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HR 101 – What to do When . . . Your Staff Want to Strike – Part 3

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Please note that this pertains to South African Labour Relations and Best Practice Requirements.

Today we are going to look at when a strike is considered protected. This means that there are certain procedures that the staff and unions have to follow before the strike can be deemed protected.

In terms of Section 64(I)(a), the first thing that needs to happen is that the employees need to have referred the dispute for conciliation. They can’t just decide that there is a ‘dead lock’ in negotiations and they will therefore strike. They have to refer the dispute to the CCMA or the bargaining council. Clearly, it is incumbent upon the employees as well as the employer to try and resolve the dispute before any strike can take place.

After that, should a Certificate of Outcome, stating that the issue has been resolved, be issued or after 30 days (or any extension to this that has been agreed to by the employer and the employee) after the first referral was received by the bargaining council or the CCMA, employees will have the right to strike. Remember that it is one of the two alternatives, not both.

The second thing that needs to happen is that the staff must give the employer a notice of intention to strike. The employer needs to receive the notice of intention to strike at least 48 hours prior to when the strike will begin. The notice of intention to strike must clearly state the starting time and date of the strike. Please remember that if the dispute relates in any way to a collective agreement that was decided and completed, in a bargaining council then the notice of intention to strike must also be given to that council. In the instances where the employees are also members of their employer’s organization that is also a part or been part of the dispute in question, then the notice of intention to strike must also be given to that particular organization too.

The third thing that has to happen is that if the issue in dispute is about a refusal to bargain, the employees must obtain “an advisory arbitration award”. This advisory arbitration award must be obtained prior to the notice of intention to strike being issued.

A question that is often asked is whether a strike can be called unprotected even if the procedures that have been documented above have been followed.

The answer, as always is as clear as mud – yes it can, depending on what the dispute is about. Clearly, each case should be judged on its own merit because of the way in which things are “written” and documented. It’s about the law you see, and usually, anything to do with the law means that some bright spark somewhere will find a loophole or something that has not been clearly (enough) documented.

Let’s have a look at an example of this.

George and his fellow colleague, have insisted on a minimum wage of R25.00 an hour. Mike is prepared to pay R8.00. Eventually, after much negotiation and name-calling, both parties agree that R10.00 per hour is a fair amount for the minimum wage, across the board. The union then decides, well they think it should be R11.00 – nothing prevents them from asking for more than what has already been agreed to. The Union now says that Mike is refusing to bargain and they proceed to put the procedures in place to start the strike process. In this particular instance, a clause needs to be inserted allowing for an increase to the minimum wage. This will negate the necessity for collective bargaining about wages increases at the shop floor level.

As you, the employer can see, however, it is in your own best interests (not to mention the drain on your financial resources) to get a really good Labour Attorney involved in any of these types of discussions or negotiations as failure to cross the obligatory “t” or dot the “I” could result in costing you a lot of money in the long run.

That all said, there are also some instances where employees can strike without following any kind of procedures.

If Mike were to change the working hours, or the age of retirement or the benefits that have been documented in the Letters or Contracts of Employment, without entering into any kind of negotiation with the employees, George and his fellow workers could go on strike and because the regulatory issues governed in Section 64(4), if Mike does not restore everything to the way it was, they would not have to follow any of the procedures that would normally have to be followed before submitting a notice of intention to strike.

Next week we will have a look at some tips on how to control strike action.