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Workers have a right to strike, and employers have a right to lock
out workers, if a dispute cannot be resolved. Certain procedures
and certain limitations apply under certain conditions. Secondary
strikes and pickets may also be held.
Application
The Labour Relations Act applies to all employers, workers, trade
unions and employers’ organisations, but does not apply to -
- members of the:
- National Defence Force;
- National Intelligence Agency; or
- South African Secret Service.
See
- Labour Relations
Act
- Applies to all workers and employers and aims to advance economic
development, social justice, labour peace and the democracy of the
workplace.
Legal Strikes and Lockouts
Every worker has the right to strike, and every employer has the
option to lock out workers, if –
- a dispute has been referred to a council or the Commission for
Conciliation, Mediation and Arbitration (CCMA);
- a certificate that a dispute remains unresolved has been
issued;
- 30 days have elapsed since the referral; and
- 48 hours’ written notice of a strike is given to
a. the employer; or
b. a council (if the dispute relates to a collective agreement to
be concluded in a council); or
c. to an employers’ organisation (if the employer is a member of
an organisation that is a party to the dispute); or
- 48 hours’ written notice of a lockout is given to
a. the trade union; or
b. to the workers (if they are not trade union members); or
c. a council (if the dispute relates to a collective agreement to
be concluded in a council).
Workers’ Rights
During legal strikes workers may not –
- be dismissed; or
- have civil legal proceedings brought against them.
Employers’ Rights
During legal strikes employers –
- do not have to pay workers, unless workers ask that payment in kind
(accommodation, food, basic amenities) be continued; and
- may fairly dismiss a worker for misconduct or for operational
needs.
After a strike has ended, an employer may recover the monetary
value of payment in kind through civil proceedings in the Labour
Court.
During legal lockouts, employers may –
- not have civil legal proceedings brought against them during legal
lockouts; and
- recover the monetary value of payment in kind through civil
proceedings in the Labour Court after legal lockouts.
Special Procedure for Refusal to Bargain
When a party refuses to bargain, an advisory award must be
obtained before a strike can be held. An award cannot force a
party to bargain.
When Strike or Lockout Procedures Do Not Apply
Strike or Lockout Procedures do not apply if –
- members follow the procedure in a council’s constitution;
· a strike or lockout follows a collective agreement
procedure;
- workers strike in response to an illegal lockout;
· employers lock workers out in response to an illegal strike;
and
- employers one-sidedly change workers’ working conditions and refuse
to restore them.
Illegal Strikes and Lockouts
Strikes and lockouts will be illegal if –
- a collective agreement or arbitration award binds the parties;
- an agreement must be referred for arbitration or to the Labour
Court;
- a wage determination binds the parties and it is less than 1 year
old; or
- the parties are providing an essential or maintenance service.
Labour Court Action
If a strike or lockout is illegal, the matter must be referred to
the Labour Court, which may grant an interdict or a restraining
order.
Secondary Strikes
When workers strike in support of a legal strike held by other
workers, it is called a secondary strike.
Secondary strikers must give their employers or employers’
organisation 7 days’ notice of their intention to strike.
A secondary strike cannot be held if –
- the dispute has been referred to a council;
- the workers work within the registered scope of the council;
and
- they have a material interest in the dispute.
Picketing
A registered trade union may authorise its members and supporters
to picket. The aim of picketing is to peacefully support a legal
strike or to oppose a lockout.
Pickets may be held –
- in public access areas outside an employer’s premises; or
- inside an employer’s premises (with the employer’s
permission).
The parties or the CCMA must agree on the picketing rules.
Disputes
Any disputes on picketing rights may be referred to the
CCMA.
Records to be Kept by Employer
All employers must keep records of the details of strikes,
lockouts or protest actions according to the requirements of –
- collective agreements
- arbitration awards
- Wage Act determinations
All employers must keep the original or reproduced records –
- for 3 years from the date of an event; or
- from the date of an event; or
- from the end of a specified period.
All employers must submit records when requested by –
- a bargaining council; or
- commissioner; or
- any dispute resolution agent.
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