Industrial Action
The Labour Relations Act regulates strikes, lock-outs and picketing and it provides certain protections for employers and employees who embark on a lawful strike or lock-out.
Strikes and lockouts
The Act gives effect to employees' constitutional right to strike. It also grants employers recourse to lock out employees.
Issues over which employees can strike and employers can lock out
Strikes and lock-outs may be held over disputes which relate to a matter of mutual interest between employees and their employer. Hoewever a strike or lock-out may not be held if the Act provides that the dispute may be resolved by way of arbitration or adjudication. Some of the issues over which a strike or lock-out may be held are:
- wage increases;
- a demand to establish or join a bargaining council;
- a demand to recognise a union as a collective bargaining agent;
- a demand for organisational rights;
- a demand to suspend or negotiate unilateral changes to working conditions; and
- an unprotected lock-out or unprotected strike by the other party.
Changes introduced by the 2002 Amendment Act permit workers to stage protected strikes over retrenchnments in certain circumstances.
Essential services
Employees in essential services may not strike and employers may not lock-out such employees. This is in line with generally accepted international principles.
The Act defines an essential service as:
- a service, the interruption of which endangers the life, personal safety or health of the whole or any part of the population;
- the parliamentary service; and
- the South African Police Service
If there is a collective agreement in an essential service that provides for a minimum service in that service, then employees engaged in the minimum service may not strike but the rest of the employees may.
How are disputes in essential services settled?
Disputes in essential services go to arbitration if conciliation has failed.
Other forms of industrial action
Picketing
The Act recognises the right to picket.
- Only a registered trade union may authorise a picket.
- A picket may be held at any place to which the public has access outside the premises of an employer. Unions need the employer's permission to picket inside the workplace. If an employer refuses permission for a picket to take place inside the premises, the CCMA may overrule the employer if the refusal to grant permission is unreasonable taking into account the conduct of the picketers, the duration of the picket and the number of employees taking part.
- The picket must be peaceful.
- The parties must take account of any picketing rules to which they have agreed and must take into account the code of good practice on picketing issued by NEDLAC.
Secondary Action
The Act makes specific provision for secondary action. Secondary action happens when employees strike in support of a strike by other employees. It does not include a strike over a demand which has been referred to a council if the strikers are employed within the registered scope of the council, and they have a material interest in the demand of the main strikers.
Protect action to defend the socio-economic interests of employees
The Act also makes provision for protected stayaways in support of socio-economic issues. The issue must be raised at NEDLAC or a similar forum and the action must be authorised by a registered union or federation. Even if these requirements are met, the Labour Court can remove protection against dismissal if participants does not comply with any order it issues to regulate the stayaway.