Legal Articles

The employer-employee relationship is one where the bargaining power between the parties is not grounded on equal footing. This is because of the competing interests between the two sides and to some extent, the economic bargaining power. When an unskilled or semi-skilled employee negotiates, he/she does so from a position awake to the fact that should no consensus be reached, there is a ready market of job seekers who can offer their services on the very same terms. This often results in grievances, and sometimes strikes. Can employees engage in strikes willy-nilly?

Is the right to strike Constitutionally protected?

The Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) provides in Section 23 (2) (c) that everyone has the right to fair labour practices, and to strike. Labour legislation that provides for the right to strike find their essence from the Constitution as it is the supreme law of the land.

What is a protected strike?

A protected strike is one which complies with the procedures laid down in the law, particularly section 64 of the Labour Relations Act 66 of 1995 (LRA).

What is an unprotected strike?

An unprotected strike is one which is not compliant with the procedures as laid down in the LRA, or has been interdicted against by a Court order but goes ahead regardless.  

What is a secondary strike?

A secondary strike is one which is, as per section 66 (1), a strike or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.

Is there any limitation on who may strike?

The below categories may not engage in a strike nor in any conduct in furtherance of a strike;

• that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;
• that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;
• the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of the LRA;
• that person is engaged in an essential service.

Are employees entitled to remuneration during the time they participate in a strike?

An employer is not obliged to remunerate an employee for services not rendered during the time they are participating in a strike (even protected) but where remuneration includes payment in kind e.g accommodation, food, the employer must not discontinue such payment in the event that the employee has requested so. Such payment may be recovered by the employer through civil proceedings.

At Van Deventer and Van Deventer Incorporated we assist employees and employers alike with regard to compliance during industrial and strike actions, as well as in general labour litigation. We also assist in civil and general litigation, criminal litigation, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in personal injury, company law and deceased estates amidst an array of others.

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