Protected vs Unprotected Strikes

 

Introduction

 

Strike action remains one of the most powerful tools available to employees in asserting their collective rights. However, not all strikes are legally protected, and employers often find themselves uncertain about their rights and obligations in the face of industrial action.

Understanding the distinction between protected and unprotected strikes under South African labour law is essential for employers to navigate such situations effectively, minimise risk, and maintain operational stability.

 

The Legal Framework 

 

The right to strike is entrenched in Section 23 of the Constitution of the Republic of South Africa, 1996 and regulated by the Labour Relations Act 66 of 1995 (LRA).

What is a Protected Strike?

A protected strike complies with the procedural and substantive requirements set out in the LRA. When a strike is protected:

• Employees are shielded from dismissal solely for participating in the strike.
• The employer may not pursue legal claims for damages caused by the strike.
• Employees retain their employment status, although the principle of “no work, no pay” applies.

What is an Unprotected Strike?

An unprotected strike occurs when the action fails to meet the legal requirements of the LRA. Participation in such a strike exposes employees to:

• Disciplinary action, including dismissal (subject to fair procedure and consideration of mitigating factors).
• Potential liability for damages if the employer suffers financial harm.
• An interdict or court order restraining further participation in the strike.

 

Procedural Requirements for Protected Strikes

 

To ensure a strike is protected, the following steps must be followed:

Issue in Dispute

• The dispute must relate to a matter of mutual interest between employer and employees.

Referral to the CCMA or Bargaining Council

• The dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a relevant Bargaining Council for conciliation.

Certificate of Outcome

• If conciliation fails, a certificate of non-resolution must be issued.

Notice of Strike

• Employees must provide the employer with at least 48 hours’ written notice of their intention to strike (or 7 days if the employer is the state).

Failure to comply with any of these requirements renders the strike unprotected.

Employer Rights in the Face of Protected Strikes

 

While protected strikes are legal, employers are not entirely powerless. Employers may:

Apply the “No Work, No Pay Principle:

• Employees are not entitled to remuneration for the period they are on strike, even if the strike is protected.

Hire Temporary Replacement Labour:

• During a protected strike, employers may employ temporary replacement workers unless the strike is in response to a lockout.

Implement Operational Measures:

• Employers can take reasonable steps to safeguard property, maintain safety, and continue operations within the bounds of the law.

 

Employer Rights in Unprotected Strikes

 

Apply for an Urgent Interdict:

• To restrain employees from continuing the unlawful strike.

Discipline Employees:

• Disciplinary action, including dismissal, may be taken. However, the Code of Good Practice: Dismissal (Schedule 8 to the LRA) requires that employers consider:

1. The seriousness of the contravention.
2. Attempts by the employer to resolve the matter.
3. Whether the strike was in response to unjustified conduct by the employer.

Claim Damages:

Employers can institute civil claims for damages suffered as a result of the unprotected strike.

 

Practical Guidance for Employers

Develop Clear Strike Protocols:

Ensure that your workplace policies and disciplinary codes clearly address strike procedures and consequences

Engage Proactively with Employee Representatives:

Maintaining open communication channels with unions or employee forums can help address grievances promptly and prevent them from escalating.

Document All Communications and Events:

Accurate records are essential should legal action or disciplinary steps become necessary.

Consult Legal Counsel Early:

Professional advice can help distinguish between protected and unprotected actions and guide the appropriate response.

Balance Firmness with Fairness:

Even during unprotected strikes, employers must act within the bounds of procedural fairness and labour law requirements to avoid costly legal challenges

Conclusion

 

Managing industrial action requires a careful balance between protecting business operations and respecting employees’ constitutional rights. By understanding the distinction between protected and unprotected strikes, and following a structured, lawful approach, employers can navigate strike action with greater confidence and reduce exposure to legal risks.

For further assistance, consult an attorney at SchoemanLaw.