facilitate a dispute relating to strikes or lockouts if it’s for the public’s best interest.
In conclusion, the LRA does not impose criminal sanctions on strikers or participants in protest action who do not comply with its provisions, instead, it offers strikers protection against dismissal and civil action if they conform with the requirements of the statute, and deprives them of protection if they do not. Those in compliance with the statutory provision are protected, and those who are non-compliant are not.
Article by: Trevor Nene
Legal Assistant – Durban