South Africa is no stranger to industrial strike action and has, in the past, seen extremely lengthy strikes such as the 2014 strike where 70 000 AMCU members employed by Lonmin, Impala Platinum and Anglo-American Platinum downed tools for almost five months. Similarly, as a country, we are all too aware of what devastating consequences such strike action can have, as illustrated by the tragic events that transpired during the 2012 strike at Lonmin, where 44 employees tragically lost their lives.
Section 23 of the Constitution of the Republic of South Africa 108 of 1996 affords all employees the right to strike. This notwithstanding Section 65 (1) (d) of the Labour Relations Act (LRA), which sets out certain restrictions on this right when the employee concerned is engaged in an essential service.
However, for those employees who are not restricted and not engaged in essential services, there are certain requirements that need to be met in order for a strike to be deemed lawful and thus protected. In this regard, Section 64 of the LRA sets out the requirements for a strike to be legal and therefore enjoy the protection of the LRA.
In terms of S64 of the LRA, the issue in dispute must first be referred to the CCMA or relevant Bargaining Council for Conciliation. The said tribunal or forum must then issue a certificate of outcome stating or indicating that the issue remains unresolved. Alternatively, 30 days must have lapsed from the date of the referral of the dispute. Once a certificate has been issued indicating that the matter remains unresolved, the referring party or the party wishing to engage in strike action must give 48 hours written notice of the commencement of the strike to the employer, except where the employer is the state in which case the required notice period is 7 days.
Inasmuch as there are certain procedural requirements in order for a strike to be deemed protected, there are certain instances whereby the parties may dispense with the statutory procedures as envisaged by S64 of the LRA. Some such instances include when the strike is in line with the procedure stipulated in a collective agreement to which the parties are members when employees strike as a response to an employer who has embarked on a lock-out which does not comply with S64 or when the parties are members of a specific bargaining council and such council’s constitution details how the dispute should be dealt with.
Industrial action that does not comply with the requirements set out in the LRA will not enjoy the protections afforded by it and may attract civil sanctions for those involved in such strike action and thus will be deemed an unprotected strike.
In terms of Section 68 of the LRA, any conduct in contemplation or furtherance of a strike that does not comply with the requirements as set put in the LRA is subject to the exclusive jurisdiction of the Labour Court, which can grant interdicts in respect of the unlawful strike. The Labour Court is also empowered by the LRA to order the payment of just and equitable compensation for any loss suffered by an employer, which is directly attributable to unprotected strike action.
Arguably the most important consequence of an unprotected strike for employees is the fact that in terms of Item 6 of Schedule 8, the Code of Good Practice, participation in an unprotected strike amounts to misconduct and may justify dismissal. Dismissal has been found to be an appropriate sanction where an unprotected strike was planned to create maximum pressure on an employer or to undermine the authority of the employer or where there had been an ultimatum issued, and the employees had refused to return to work.
In the 2017 County Fair Food v FAWU & others case, the Labour Appeal Court considered the provisions of Item 6 and stated that our courts have repeatedly stated that engaging in an illegal strike constitutes serious and unacceptable misconduct. In this particular matter, the employees refused to comply with continuous ultimatums to return to work.
As a consequence, the Court held that “the facts showed that the Union and the employees displayed a complete disregard to the consequences of their actions on either the business of the employer or the employment relationship.” The Court found that the sanction of dismissal was fair in the circumstances.
In an attempt to put pressure on the employer, employees employed by another employer may embark on a secondary strike, also known as a sympathy strike. Secondary strikes are a species of a strike and, as with primary strikes, have certain statutory requirements which must be met in terms of the LRA in order for the secondary strike to be deemed protected.
In this regard Section 66 of the LRA provides that no person may take part in a secondary strike unless:
- The strike that is to be supported complies with the provisions of Sections 64 and 65;
- The employer of the employees taking part in the secondary strikeor, where appropriate, the employers’ organisation of which that employer is a member, has received written notice of the proposed secondary strike at least seven days prior to its commencement; and
- The nature and extent of the secondary strikeis reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.
Due to the fact that secondary strikes are a species of strike, they not only enjoy the same protections and immunities afforded to strikes in general, but where they are not in line with the requirements as provided by the LRA, they will incur the same liabilities as imposed by Section 68.
Article by: Ilze Erasmus
Dispute Resolution Official – Port Elizabeth