Please note that this pertains to South African Labour Relations and Best Practice requirements.
How much do we actually know about when the employee can strike and when they can’t?
Let’s explore this situation together. Firstly let’s have a look at when employees can’t strike.
According to the Department of Labour and the Labour Relations Act (LRA), employees cannot strike if (but not limited to)
1. the employees have entered into an agreement that they have collectively entered into that then prevents them to strike because of the reason why they want to strike. Ok that sounds very confusing, let’s give an example. Let’s say that the workers and management have all agreed to an incentive bonus at the end of the year based on performance and turnover and profit. The first year that this is happening, the performance of the employees has not been great and this has resulted in the company not making targets because the turnover was not great and then because of huge theft in the warehouse, the profits are really bad. The union cannot now call for the company to present 13th cheques as a bonus. In this instance if the workers went on strike it would be deemed illegal.
2. the employees have entered into an agreement where any disputes have to be referred to arbitration. What does this mean, let’s have another example. The employees (and/or the Union) have signed a document stating that they will not strike and/or call for strike action until an issue (whatever that issue and/or disagreement may be) has been referred to arbitration. If the matter is still at a deadlock, with neither side being able to move, then under certain conditions (and they then have to list these), strike action may be called for. So the employer offers an increase of 8%, the employees decide that that is not good enough, they want an increase of 20%. Neither side backs down and the union now calls for strike action. In this instance if the workers went on strike it would be deemed illegal because they have not gone through the arbitration process.
3. ‘the issue in dispute is one that a party has the right to refer to arbitration or the Labour Court in terms of the Act.’ Again – what does this mean? Let’s assume that one of the employees was caught with his hands in the cookie jar so to speak. He has stolen large quantities of money and he has been disciplined and found guilty of misconduct and he has been dismissed. His fellow workers are really angry about his dismissal because they pretty much like the guy and well stealing from your employee is actually not a bad thing, so they go on strike demanding that he be re-instated. This would be considered an illegal strike as the dismissed employee has not (yet) gone to the CCMA for arbitration.
4. the employee works in what is considered an essential service or a maintenance service. So this would be people like nurses and/or the refuse removal guys and so on.
Next week let’s look at exactly what a strike is and when a strike can happen.