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Strike action in the workplace, what does the law say?

1 June 2021

Part 1

The Labour Relations Act (LRA) defines a strike as ‘the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, to remedy a grievance or resolve a dispute in respect of any matter of mutual interest between employer and employee, and any reference to work includes overtime work, whether it is voluntary or compulsory.’

What does the constitution say?

The question of strike action tends to raise strong views and emotions, and the stakes are invariably high for all parties involved. Section 23(2) of the 1996 Constitution established this right. Section 23(2) of the 1996 Constitution states that every worker has the right:

  • to form and join a trade union;
  • to participate in the activities and programmes of a trade union; and  to strike

The courts, in promoting collective bargaining as the best method of maintaining healthy labour relations have maintained that the freedom to strike is an important and necessary aspect of the system of collective bargaining. To engage in strike action involves following laid out procedures and obligations as provided for by the LRA. Failure to do so may mean that you run the risk of engaging in an 'unprotected' strike, with all the dangerous consequences involved.

The LRA distinguishes between disputes of right and interest. It was slated that an unresolved rights dispute may be arbitrated or adjudicated, whereas a dispute of interest may only be conciliated with exceptions. An unresolved interest dispute may lead to strike action by the workers or a lockout by employers.

When workers cannot strike

In terms of section 65 of the LRA workers cannot strike under the following circumstances:

  • Where there is a collective agreement that says workers cannot strike in respect of the issue that the workers and employers are in dispute about.
  • Where an agreement says that the dispute must be referred to arbitration.
  • Where a worker has a right to refer the dispute to arbitration or the Labour Court in terms of the LRA (i.e. a dispute of right). This does not include a dispute about organizational rights. In organizational rights disputes, workers have the option to refer the dispute to arbitration or to go on strike. Employees engaged in essential or maintenance services are excluded from taking part in strike action.

In our next blog, UASA will explain more about protected and unprotected strike actions. Strike actions by employees in workplaces are common but sometimes employees are not informed about the nature of strike action that they take part in and they sometimes land on the wrong side of the law.

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