Does a certificate to strike issued by the CCMA have an indefinite lifespan? This is often the question our members ask, who are constantly reminded by union representatives that they hold a strike certificate and can use it at will. This article aims to address this question and provide clarity on the matter.

When a trade union intends to embark on strike action, Section 64 of the Labour Relations Act 66 of 1995 (as amended) regulates the procedure to be followed. If the dispute remains unresolved at the CCMA Conciliation and picketing rules have been determined, the Commissioner will issue a strike certificate which will enable the union and its members to embark on a legally protected strike.

The Labour Relations Act does not make provision for when a trade union fails to give notice of a strike within a reasonable period from the date the strike certificate is issued. The precedent set in the case of PRASA t/a Metrorail v SATAWU and Others C190/2016 (2016) (LC) serves as the guiding principle in these situations. The Labour Court had to decide whether a strike remains protected even when it is found that the union had unreasonably delayed in giving the notice to strike from when the strike certificate was issued. The Court held as follows:

“The inquiry should not centre on a waiver of the right to strike. Rather, it is a failure to rely on a specific certificate of outcome that is discernible in a case such as that before [the Court] …the right to strike is retained, but after an unreasonable delay in acting on the issued certificate, a union is required to go through the procedural steps set out in section 64 of the LRA once more. This approach accords with the speedy resolution of disputes on which the LRA is premised. It is also imminently sensible: over 18 months, there are likely to have been changes in the collective bargaining relationship. The procedural requirements clothing strike action with protection, which includes the opportunity for parties to reach a settlement agreement through the conciliation process, may produce a different outcome, given the effluxion of time.” [Own Emphasis]

It is clear from the above decision that a union that fails to timeously take strike action after a certificate to strike has been issued will not enjoy the protection of this certificate at a later stage. The remedy provided to employers is to demand that the dispute is accordingly re-referred to the CCMA to be dealt with in terms of Section 64 of the Labour Relations Act.

It is noteworthy that in the above case, when the union gave its notice to embark on a protected strike on the 4th of April 2016, a period of 18 months had elapsed from the date when the certificate was issued on the 21st of October 2014. Due to this reason, amongst others, PRASA brought an urgent application to have the Labour Court declare the strike unlawful. This case ensures that employers who find themselves in such a situation will have a right of recourse to ensure that their interests are safeguarded and that the union does not unjustly exercise their collective bargaining powers by using the strike certificate as a tool to threaten strike action at will.

We advise all our members to contact the nearest CEO offices for further assistance before taking any further action in such circumstances.

Article by: Zwelakhe Thwala
Dispute Resolution Official – Pretoria