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:
- 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.
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