To strike – protected versus unprotected

Every employee has the right, in terms of the Constitution of South Africa, to strike. The Labour Relations Act (LRA) defines a strike as the partial or complete refusal to work, or the retardation or obstruction of work by employees for the purpose of remedying a grievance or resolving a dispute in respect of a matter of mutual interest. 

Labour law distinguishes between a protected strike and an unprotected strike:

Protected strike

For a strike to be deemed “protected”, the LRA stipulates certain provisions and procedures that must first be complied with:

  • Legislation requires that unsatisfied employees first make use of the employer’s internal grievance procedure to try and resolve the grievance.
  • When the outcome of the grievance is not satisfactory, the employee can refer the matter to the Commission for Conciliation, Mediation and Arbitration (“CCMA”).  A commissioner will be appointed and will try to resolve the dispute through conciliation.
  • If the dispute cannot be resolved, or after the lapse of 30 days since the referral of the dispute to the CCMA, the commissioner will issue a certificate stating that the matter is unresolved and that the employees have the right to embark on a protected strike.
  • However, there is still an obligation on the employees to notify the employer in writing of their intention to strike by giving the employer at least 48 hours’ notice of the intended strike.

In South Africa it is generally accepted practice that employees are paid for services rendered. Therefore the ‘no work, no pay’ principle will apply and employers do not have to pay the employees who participate in the strike.

Unprotected strike

If a strike does not comply with the required terms and procedures in terms of the LRA, the strike will be deemed “unprotected”. Employers can take disciplinary action against employees who participate in unprotected strikes, but employers still remain subject to legislation and as such must follow the correct and fair procedures. To ensure that employers handle such a situation correctly, it is extremely important that they seek legal advice from the start in order to limit their risk as far as possible.

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