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TSHWANE UNIVERSITY OF TECHNOLOGY

UNPROTECTED AND PROTECTED STRIKES IN

SOUTH AFRICA

Submitted in partial fulfillment of the requirements

Of National Diploma in Legal Assistance

(Course: ND Legal Assistance)

(Subject: Legal Research Writing)

LECTURE: MR N TSHISEVHE

BY:

APRIL SEUN MAHLANGU

Student number: 212271616

Phone number: 0797550048

Email address: seunaprilmahlangu@gmail.com

15 MAY 2015

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DECRLARATION

I, the undersigned, APRIL SEUN MAHLANGU, hereby declare

That this is my own work and that I have duly acknowledged the sources that I have

used

APRIL SEUN MAHLANGU

……………………….. 15 MAY 2015

SIGNATURE DATE

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ACKNOWLEDGEMENT

I would like to thank the following persons for their input and a big role they played on

helping me while complying this research. MR N TSHISEVHE who overlooked my topic

and gave me a clear direction on how to tackle it MR T GAULA .who has been available

for consultations whenever I needed him and going through my research checking for

the mistakes I have made.

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TABLE OF CONTENTS PAGE NO:

1. Introduction …………………………………………………………………….5

1.1. Problem Statement .............................................................................5&6

2. Historical background.………………………………………………………….6

3. The Nature Of Protected And Unprotected Strikes.…………………………7

3.1. Definition Of A Strike……………………………………………………….7

3.2. Protected Strike……………………………………………………………..7-8

3.3. Unprotected Strike………………………………………………………….9

4. Statutory And Legislative Framework.………………………........................10

4.1. International Labour Organization (ILO) ..............................................10

4.2. Constitution Of RSA Of 1996…………………………….........................10-11

4.3. Labour Relations Act Of 1995……………………………………………..11

4.4. Basic Condition Of Employment…………………………………………..12

5. Dismissal ON Protected & Unprotected Strikes.…………………………….12

6. Procedural Fairness In Unprotected Strike Dismissals……………………...13

7. Consequences Of Protected & Unprotected Strikes………………………...13-14

7.1. Protected Strikes…………………………………………………………….13

7.2. Unprotected Strikes…………………………………………………………14

8. Legal Remedy……………………………………………………………………15

9. Conclusion……………………………………………………….........................16

10. Bibliography………………………………………………………………………17-18

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1. Introduction

Strike action has over the years remained a thorny and highly contested issue for both

employees and employers. In all matters of Labour relations in the workplace, it has

always stood above other matters as one issue which in many instances diluted a

cordial relationship that may exist between employees and employers. It is an integral

part of the collective bargaining process which places many employers in a difficult

situation. In other words, for production to be optimum and sustained, a strike action

would indeed not contribute positively to such a desired environment from the

perspective of employers. A pertinent question that needs to be raised is ‘why a strike

action takes place in the first instance while its consequences are far reaching?’ A strike

action generally takes place as a last resort exercised by employees with the aim of

achieving a specific objective.It is a mechanism that is used by employees to exert

pressure on the employer to yield to a particular demand of mutual interest. Mention

should be made that it is an accepted phenomenon that every action has

consequences, either positive or negative. In an attempt to respond to an earlier

question as to why a strike action takes place despite the fact that sometimes it may

lead to undesirable outcome, perhaps it would be proper and crucial to shed light on

what is actually implied by a strike. An explicit definition thereof would be provided in the

ensuing section that deals with the definition of concepts.

1.1Problem statement and purpose

The right of employees to strike is affirmed by the Constitution of the Republic of South

Africa in terms of section 23 (2) (c)1 (the Constitution)1. It should also be noted that all

the rights as contemplated in the Constitution, have some limitations as encapsulated in

section 36 (1-2). Section 39 (1-3) of the Constitution further places into context

implications for striking employees especially those participating in an unprotected strike

in the sense that it gives impetus as regard to the interpretation of the rights, which

haveto be consistent with the principles and values as outlined in the subsections

1 The Constitution of the Republic of South Africa 108 of 1996.

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mentioned above.The Constitution on its own however does not give any detail

regarding implications for those acting incongruently in relation to the rights, hence the

need to unpack the study with special reference to the relevant statutes. One such

statute is the Labour Relations Act 66 of 1995 (the LRA)2.From the very beginning, the

purpose of granting protection to striking employees was and still is to encourage them

to comply with the statutory provisions even before and or while contemplating to resort

to industrial action. Under the ambit of the 1956 Labour Relations Act, non-compliance

provided the employers with the opportunity to pursue criminal liability and it was also

characterized by possible dismissal.

2. Historical background

Although there were a series of major strikes1913and 1993, the pivotal event in the

development of the law of strikes in South Africa was the 1922 rand rebellion when

armed commandos of white miners clashed with police, resulting in 153 Person killed

and 534 wounded. The cause of was attempt by mining house, taking advantage of high

unemployment in the post-war years to reduce wage generally and reintroduce black

labour in skilled jobs3. The rebellion demonstrated the power of unregulated strikes and

resulted in the government passing the industrial conciliation Act 11 0f 1924 which

imposed limitations on the right to strike by making a strike illegal unless the legislation

requirements of attempting to settle the dispute in either the industrial council or

conciliation board were adhered to most black workers were excluded in terms of the

Act’s definition of employee; consequently the were unable to form or join registered

trade unions, the perquisite for use of the Act dispute resolutions procedure. The result

of this exclusion was that black human beings were not granted the right to strike

legally. Black trade unionism was never prohibited statutorily but inability to register

under the Industrial Conciliation Act of 1924 meant that blacks trade union had to

operate outside industrial council system, relying on the common law, and being

governed by native Labour Law (settlement of disputes) Act no 53 of 1956 (LRA)4. In

2 In the Labour Relation Act section 68 (1) no 66 of 1995. 3See generally TRHD davenport South Africa: a modern history. 4In terms of section 53 of 1956 (LRA).

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1956 the state tightened control over a non-racial unionization by empowering the

splitting up of existing unions and ending formal recognition of non-racial unions.

3 The Nature/ AN Overview OF Protected AND Unprotected Strikes

3.1 Definition of a strike

Strike action is an essential element in the collective bargaining process5.It ensures that

employer bargains more fairly .Collective refusal to work balances the employer‘s ability

to make unilateral decisionto lock out the workers or shut down the business .A strike is

a deliberate and concerted withdrawal of Labour and its represents the worker’s

ultimate weapon agents the employer. If it is accepted that collective bargaining is the

best way to resolve dispute and that the right withhold one’s Labour is part and parcel

of this process .The Labour Relations Act 66 of 1995 (LRA) it embrace clearly the view

that strike are functional to collective bargaining and as such the integrity of the

bargaining agents is of paramount importance 6 .Therefore strike should enjoy

considerable job security provided they play collective bargaining game according to

the rules as laid down by the LRA. The object of the law should not criminalize striking

but regulate it .the fact that the strike lose their income for the duration of a strike will .

Refusal to work only constitutes a strike if two or more workers participate. The workers

may, however, work for different employers, as long as the refusal to work has a

common work-related purpose.So a domestic worker cannot strike alone, but

mineworkers working for different employers can. There are also two types of strike

action: protected strikes and unprotected strikes.

3.2 Protected Strike

The term "protected" strike action refers to a lawful strike which is in compliance

with the requirements of the Labour Relations Act 1995 ("LRA"). The effect of

embarking on protected strike action is that no employee may be dismissed by

reason of their participation in the strike, nor do they commit a breach of their

contracts of employment by participating in protected strike action. The protected

5In terms of the LRA no 66 of 1995 (book a practical guide to labour law 7th edition). 6In terms of labour relations act no 66 of 1995.

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strike comply with the section 64 of the Labour Relations Act (LRA) 7 , the

employees must comply with section 64 of the LRA unless if there are specific

procedures provided for in a collective agreement which binds the parties

involved8.The LRA provides for protection against dismissal as well as civil action

only when the strikers comply with the prescripts of the statute9.

In order for other strikes or lock-outs about disputes to be protected, workers or

the employer must follow these steps: If the employees are part of a collective

agreement which has a dispute resolution procedure, then that procedure must

be followed. Otherwise the dispute must be referred to the Commission for

Conciliation, Mediation and Arbitration (CCMA) or the relevant Bargaining

Council. The CCMA or Bargaining Council must try to settle the dispute within 30

days of receiving the dispute. If conciliation is successful, it means both parties

are satisfied and no industrial action will be taken10. If conciliation within 30 days

is unsuccessful, the parties must wait until the CCMA or Bargaining Council

sends or provides them a certificate which states that the dispute has not been

resolved. Only then can either party take industrial action. In the case of a

proposed strike, the employees must give the employer at least 48 hours' written

notice that they intend to take industrial action. If the employer is the state, the

employees must give at least 7 days' notice. This notice must be specific about

the time of the strike and what form the strike will take.In the case of a proposed

lock-out, the employer must give the employees at least 48 hours written notice

that it intends to lock the employees out.

7 In terms of the labour relations act no 64 of 1995 (Right to strike and recourse to lock out) 8In terms of section 64 of the Labour Relations Act of 1995 (LRA). 9See section 67 (4) and (6) (a) of the LRA. 10www.labourwise.co.za/.../protected-strikes[accessed on 10 April 2015].

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3.3 Unprotected strike

Action refers to unlawful strike which do not compile with the requirement of section 64

of the Labour Relations Act of 1995. The courts are not sympathetic towards employees

who go on an unprotected strike. If an employer dismisses employees who go on an

unprotected strike, it is not likely that the court will help these employees. A strike won't

be protected if proper procedure is not followed or if any of the following apply: The

issue being disputed is protected from strike action by a collective agreement.

According to this Act, or to any collective agreement, the matter must be referred to

arbitration or to the Labour Court. An aribtration award, collective agreement or sectoral

determination regulates the issue. The parties are involved in providing an essential

service 11 or maintenance service 12 .The LRA does not provide protection to the

employees from dismissal because they do not comply with the prescripts of the statute.

In the case of (Ceramic IndustriesLtdT/A BettaSanitaryWare v

NationalConstructionBuilding&AlliedWorkersUnion&others)the court rejected the

argument of the employer that the fact that employees did not specify the exact time at

which the strike was to start, rendered that to be illegal.The court further stated that

employees are not obliged to commence the strike at the time stipulated in the notice,

the right to strike acquired by the proper giving of notice is not waived if the employees

commence the strike within a reasonable period after the stipulated time13. In the case

of In Coin Security Group (Pty) Ltd v Adams & othersthe court held that the union

officials wereclearly aware that the strike was unprotected and even though the strikers

themselves might not have known that the strike was unprotected, they stood to gain

collectively from the strike, and could not therefore claim to be absolved because the

union’s gamble had failed14.

11(e.g. SAPS, and any service that protects personal or public safety) 12(i.e. where the interruption of that service will physically destroy the working area) 13Ceramic IndustriesLtdT/A BettaSanitaryWare v

NationalConstructionBuilding&AlliedWorkersUnion&others. 14(2000) 21 ILJ 2731 (LC).

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4. Statutory and Legislative Framework.

4.1. International Labour Organization (ILO).

The employers’ side had criticized that the Committee of Experts on the Application of

Conventions and Recommendations of the ILO (referred to in the following as: the

Committee of Experts) in many cases censures failure to respect Convention no. 87,

citing that a right to strike has not been upheld by the respective countries. This

Convention, according to the employers, neither stipulates an explicit right to strike, nor

does the Committee of Experts have a mandate to interpret Convention no. 87 in this

manner. This initiative on the part of the employers is without parallel in the history of

the International Labour Conference and is potentially explosive as far as the tripartite

structure and mode of work of this organization are concerned. Although the delegates

were able to once again agree upon a list of countries at the 2013 Labour Conference –

in this case 26 in sum –, this was only subject to the proviso that no issues involving the

right to strike would be discussed; the representatives of the employers furthermore

repeatedly rejected an »ILO right to strike«. The dispute has therefore by no means

been resolved. On the contrary: the debate continues to rage at different levels within

the ILO, in particular over the mandate of the Committee of Experts and the question as

tohow the ILO monitoring mechanism can be strengthened.15

4.2Constitution OF RSA OF 1996.

The Constitution contains a general limitation clause in section 36 which permits the

limitation of rights under certain circumstances. The right to strike is a fundamental right

protected by the Constitution and as such may only be limited in terms of a law of

general application, and only to the extent that the limitation is reasonable and justifiable

in an open and democratic society based on human dignity, equality and freedom. The

following factors must be taken into account in determining whether a limitation of a

fundamental right is permissible, namely:

· the nature of the right;

15In terms of the ILO.

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· the importance of the limitation;

· the nature and extent of the limitation;

· the relation between the limitation and its purpose; and

· less restrictive means to achieve the purpose.

right to strike is a constitutional right afforded to all employees in terms of section

23(2)(c) of the Constitution of the Republic of South Africa, 108 of 1996 (“the

Constitution”), however, the LRA does contemplate restrictions on the right to strike in

respect of those employees who are engaged in essential services 16.In NUMSA v

Bader Bop, the Constitutional Court overturned a decision of the Labour Appeal Court

which restrictively interpreted the Labour Relations Act 1995. The court recognized the

necessity of collective bargaining and bargaining councils which facilitate the

establishment of trade unions. The court held that minority unions may not strike in

support of demands for organizational rights reserved in the Act for majority unions17.

4.3 Labour Relations Act Of 1995

The Labour Relations Act is a law of general application within the meaning of section

36 of the Constitution and builds on the foundations of the Constitution by providing

that: Every employee has the right to strike and every employer has the right to lock-out.

The Labour Relations Act contains a definition of a strike which reads as follows:

“’strike’ means the partial or complete concerted refusal to work, or the retardation or

obstruction of work, persons who are or have been employed by the same employer or

by different employers, for the purpose of remedying a grievance or resolving a dispute

in respect of any matter of mutual interest between employer and employee, and every

reference to ‘work’ in this definition includes overtime work, whether it is voluntary or

compulsory. In Simba (Pty) Ltd v FAWU & others workers refused to comply with

theemployer’s instruction to work a new shift system. The court held that this merely

amounted to a concerted refusal to work’. The court found that the workers were not

16Constitution of RSA of 1996. 17http://en.wikipedia.org/wiki/South_African_labour_law. [accessed on 14 may 2015]

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making a demand, and had raised no complaint; they were simply refusing to comply

with the employer’s demand18.

4.4.Basic Condition OF Employment.

Purpose is to advance economic development and social injustice by establishingand

enforcing basic conditions of employment.

Primary Objectives: Give effect to and regulate the right to fair Labour practices as

contained in Section 23(1) of the Constitution by establishing and enforcing

basicconditions of employment. Give effect to obligations incurred by the Republic as

member state of theInternational LabourOrganization19.

5. Dismissals on Protected & Unprotected Strikes

Dismissal is another option available to employers dealing with a strike not in

compliance with requirements of a protected strike. Of immediate consequence for

participating in such a strike is that the action on its own constitutes a fair reason to

dismiss workers20. It is an act of misconduct21. However it cannot be justified to dismiss

workers who participate in an unprotected strike without following due processes. The

Code of Good Practice: Dismissal (the Code) of the LRA serves as a guideline to

employers on how to deal with employeeswho take part in unprotected strike

action.Judgement in Modise & Others v Steve’s Spar Blackheath 22 is a typical

example of dismissing unprotected strikers without affording them an opportunity to be

heard.

181998) 9 BLLR 1 (LC). 19In terms of basic condition of employment. 20See section 68 (5) of the LRA. 21See section 68 (5) of the LRA. 22Modise and others v Steve's Spar Blackheath (JA29/99) [2000] ZALAC 1 (15 March 2000).

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6 Procedural Fairness In Unprotected Strike Dismissals

Item 6(2) of Schedule 8 of the Code of Good Practice: Dismissal of the Labour

Relations Act of 1995 states that employers should contact a trade union official “at the

earliest opportunity” before dismissing strikers in order to “discuss the course of action it

intends to adopt. Clearly this provision will only apply to strikers who are union

members23.The provision appears to have a two-fold purpose, namely “to give the union

an opportunity to dissuade the employer from dismissing the strikers” and “to give the

union an opportunity to persuade the workers to return to work”. This provision does

not, however, allow the union to insist on a delay, where the union itself does no have

the intention of doing anything constructive to end the strike24. In Doornfontein Gold

Mining Co Ltd v National Union of Mineworkers & others25 it was held that an

extension of an ultimatum would have enabled the union to help end the strike before

dismissals became necessary.

7. Consequence of Protected & Unprotected Strikes

7.1 Protected Strikes

The legal consequences that may follow from a protected strike are that an employee

may not be Dismissed for taking part in such a strike. Nor does the employee’s action

constitute a breach of the employment contract because the right to participate in lawful

strike action is guaranteed by the Constitution.

Furthermore, both the employer and employee may claim compensation for any losses

incurred during the strike action. This means that the longer a strike continues, the

worse the financial repercussions are for all concerned. Employees are still expected to

act responsibly during the course of conducting a strike because they may still be

dismissed for misconduct and any regular criminal offence committed during the course

of the strike.

23 Of the Labour Relations Act of 1995. 24 See, for example, National Union of Metalworkers of SA v Datco Lighting (Pty) Ltd (1996) 17 ILJ 315 (IC). 25 (1994) 15 ILJ 527 (LAC).

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7.2 Unprotected Strikes

Interdict

The Labour Relations Act “LRA” also empowers the Labour Court to grant an

interdict or order to restrain any person from participating in a strike or any

conduct in contemplation or in furtherance of a strike if the strike does not comply

with the provisions of the LRA. Failure to comply with such an interdict or order is

a factor which the Labour Court may take into account in ordering just and

equitable compensation.

Compensation

In addition to granting of an interdict, section 68(1)(b) of the LRA, grants the

Labour Court the jurisdiction to order the payment of just and equitable

compensation for any loss attributable to the strike26.

In deciding whether the order of the payment of compensation is just and

equitable the Labour Court must have regard to the following:

whether attempts were made to comply with section 64 of the LRA;

whether the strike was premeditated;

whether the strike was in response to an unjustified conduct by the other

party to the dispute;

the duration of the strike;

The dismissal of strikes

Participation in an unprotected strike may in terms of section 68 (5) of the Labour

Relations Act (LRA) 27 constitute a fair reason for dismissal. In deciding whether a

dismissal was fair the provisions of the Code of Good Practice dealing with dismissals,

as contained in schedule 8 of the LRA, must be taken into account. Item 6 of the Code

of Good Practice states that participation in an unprotected strike constitutes

misconduct.

26 In terms of section 68(1) of the Labour Relations Act(LRA) 27In terms of section 68 (5) of the Labour Relations Act (LRA)

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8. Legal Remedy

The Labour Relations Act gives striking employees the opportunity to participate in

strike action that when regarded as procedural and also provide them with some form of

protection28. The unlawful strike (unprotected strike) in terms of the current LRA are

merely discouraged .

Restraining interdicts

in terms of section 68(1) 29 give the Labour court jurisdiction to grant an interdict

restraining any person from participating in a strike that does not comply with the

Labour Relations Act or any conduct in contemplation of such strike.

Compensation

The Labour court also has jurisdiction to order the payment of just and equitable

compensation for any loss attributable to an unlawful strike (unprotected strikes).

Disciplinary action short of dismissal

The disciplinary penalty most commonly imposed on strike after their work is a written or

final written warning. Dismissal expressly states that unprotected strikes may be

regarded as a form of misconduct justifying dismissal.

Termination of the contract

Dismissal can also be used as a tactical weapon especially when it is couple with an

invitation to dismissed employees to re-apply for their jobs30.

28 In terms of (LRA) of 1995. 29 No 66 of 1995 Labour Relations Act (LRA). 30www.saflii.org.za[Accessed on 12 may 2015].

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9. Conclusion

The effective management of a strike is generally a challenging phenomenon which

impacts on employers, employees and the general public. The main purpose of this

study was to analyze the legal implications of employees’ participation in an

Unprotected strike& Protected strike. The study also explored requirements for a strike

to be protected in compliance with the prescribed legislation. From the literary review,

cases and legislation, it became clear that compliance plays a key role when a

consideration is taken by employees to take part in a strike during dispute resolution.

South Africa is facing with a huge problem of long strikes which take place mostly in

mineral industries and also government sector. South African strikes come at cost to

some or all citizen, a cost that is felt in financial, social and economy. Strikes benefits

some from the broader economy by raising the spending power of lower paid. In other

cases perhaps most cases they come at a cost to all side and to the wider economy.

The strikes had leaded foreign investors to lack trust into our country which is not good,

because those foreign investors who were thinking of coming to South Africa with an

intention to invest they tend to look for other countries, even investors who are already

in South Africa are closing down some of the firms which leaves many South Africa’s

unemployed. The minerals industry and government sector they must in order to stop or

prevent this long strikes from happening again they should each every year conduct a

meeting with its employees trade unions, with an intention of considering the employees

issues. Issues patterning working conditions, overtime payment and salary or wages

increase conditions.

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11. Bibliography

Books

1. A Practical guide lab our law seventh edition: authors JV du Plessis and Ma

Fouche

2. The Lab our Relations Act 1995: authors D.Woolfrey, J Murphy

3. The New labour law: authors M. Brassey, E. Cameron

4. Strike, lock-outs and arbitration in South Africa: Benjamin, Jacob us and Arberty

Website

1. http://www.workinfo.com/free/downloads/5 [accessed on 13 may 2015]

2. www.golegal.co.za/tags/unprotected-strike[Accessed on 8 April 2015]

3. www.labourwise.co.za/.../protected-strikes[Accessed on 10 April 2015]

4. http://www.southafrica.info/business/economy/policies/tradeunions.htm#.VSj0TWcaLcs

5. www.saflii.org.za [Accessed on 12 may 2015]

6. www.lonmin.com[Accessed on 29 April 2015]

7. www.labourguide.co.za[Accessed on 17 April 2015]

8. www.enconrsa.org/system/files/publics[Accessed on 17 April 2015]

Legislations

1. Labour Relations Act of 1995 (LRA)

2. Labour Relations Act of 1959 (LRA)

3. Constitution of 1996 (RSA)

4. Basic Conditions of Employment Act 75 of 2007

5. International Labour Organization

Table of cases

1. Ahlesha Blankets vs. SACTWU

2. Mzeku & others v Volkswagen SA (Pty) Ltd (case number PA 3/01) 22 June

2001

3. of Modise and others v Steve’s Spar Black health/Ja29/99/2000

4. Simba (Pty) Ltd v FAWU & others

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5. Ceramic Industries Ltd T/A Betta Sanitary Ware v National Construction

Building & Allied Workers Union & others

6. Doornfontein Gold Mining Co Ltd v National Union of Mineworkers & others