The website Wikipedia, when searching the phrase Protest Action in South Africa, starts their synopsis with the following statement:
South Africa has been dubbed “the protest capital of the world”, with one of the highest rates of public protests in the world.
This label is largely attributed to, firstly, widespread service delivery protests and urban land and housing protests and secondly, protest in the form of protest action to promote or defend the socio-economic interests of workers.
The most recent and well know Labour related Protest Action was the action that revolved around the issue of Labour Brokers in South Africa. An industry that was the main subject in the well-known Assign Services (Pty) Ltd vs NUMSA & others matter. This matter brought clarity in the industry and was considered a win for the employees who rendered services under the employment of the so-called Labour Brokers or Temporary Employment Services as they are referred to in the Labour Relations Act.
A question commonly asked in the Labour Sphere: What is the difference between strike action and protest action?
Strike action is action aimed at applying pressure on a specific employer or a particular group of employers. This usually flows from a matter of mutual interest dispute between specific employees and employers. In essence, the subject of the strike or matter of mutual interest is something that could theoretically be agreed upon between the employees and the employer or employers, i.e. wage increases, provident fund contributions etc.
Protest action, however, does not pertain to a specific employer or group of employers that can agree to a demand or implement a more favourable socio-economic interest. Protest action is rather intended to place pressure on the legislator or even governmental departments who are tasked with the drafting of legislation to promote or defend the socio-economic interests of workers.
The LRA recognises these general interests and allows the workers’ voices to be heard through the protected protest action mechanism, to allow unions to promote or defend the socio-economic interests of workers.
The Labour Relations Act addresses this in Section 77.
In subsection 1, the right to partake in protest action is extended to every employee, with the exception of employees engaged in essential services or maintenance services, if:
- the protest action has been called by a registered trade union or federation of trade unions;
- the registered trade union or federation of trade unions has served notice on NEDLAC stating-
- The reason for the protest action; and
- The nature of the protest action;
- The matter giving rise to the intended Protest Action has been considered by NEDLAC or any other appropriate forum in which parties concerned are able to participate in order to resolve the matter; and
- At least 14 days before the commencement of the Protest Action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the Protest Action.
Subsection 2 grants the Labour Court exclusive jurisdiction to:
- Grant any order to restrain any person from taking part in protest action or in any conduct in contemplation or in furtherance of protest action that does not comply with subsection (1);
- In respect of protest action that complies with subsection (1), to grant a declaratory order contemplated by subsection (4), after having considered-
- the nature and duration of the protest action;
- the steps taken by the registered trade union or federation of trade unions to minimise the harm caused by the protest action; and
- the conduct of the participants in the protest action.
Subsection 3 states a person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protection conferred by section 67 (Strike or Lock-Out in Compliance with the Act).
Subsection 4, however, states that despite the provisions of subsection (3), an employee forfeits the protection against dismissal conferred by that subsection, if the employee:
- takes part in protest action or any conduct in contemplation or in furtherance of protest action in breach of an order of the Labour Court; or
- otherwise acts in contempt of an order of the Labour Court made in terms of this section.
Protest Action has become part of everyday life in South Africa, and the above will need to be taken into account by employers where their employees partake in protest action.
For any queries, always feel free to make contact with your nearest CEO offices.
Article by: Jaundré Kruger
Provincial Manager – FS/NC