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Strike action in the workplace, what is protected and unprotected strike?

8 June 2021

Part 2        

 

Before the new Constitution workers were free to strike but did not have a right to strike. This meant that the law did not protect them if they went on strike. They could be dismissed because in terms of the common law a strike breaches the contract of employment. In terms of the South African Constitution workers have the right to strike. The Labour Relations Act (LRA) protects workers from dismissal provided their strike complies with the procedures that are set out in the LRA. These strikes are known as protected strikes.

Protected strikes

In terms of section 64 of the LRA, a strike will be protected if:

  • The dispute has been referred to a bargaining council or the CCMA for conciliation;
  • The CCMA or the bargaining council issues a certificate indicating that the dispute remains unresolved;
  • A period of 30 days has passed since the dispute was referred to the bargaining council or the CCMA, or where the parties agree to extend the 30 day period and that period has passed (no certificate needs to be issued);
  • The employer is given at least 48 hours’ notice of the strike.

How are workers protected if they take part in a protected strike?

Workers who take part in a protected strike are protected from dismissal. If an employer dismisses a worker for participating in a protected strike such a dismissal is automatically unfair and the worker may refer the dismissal to the Labour Court.

All the usual rules for misconduct apply during protected strike action. An employer is entitled to employ replacement or "scab workers" during a strike under certain circumstances. An employer does not have to pay a worker his or her wages or salary during a protected strike. If the worker's accommodation and food form part of his/her wages (this is known as payment in kind), the employer must continue to provide the worker with accommodation and food.

What will happen if workers go on an unprotected strike?

  • The employer may apply to the Labour Court for an interdict to stop workers from taking part in the strike. An Interdict is an order of the Labour Court that forbids the workers from taking part in the strike.
  • The Labour Court can order the union to pay the employer for any financial losses suffered as a result of the strike.
  • Taking part in an unprotected strike is considered to be a fair reason to dismiss a worker in terms of the LRA.

The following procedure should be followed by management before dismissing workers who take part in an unprotected strike:

  • Before dismissing the workers the employer should contact the union office as early as possible to tell the union that it intends to dismiss the workers.
  • The employer should issue a clear ultimatum to the workers. An ultimatum is a demand by the employer instructing the workers to return to work. It sets out what action the employer will take against the workers if the workers do not return to work.
  • The workers should be given enough time to consider the ultimatum and to reply to it. They can accept the ultimatum or reject it.

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