Stopping work to back up a demand
Stopping work to back up a demand
The Labour Relations Act, 1995, (LRA) provides a framework for collective bargaining to regulate the relationship between employers and employees. Employers and employees are obliged to try to resolve disputes and only embark on strikes and lock-outs as a last resort to try to compel the other side to agree to their demands. A lock-out occurs when an employer locks workers out of the business and a strike occurs when workers withdraw their labour. ‘Strike’ is defined to include ‘conduct in contemplation or furtherance of a strike’. (See disputes at work.)
What is a strike?
A strike is the partial or complete refusal to work, or the slowing down or obstruction of work by employees in order to try to remedy a grievance or resolve a dispute with an employer or more than one employer. It comprises three elements: stoppage, concerted action and purpose.
STOPPAGE A refusal to work (stoppage) is the prime example of a strike and is commonly called a ‘walkout’. It may include refusals to work overtime, embarking on ‘go-slows’ or refusals to comply with conditions of employment.
CONCERTED ACTION Refusals to work will constitute a strike only if there is an understanding between the workers to act in a concerted fashion against their employer. The strike must be a collective act, not a series of individual acts.
THE PURPOSE The strike must also have a purpose, such as to induce or compel the employer to agree to any demands concerning the terms or conditions of employment, or to refrain from making changes in the conditions of employment. The purpose can also be to compel the employer to dismiss an employee or reinstate a dismissed employee.
Case History – The right to strike
Workers at two manufacturing plants were dismissed for failing to heed an ultimatum to end their legal strike and accept the employer’s wage offer. They then decided they would accept the offer, but this was not acceptable to the employer.
The Industrial Court concluded that the employer, under the guise of a lock-out, had the ulterior motive of wanting to get rid of the workforce and that this was unfair labour practice.
- The Labour Appeal Court disagreed, saying the employer had wanted to dismiss the employees permanently for striking. It said that collective bargaining recognises that it is legitimate to use the bargaining strength that employers and employees have collectively. From the perspective of workers, this means the ability to bring production to a halt by striking. The workers had lawfully exercised their right to strike. The employer had therefore been unfair in dismissing them for exercising this right. They were not reinstated, given the acrimony of the dispute, but were awarded compensation.
(Cobra Watertech v National Union of Metalworkers of SA, 1995)
Procedure for embarking on a strike
Subject to certain conditions, employees have the right to embark on a strike if a dispute they have referred for conciliation is unresolved and if they have given their employers notice.
UNRESOLVED DISPUTES Disputes must be referred to the relevant bargaining councils or statutory councils, or to the commission for conciliation, mediation and arbitration (CCMA) for conciliation. A dispute is unresolved if a certificate to this effect has been issued, or if 30 days have elapsed since the dispute was referred to the council or CCMA. This time limit may be extended by agreement of the parties to the dispute. (See disputes at work.)
GIVING NOTICE Employees must give their employers at least 48 hours’ notice of their intention to strike unless:
- The issue in dispute has to do with a collective agreement to be concluded in a bargaining or statutory council, in which case the council must be informed;
- The employer is a member of an employers’ organisation, in which case notice must be given to the employers’ organisation concerned;
- The employer is the state, in which case seven days’ notice must be given.
If a dispute has to do with a refusal to bargain, an advisory award must first have been given by the relevant statutory or bargaining council or CCMA before employees can give notice of their intention to strike.
Exceptions to the standard procedure
Employees do not have to follow the procedure before embarking on a strike if:
- The parties to a dispute are members of a bargaining or statutory council and the dispute has been dealt with in accordance with its constitution;
- The strike conforms with the procedures in a collective agreements;
- The strike is in response to a lock-out which is not protected by the LRA;
- An employee or trade union has, in its referral of the dispute, demanded that an employer withdraws a unilateral change to terms and conditions of employment within 48 hours of the demand being put and this has not been done.
Limitations on the right to strike
No strikes are permitted if:
- The employee is bound by a collective agreement which prohibits strikes about the issue in dispute, or which requires the issue to be referred to arbitration
- The issue in dispute is one which may be referred to arbitration or the labour court by any party;
- The employee is engaged in an essential service or a maintenance service.
EXCEPTIONS Even if a dispute is one which may be referred to arbitration or to theLabour Court, a person may strike if the issue in dispute has anything to do with the organisational rights of trade unions. If a registered trade union has given notice of its intention to strike in such a case, it may not refer the dispute to arbitration for 12 months from the date of the notice.
Subject to collective agreements, no employee may take part in a strike if that person is bound by:
- An arbitration award or a collective agreement which regulates the issue in dispute;
- A wage act determination during the first year of the determination;
- A statutory councils recommendation which has been made a determination by the Minister of Labour.
A secondary (or ‘sympathy’) strike is one in which employees strike to support employees engaged in a different strike. The purpose might be, for instance, to compel employers to put pressure on the employer of the striking workers to accede to their demands.
A sympathy strike need not be a total refusal to work – there can be a refusal to handle the goods or products of the employer whose workers are on strike. For example, in 1981 workers in the motor trade were asked not to handle tyres of a particular company after that company had dismissed a number of employees for striking. The company eventually came to an agreement with the union and the ban was called off. Even though the strike was illegal at the time, the workers and the union were not charged.
A strike is not classified as a secondary strike if the employees have referred their demand to a council and they have a material interest in the demand. No person may take part in a secondary strike unless:
- The strike that is to be supported meets the standard procedural requirements;
- The employer of the employees taking part in the secondary strike has received notice of the intention to strike at least seven days before the strike is due to start;
- The nature and extent of the secondary strike is reasonable in relation to the possible direct and indirect effect that it will have on the business of the primary employer to settle the dispute.
If a secondary strike does not comply with these conditions, the secondary employer may apply to the Labour Court for an interdict to stop or limit the strike. The CCMA may be asked to urgently investigate whether the nature and extent of the strike is reasonable and the court must take the findings into account.
Case History – When the diamond cutters refused a cut in wages
The Master Diamond Cutters’ Association (an employers’ organisation) decided to reduce the wages of employees by one-third from the week commencing 24 February 1947.
The South African Diamond Workers’ Union applied for a conciliation board to be established, but it failed to settle the dispute.
As a result, employees refused to enter into new contracts of employment at reduced wages and work stopped until an agreement was reached, under which the workers agreed to accept a cut of 25 per cent. The Supreme Court was called upon to decide whether what had taken place was a strike or a lock-out.
- In its judgment on the matter, the Appellate Division of the Supreme Court held: ‘At first sight, it would appear that there was both a lock-out and a strike. It is, however, clear that the legislature intended to draw a distinction between a lock-out and a strike and that it did not intend that the same set of facts should constitute both a lock-out and a strike . . . The dispute arose from the action of the employers in notifying their employees that they intended to terminate the existing contracts of employment and enter into new contracts at reduced wages. The employees were locked out and did not go on a strike.’
(Walker v De Beer, 1948)
Case History – The non-strike
Workers at Fine Wool Products of South Africa Limited in Uitenhage were notified that they would be required to work 10 hours overtime each week. The workers intimated that they would refuse to work the overtime unless they were paid two shillings per hour. The employer was prepared to pay only the normal rate of one shilling and five pence. When the workers refused to return to work, they were arrested and charged with striking illegally.
- The court found that there was no agreement in the workers’ employment contracts to work overtime. Their refusal to work was not because they wanted to enforce a new term of employment on the employer, but because the employer wanted to enforce a new term on the workers. Accordingly, their refusal to work was not a strike. The workers were found not guilty.
(Rex v Canqan and others, 1956)
The previous LRA distinguished between ‘legal’ strikes and ‘illegal’ strikes. Under the 1995 legislation, strikes are ‘protected’ or ‘not protected’ by the LRA. A strike which complies with the provisions of the LRA is protected.
CIVIL PROCEEDINGS An employee who participates in a protected strike or in conduct in contemplation or furtherance of a protected strike does not commit a dekict or breach of contract. Civil proceedings may not be instituted against any person for taking part in such an action even if the act in question is an offence under the Basic Conditions of Employment Act or the Wage Act. An act that is an offence under any other legislation is not protected under these provisions.
PAYMENT An employer is not obliged to pay a striking employee. However, if the employee’s remuneration includes payment in kind (accommodation, food and other basic amenities of life), the employer must keep this up at the request of the employee. Once the strike is over, the employer may institute civil proceedings in theLabour Court to recover the monetary value of the payment in kind.
DISMISSAL An employer may not dismiss an employee for participating in a strike which is protected or in conduct which is in contemplation or furtherance of a protected strike. However, an employer may fairly dismiss an employee for a reason related to the person’s conduct during the protected strike, or because of an operational requirement.
FAILURE TO BALLOT The legal protection offered to a strike may not be challenged on the grounds that a registered trade union did not comply with its constitution by conducting a ballot among its members before embarking on a protected strike. This may not be used as a ground for litigation against the union either.
Strikes which are not protected
In the case of a strike which is not protected under the LRA, the Labour Court may grant an interdict or an order restraining any person from participating in a strike and to order the payment of just and equitable compensation for any loss which can be attributed to the strike. An award of compensation must take into account:
- Whether attempts were made to comply with the provisions of the LRA;
- Whether the strike was premeditated;
- Whether the strike was in response to unjustifiable conduct by another party;
- Whether there was compliance with an earlier interdict or order;
- The interests of orderly collective bargaining in the situation;
- The duration of the strike;
- The financial position of the trade union or employees involved.
Participation in a strike which is not protected may constitute a fair reason for dismissal.
Picketing is a means of trying to persuade fellow workers to join a strike or oppose a lock-out. A registered trade union may authorise a public picket by its members and supporters to support a protected strike or to oppose an employer’s lock-out.
This can be done outside the premises of the employer or on the premises if permission is granted. The CCMA must try to secure an agreement between the parties on rules for the picket if it is requested to do so. If no agreement can be reached, the CCMA must establish rules, which may provide for picketing on the employer’s premises if the CCMA is satisfied that permission has been unreasonably withheld. Disputes about pickets may be referred to the CCMA for resolution by conciliation or, if this fails, to the Labour Court.
Essential services and maintenance services
Strikes and lock-outs are not permitted in essential services or maintenance services because of the nature of these services. Essential services are services which, if they are interrupted, will endanger the life, personal safety or health of the whole or any part of the population. The LRA deems the parliamentary service and the South African Police Service to be essential services.
Maintenance services, by contrast are services which, if interrupted, have the effect of material physical destruction to any working area, plant or machinery.
The CCMA’s essential services committee can designate a service, or a part of a service, as an essential service or a maintenance service.
MINIMUM SERVICES The committee can ratify a collective agreement which provides for minimum services to be maintained during a strike. The agreed minimum services are then regarded as an essential service but the dispute resolution mechanisms applying to other essential services do not apply.
DISPUTES Disputes in essential services must be referred to a council or to the CCMA if no council has jurisdiction. If the dispute cannot be resolved by conciliation, it may be referred for arbitration. If parliament passes a resolution that an arbitration award is not binding, the dispute must be referred to the CCMA for further conciliation and arbitration.
Case History – The mass dismissal
Four hundred workers at the Wolseley Fruit Canning Company stopped work in protest at the dismissal by the company of three fellow workers a few days earlier. The striking workers stayed on the premises until 6pm and then left. Although they returned the next day, they continued to refuse to work.
At 5pm the managing director of the company dismissed the workers for refusing to work. When the workers returned the next day, they were warned that only those who were willing to work would be allowed on the premises. Despite this warning, however, everyone entered the premises and refused to work. The police were called and 343 workers were arrested and charged with trespassing.
The workers argued that they could not be trespassing on their employer’s property, while the prosecution contended that they had been summarily dismissed and therefore were not entitled to be on the property.
- The court found that an employer clearly has the right to dismiss an employee who refuses to carry out a contractual obligation to work. The Industrial Conciliation Act (now the Labour Relations Act) did not ‘legalise’ a breach of the contract of employment and the employer was not deprived of this common-law right to dismiss an employee who refused to work. Accordingly, the workers were no longer employees and were therefore no longer allowed to be on the premises. They were found guilty as charged.
(Rex v Smit and others, 1955)
This is commonly known as ‘scab labour’. Employers may not employ workers to continue or maintain production during a protected strike if part of the service provided by the employer is a maintenance service. Replacement labour may also not be engaged to perform the work of an employee who has been locked out unless the lock-out is in response to a strike.
‘Protest action’ is a partial or concerted refusal to work or the slowing down or obstruction of work to promote or defend the socio-economic interests of employees.
Every employee who is not engaged in performing an essential service or maintenance service has the right to take part in protest action which meets the following conditions:
- The action must have been called by a registered trade union or federation of unions;
- The union or union federation must have served a notice on the National Economic Development and Labour Council (NEDLAC) stating the reason for and nature of the action;
- The parties concerned must have tried to resolve the matter through Nedlac or any other appropriate forum;
- The union or union federation must have informed Nedlac of its intention to proceed with the action at least 14 days before it is due to begin.
COURT ORDERS The Labour Court may grant an order to restrain any person from taking part in protest action or any conduct in contemplation or furtherance of protest action that does not comply with these conditions. The court may also grant a declaratory order about a protest action which does comply once it has considered the nature and duration of the protest action, the steps taken by the union or union federation to minimise the harm caused by the action, and the conduct of the participants in the action.
PROTECTION FOR EMPLOYEES Participants in protest actions which comply with the conditions are protected in the same way as those participating in protected strikes. However, employees who participate in protest action in spite of a court order lose their protection against dismissal.