LABOUR LAW ARR 214 Theme 7 THEME 7 S T R I K E S A N D L O C K - - PowerPoint PPT Presentation

LABOUR LAW

ARR 214 Theme 7

THEME 7

S T R I K E S A N D L O C K - O U T S

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THEME 7 (LEARNING OUTCOMES)

• Discuss the right to strike.
• Define a strike and a lock-out
• Be acquainted with picketing and certain forms of protest

action

• Be acquainted with the conditions to which the right to

strike or recourse to lock-out is subject

• Know the limitations on the right to strike or recourse to
• Know the limitations on the right to strike or recourse to

lock-out

• Know the effect/consequences of a strike or lock-out

either in compliance with the related sections of LRA or not

• Be acquainted with provisions relating to secondary

strikes, essential services, minimum services, maintenance services and replacement labour.

• Discuss the application of strikes through case law.

THEME 7 (INTRODUCTION)

• Strike is essential element in collective

bargaining.

• Balances employer’s prerogative.
• Striking is not criminalised but

regulated.

• Lack of remuneration limits duration of
• Lack of remuneration limits duration of

strike.

• Product market will not tolerate

unreasonable wage demands.

• Job security as long as you play by

rules.

THEME 7 (RIGHT TO STRIKE)

• Sect 23 and 36 of Constitution.
• Chap IV of LRA gives effect to sect 23. Strikes

are legal when all requirements are met and job security is provided.

• Previously: no right to strike – only freedom.

Dismissal for breach of contract.

• 3 Categories of strikes
• Protected strikes Conforms with procedural requirements of
• LRA. No dismissals.
• Protected strikes Conforms with procedural requirements of
• LRA. No dismissals.
• Unprotected strikes Do not conform with procedural

requirements of LRA. Dismissals.

• Prohibited strikes Prohibited by LRA. Dismissals.

THEME 7 (DEFINITION OF A STRIKE)

• Sect 213: Partial/complete concerted refusal to

work/retardation/obstruction of work by persons employed by same/different employers, for purpose of remedying grievance or resolving dispute i.r.o. matter

• f mutual interest.
• Elements of a strike:
• Collective action of workers/ex-workers having a common goal.
• Act/omission.
• Purpose to remedy grievance or resolve dispute. (Also see
• Purpose to remedy grievance or resolve dispute. (Also see

Edelweiss Glass-case.

• Forms of a strike:
• Economic strike (employees withdraw labour to improve conditions
• f employment)
• Secondary strike (employees withdraw labour to put pressure on
• ther employer)
• Go-slow (planned reduction of workpace
• Work-to-rule (reduces workpace)
• Sit-in strike (occupy workplace to obstruct admission)

THEME 7 (PROHIBITED STRIKES)

• Sect 65 prohibits the following strikes:
• Collective agreement in force
• Compulsory arbitration
• Right to refer to arbitration
• Essential services
• Maintenance workers
• First year of sectoral determination
• First year of sectoral determination
• Binding arbitration award/collective agreement/ministerial determination
• Essential services
• Interruption can endanger life/safety/health
• Parliamentary service
• SAPS
• Maintenance service
• Interruption causes material physical destruction to area/plant/ machinery.

THEME 7 (PROTECTED STRIKES)

• Must comply with procedural requirements of sect 64:
• Referral to council/CCMA
• Certificate of non-resolution
• 48 hours written notice to employer (if State is employer, 7 days)
• Commencement of strike after notice period
• Other provisions
• If dispute is over refusal to bargain, advisory arbitration award must be issued

by conciliator before notice is given.

• If in response to unprocedural strike/lock-out, not necessary to comply with sect

64.

• If parties to dispute are member of council and dispute has been dealt with, not

necessary to comply with sect 64.

• If collective agreement prescribes other procedure not necessary to comply

with sect 64.

• If collective agreement prescribes other procedure not necessary to comply

with sect 64.

• If employer unilaterally amended working conditions, only 48 hours notice after

request.

• Reason for retrenchments (See PGL 358-359)

THEME 7 (CONSEQUENCES OF A STRIKE I)

• Protected strikes
• No dismissal for striking
• No delict/breach of contract
• Not obliged to remunerate strikers (See SAMWU-

case)

• Dismissal for misconduct
• Retrenchments
• No civil legal proceedings
• Not in contravention with BCEA
• No civil legal proceedings
• Not in contravention with BCEA
• Failure to conduct ballot
• Limitations on scab labour

THEME 7 (CONSEQUENCES OF A STRIKE II)

• Scab labour
• Maintenance service not be

replaced

• Offensive lock-out: no replacement

labour

• No use of internal replacement

labour

• No use of internal replacement

labour

THEME 7 (CONSEQUENCES OF A STRIKE III)

• Unprotected/Prohibited strikes
• LC may interdict strike
• LC may award compensation, having regard to

Attempts to comply Premeditation Premeditation Response to unjustified conduct by other party Compliance with LC order Interests of orderly collective bargaining Duration Financial position of parties

• Dismissal
• LC has exclusive jurisdiction

THEME 7 (OTHER FORMS OF INDUSTRIAL ACTION I)

Secondary strikes

• See Coca Cola Fortune-case.
• Employees striking in solidarity and in
• Employees striking in solidarity and in

support of other employer’s employees.

• Not in scope of same council and no

material interest.

• Requirements for protection:
• Primary strike must be protected
• 7 days written notice
• Harm caused to secondary employer must be reasonable

in relation to possible effects.

THEME 7 (OTHER FORMS OF INDUSTRIAL ACTION II)

Picketing

• Public expression by employees of

grievances to make it known to general public and to elicit support for their cause.

• Public protesting and dissuading clients.
• Requirements for protection:
• Must be members of union
• Union must authorise picket
• Peaceful demonstration
• In support of protected strike/in opposition to lock-out
• Agreed picketing rules are followed

THEME 7 (OTHER FORMS OF INDUSTRIAL ACTION III)

Protest action to promote/defend socio-economic interests

• Stay-aways (look at purpose to determine validity/legality)
• Partial/complete concerted refusal to work in order to

promote socio-economic interests of workers.

• Requirements for protection are:
• Not in essential/maintenance service
• Union must call/authorise protest action
• NEDLAC must have been given notice
• NEDLAC must have considered matter
• NEDLAC must have considered matter
• Union must give NEDLAC 14 days notice of intention to proceed

with action

• Not be in breach of LC-order

THEME 7 (DETERMINING NATURE AND STATUS OF INDUSTRIAL ACTION)

• Does action fall in definition of strike, secondary strike, picket or

protest action? (Look at nature and aims of action)

• Did employees comply with that specific form’s procedural

requirements?

• Look at PGL364
• Look at PGL364

THEME 7 (LOCK-OUTS)

• Employer’s economic weapon to compel employees to accept offer.
• Exclusion of employees from workplace to compel them to accept

demand.

• Requirements are exactly the same as sect 64
• See NASECGWU-case.

NEXT LECTURE

• Dispute Resolution