Many scenarios may come to mind when one thinks of the word “strike”. However, few have considered how this action affects an Employer and their business. The Labour Relations Act (LRA) defines a strike as “the partial or complete concreted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same Employer or by a different Employer, to remedy a grievance or resolve a dispute in respect of any matter of mutual interest between the Employer and Employees. Every reference to work in this definition includes overtime work, whether it is voluntary or compulsory”.

This definition is tailored to an Employees’ actions, not the Employer’s. Therefore, this raises the question of what recourse does the Employer have at their disposal? To answer this question, it should be noted that just as an Employee has the right to strike, the Employer has the recourse to a lock-out.

What is a lock-out? A lock-out is when the Employer refuses to grant the Employees access to the workplace. In essence, this means that those Employees who were striking will not be able to render a service and, as a result, will not be paid a wage or salary. Furthermore, a lock-out may only take place in response to a strike or to force the Employees to accept a demand of the Employer.

In terms of the LRA, an Employer shall have the right to a lock-out, provided that:

  1. The matter that is disputed has been sent to the Bargaining Council or the Commission for Conciliation, Mediation & Arbitration (CCMA), and a certificate referring that the dispute remains unresolved has been issued, or a considerable period of 30-days, or any extension of that time frame has lapsed since the Council or Commission received the referral;
  2. When there is a proposed lock-out, a minimum of 48 hours written notice must be given to any Trade Union that forms part of the dispute; and if there is no Trade Union involved, then the notice ought to be given to the Employees, except if the dispute in question relates to a Collective Agreement which must be concluded in a Council, and in which case the notice shall be given to that Council; or
  3. In an instance where the state is the Employer, a minimum of 7 days written notice as to the start of the lock-out must be given to the parties mentioned above.

However, an Employer will not be permitted to use the recourse of a lock-out if the dispute involves parties who are members of a Bargaining Council and that specific Council has dealt with the dispute in line with its Constitution. Further, if the Employer fails to comply with the requirements of Section 64(4) and (5) of the LRA, then the recourse to a lock-out will not be available to Employers.

In conclusion, it is evident that just the Employee has the right to strike in terms of the LRA, and the Employer has an equal right to a lock-out provided the Employer meets all the requirements and is aware of the limitations.

Article By: Sharice Naicker

Legal Assistant