Categories

Strikes

Employee Relations - Strikes

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Blueprint Summary

Introduction

The right to withhold labour or to strike is seen as the most important weapon that employees have in the power play between employer and employee. The employer’s leverage is mainly drawn from his usually strong financial position or his ability to withhold or determine payment.

The right to strike is constitutionally entrenched and is generally seen as an important part of the collective bargaining process. The LRA gives statutory protection to this right as entrenched in the Constitution, but limits the exercise thereof in certain circumstances.

A strike is defined in the LRA as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purposes 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 handling strikes it is imperative that you have a sound understanding of the legislative principles pertaining to strikes and the various types of disputes that may occur. The type of dispute will determine the process that the referring party must adopt in order to resolve the matter. It further determines whether or not the employees can strike over their dispute.

Types of Disputes

Employees are precluded by law from striking over disputes of right. These are disputes that can be resolved through arbitration or adjudication. There are however 3 exceptions to this exclusion, as listed below. As such, employees may only strike in order to resolve grievances with their employers or over matters of mutual interest.

The 3 exclusions as mentioned above are:

  1. Section 189A retrenchment
  2. Collective Bargaining
  3. Unilateral change to terms and conditions of employment

Dispute of Interest

A dispute of interest is about anything that employees are not legally entitled to, but would like to have or change (i.e. wage increases, more leave days), which affects both themselves and the employer.

 

Unprotected Strikes

If the “work stoppage” does not meet all the elements of the definition of a strike, then it would be seen as an unprotected strike. One or more employees refusing to work does not necessarily constitute a strike, it may simply be a work stoppage.

The employer should comply with the following broad guidelines:

  1. Employees refuse to work, retardation or obstruction of work.
  2. Is there a demand – ask them why they are not working?
  3. Did they comply with the procedures of LRA?
  4. Find out if there is a trade union and shop stewards
  5. Give them an instruction to work
  6. Explain to them that if they do not follow the instruction, it could lead to a disciplinary hearing and their dismissal
  7. If they ignore the verbal instruction, draw up an ultimatum bearing in mind the following:
  • The language used must be clear and unambiguous
  • Stipulate “UNPROTECTED STRIKE”
  • Inform them that they did not follow necessary procedures
  • Instruct to return to work with a TIME given
  • Let them know you will not discuss the dispute while they are striking, but you will discuss when they return to work
  • Notify them that if they ignore your ultimatum, this could lead to a disciplinary which could lead to dismissal.
  1. Phone the trade union and ask them to intervene (take notes)
  2. Give them sufficient time to reflect on your ultimatum
  3. Give 3 ultimatums (rough guideline) as follows:
  • 08h00 – verbally instruct to work, find out why not working etc.
  • 08h30 – 1st
  • 10h00 – 2nd
  • 13h00 – Final ultimatum till following morning, start next shift.
  1. Serve notice to attend a disciplinary hearing with reasonable time to prepare
  2. Notify the union of the hearing
  3. Schedule the hearing and conduct the hearing

SCHEDULE 8 (6) guidelines

Participating in an unprotected strike constitutes misconduct;

The employer must:

  1. contact the trade union;
  2. issue a clear and unambiguous ultimatum;
  3. employees must be allowed time to reflect on the ultimatum;

Chairperson’s guidelines on the appropriateness of dismissal:

  1. the seriousness of the contravention;
  2. attempts made to comply with the act;
  3. whether or not the strike was in response to provocation from the employers

Protected Strikes

To be deemed a protected strike, Section 64 of the Labour Relations Act must be complied with. An employer may only dismiss employees that are on a protected strike based on their conduct during the strike or the company’s operational requirements.

  1. The dispute must be referred to the CCMA or the relevant Bargaining Council
  2. Certificate of non-resolution must be issued or 30 DAYS must have lapsed since the dispute has been referred
  3. Employees/ Union that intends to strike must notify the employer of their intention to strike, at least 48 hours prior to the strike, by a written notice stipulating the date and time of the intended strike

Tips / FAQ

Replacement Labour (Scab Labour)

The use and prohibition on the use of replacement labour in effect balances the parties’ power. Whenever a lock-out is defensive, the employer is allowed to employ replacement labour. If it is an offensive lockout-out, no replacement labour may be employed.

Lock-Outs

Lock-outs are the employer’s way of gaining power over employees participating in protected strikes. Employees that are locked-out are not allowed to return to work unless they sign an agreement or accept the employer’s terms and conditions.

There are two different kinds of lock-outs:

  • Defensive Lock-Out
    Employees initiate a strike. The employer has the option to revert to a defensive lock out, and can use replacement Labour. The employer must inform the employees in writing that they are formally locked-out. No other formal procedures are required.
  • Offensive Lock-Out
    An employer may use the collective bargaining process to enforce its own demands. In such a case where the lock-out is initiated by the employer, it is an offensive lock-out and replacement labour may not be employed. To initiate an offensive lock-out, the employer must comply with the same procedures as required for a protected strike (referral to CCMA or Bargaining Council, certificate of non-resolution and 48 hours’ notice).
  • The more skilled the employees are, the more difficult it is to replace them and hence the stronger their bargaining position, because should they strike, the employer will find it difficult to replace them and as such the employer will be prejudiced.
  • The less skilled the employees, the easier to replace them and hence the weaker their bargaining position.

Process flow

Process Specification

Process Owner

Stakeholder(s)

Recording Requirements

Reporting Requirements

The person that is accountable for this specific process.

All parties that have a vested interest in this process.

Requirements that need to be recorded during this process. What, How, Where.

Requirements that need to be stored during this process. What, How, When, Where.

Storage Requirements

Audit Requirements

Notifications

Reminders

Requirements that need to be reported on during this process. What, How, When, Where.

Requirements that need to be met in to comply with Auditing Regulations.  What, How, When, Where & Type of Audit Requirement.

Any Notifications that need to be Generated and/ or Actioned During this Process.

Any Reminders that need to be Generated and/ or Actioned During this Process.

Transparency & Communication

Knowledge & Skills

Workflows

System

 Any Transparency, Communication & Distribution Requirements needed for this Process.

 Any Knowledge & Skills required to successfully complete this process.

Are there any Workflows that drive this Process? This can be Manual or NFE Workflows.

Links and Process within a system that directly relates to this Process.

Legislation & Governance

TEMPLATES, FORMS, GUIDES AND WORK INSTRUCTIONS

S.A. Board for People Practices

Any Legislation, Bodies, Processes, Policies that Govern this Process.

Links to Templates, Forms, Guides & Work Instructions that are either to be used for application or as Guidelines to meet minimum requirements for this Process

Does this Process Align with SABPP. This can either be Fully, Partially or Not at All.

The Process

Inputs are all of the Elements deemed necessary to complete the process successfully.

  • Notification of Intention to Strike

Tasks are the Step-by-Step Actions to be taken to complete the Process.

  • Strike Ultimatums
  • Resolving of Strikes

Tasks are the Step-by-Step Actions to be taken to complete the Process.

 

Introduction

The right to withhold labour or to strike is seen as the most important weapon that employees have in the power play between employer and employee. The employer’s leverage is mainly drawn from his usually strong financial position or his ability to withhold or determine payment.

The right to strike is constitutionally entrenched and is generally seen as an important part of the collective bargaining process. The LRA gives statutory protection to this right as entrenched in the Constitution, but limits the exercise thereof in certain circumstances.

A strike is defined in the LRA as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purposes 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 handling strikes it is imperative that you have a sound understanding of the legislative principles pertaining to strikes and the various types of disputes that may occur. The type of dispute will determine the process that the referring party must adopt in order to resolve the matter. It further determines whether or not the employees can strike over their dispute.

Types of Disputes

Employees are precluded by law from striking over disputes of right. These are disputes that can be resolved through arbitration or adjudication. There are however 3 exceptions to this exclusion, as listed below. As such, employees may only strike in order to resolve grievances with their employers or over matters of mutual interest.

The 3 exclusions as mentioned above are:

  1. Section 189A retrenchment
  2. Collective Bargaining
  3. Unilateral change to terms and conditions of employment

Dispute of Interest

A dispute of interest is about anything that employees are not legally entitled to, but would like to have or change (i.e. wage increases, more leave days), which affects both themselves and the employer.

Unprotected Strikes

If the “work stoppage” does not meet all the elements of the definition of a strike, then it would be seen as an unprotected strike. One or more employees refusing to work does not necessarily constitute a strike, it may simply be a work stoppage.

The employer should comply with the following broad guidelines:

  1. Employees refuse to work, retardation or obstruction of work.
  2. Is there a demand – ask them why they are not working?
  3. Did they comply with the procedures of LRA?
  4. Find out if there is a trade union and shop stewards
  5. Give them an instruction to work
  6. Explain to them that if they do not follow the instruction, it could lead to a disciplinary hearing and their dismissal
  7. If they ignore the verbal instruction, draw up an ultimatum bearing in mind the following:
  • The language used must be clear and unambiguous
  • Stipulate “UNPROTECTED STRIKE”
  • Inform them that they did not follow necessary procedures
  • Instruct to return to work with a TIME given
  • Let them know you will not discuss the dispute while they are striking, but you will discuss when they return to work
  • Notify them that if they ignore your ultimatum, this could lead to a disciplinary which could lead to dismissal
  1. Phone the trade union and ask them to intervene (take notes)
  2. Give them sufficient time to reflect on your ultimatum
  3. Give 3 ultimatums (rough guideline) as follows:
  • 08h00 – verbally instruct to work, find out why not working etc.
  • 08h30 – 1st
  • 10h00 – 2nd
  • 13h00 – Final ultimatum till following morning, start next shift.
  1. Serve notice to attend a disciplinary hearing with reasonable time to prepare
  2. Notify the union of the hearing
  3. Schedule the hearing and conduct the hearing

SCHEDULE 8 (6) guidelines

Participating in an unprotected strike constitutes misconduct

The employer must:

  1. contact the trade union;
  2. issue a clear and unambiguous ultimatum;
  3. employees must be allowed time to reflect on the ultimatum;

Chairperson’s guidelines on the appropriateness of dismissal:

  1. the seriousness of the contravention;
  2. attempts made to comply with the act;
  3. whether or not the strike was in response to provocation from the employers

Protected Strikes

To be deemed a protected strike, section 64 of the Labour Relations Act must be complied with. An employer may only dismiss employees that are on a protected strike based on their conduct during the strike or the company’s operational requirements.

  1. The dispute must be referred to the CCMA or the relevant Bargaining Council
  2. Certificate of non-resolution must be issued or 30 DAYS must have lapsed since the dispute has been referred
  3. Employees/ Union that intends to strike must notify the employer of their intention to strike, at least 48 hours prior to the strike, by a written notice stipulating the date and time of the intended strike

Tips / FAQ

  • Written Notice of Intention to Strike must be served on the employer 48 hours prior to the strike. It must stipulate where and when the strike will take place so that the employer can prepare, as well as the employees’ demand so that the employer can decide whether or not to accede to it. If employees do not start the strike at specified date & time, they then should serve a fresh notice with new dates and times.
  • If employees want to return to work, do NOT let them come back unless they have signed an agreement.
  • If the employees return to work without signing an agreement, they may then resume the strike again without referring the dispute again and without issuing a fresh notice.
  • Mandates and Deadlocks – Be sure of your final bottom line mandate prior to commencing the wage negotiations. If you declare that x is your final position, never change it as this will undermine your integrity and make the following wage negotiations difficult. The union will always believe that you have something more than your final position in reserve.
  • If some employees want to abandon the strike- If the union has not capitulated but some or all of the employees want to return to work, they must sign the wage agreement in their individual capacities.
  • Bonuses for non-striking employees. See clause 5(3) of the LRA which states that no person may advantage or promise to advantage any employee, for that person not exercising any right conferred by the Act. Therefore you cannot promise individuals to pay them bonuses if they do not strike.

Scab Labour (Replacement Labour)

The use and prohibition on the use of replacement labour in effect balances the parties’ power. Whenever a lock-out is defensive, the employer is allowed to employ replacement labour. If it is an offensive lockout-out, no replacement labour may be employed.

Lock-Outs

Lock-outs are the employer’s way of gaining power over employees participating in protected strikes. Employees that are locked-out are not allowed to return to work unless they sign an agreement or accept the employer’s terms and conditions.

There are two different kinds of lock-outs:

  • Defensive Lock-Out
    Employees initiate a strike. The employer has the option to revert to a defensive lock out, and can use replacement Labour. The employer must inform the employees in writing that they are formally locked-out. No other formal procedures are required.

  • Offensive Lock-Out
    An employer may use the collective bargaining process to enforce its own demands. In such a case where the lock-out is initiated by the employer, it is an offensive lock-out and replacement labour may not be employed. To initiate an offensive lock-out, the employer must comply with the same procedures as required for a protected strike (referral to CCMA or Bargaining Council, certificate of non-resolution and 48 hours’ notice).

  • The more skilled the employees are, the more difficult it is to replace them and hence the stronger their bargaining position, because should they strike, the employer will find it difficult to replace them and as such the employer will be prejudiced.

  • The less skilled the employees, the easier to replace them and hence the weaker their bargaining position.

END OF PROCESS