Protected v Unprotected Strikes: What should the Employer do?
With continual stagnated economic growth and rising costs of living facing South Africans, it is not surprising that more and more often, rising discontent within the workforce is leading to protest action, which can further exacerbate the financial woes of a business. What is important for employers to note is that whilst employees are Constitutionally entitled to protest through strike action, in order to safeguard their dignity and livelihoods however, this right is not absolute.
In this regard, it is important to differentiate between protected and unprotected strikes, as striking employees could either be indemnified from or condemned to facing disciplinary action depending on how the strike is classified. To be protected, a strike would need to comply with the LRA both substantively and procedurally.
The procedural aspects protecting a strike entails 3 steps. Firstly, the grievance experienced must have been heard by a conciliatory body. Secondly, a certificate must have been issued by the relevant conciliatory body to show that the matter remains unresolved or alternatively, 30 days must have lapsed from the date on which the conciliatory body received the referral. Lastly, the striking party needs to give at least 48-hour’s notice of the strike to their employer. If the employer is the State, the striking party would need to give at least 7 days’ notice.
The substantive requirements often act as a barrier to the protection of strikes. To this end, parties are not permitted to strike if:
there is a collective agreement which prohibits striking over an issue which may be in dispute;
there is an agreement requiring disputes to be arbitrated;
the aggrieved party is a part of an essential or maintenance service; or
the aggrieved party has the right to refer the matter to the Labour Court or Arbitration.
If the aggrieved party does not contravene the procedural or substantive requirements of the LRA, they are entitled to a protected strike.
A protected strike allows protection to the strikers from any claim for breach of contract or compensation by the employer and prevents strikers from being dismissed or discriminated against due to their participation in the strike. Despite this, the immunities afforded to protected strikes are limited. Strikers are not above the law and may be held both criminally and civilly liable for damages and loss which occurs due to the strike action.
An unprotected strike is one that does not conform with either the substantive or procedural requirements needed to have a strike protected, and this leads to the striking party being susceptible to disciplinary action.
As an employer, it is important to understand the rights of employees, whilst also ensuring that the checks and balances of strike action are complied with, in order to reasonably prepare and accommodate for any disruptions which may occur. Although dialogue with Trade Unions may cause tension, understanding the next steps in an escalating matter may help the business handle the consequences more efficiently.
Written by Greg Barnett
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This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjwattorneys.co.za directly for advice applicable to your specific matter.