Employers should know when the actions of employees constitutes a strike, which is defined in the Labour Relations Act No 66 of 1995 (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 purpose 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 compulsory or voluntary.
If the employer can determine that the actions of the employees constitute a strike the next step is to ensure whether the strike is protected or unprotected. For a strike to be protected the issue in dispute must be referred to the CCMA or bargaining council.
Before a strike notice is issued, 30 days must lapse from when the dispute was received by the CCMA or Bargaining Council or a certificate must be issued stating that the dispute remains unresolved.
Finally, a written notice stipulating the commencement of the strike must be issued to the employer at least 48 hours before the strike commences.
If it is determined by now that the strike is protected the employer can make use of a mechanism called a “Lockout”. When employers make use of the lockout procedure they are allowed to make use of replacement labour, which is permissible, when the lockout is in response to a strike.
ABOUT THE AUTHOR
Ruan Vlok obtained his LLB degree from the University of the Free State and was admitted as an Attorney of the High Court of South Africa in April 2015. He is currently a legal advisor of SEESA Labour and BEE in Bloemfontein and has been with SEESA for approximately 1 year.