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Strike action: Do’s and don’ts

Labour disputes and strikes will likely see an upward trend as the country emerges from lockdown. This means that employers will more often be faced with industrial action, and it’s very important to note when action is protected, unprotected, and how to handle industrial action properly.

1. All wildcat strikes and protests are unprotected by the law:

Legal strike action, in terms of section 64 and 65 of the Labour Relations Act, are the result of not only failed negotiations, but also failed conciliation proceedings at the CCMA. Pursuant to those failed negotiations, a certificate of non-resolution is issued, and a strike can commence once the employer is given 48 hours’ notice. Spontaneous protests or work stoppages are not protected strikes, and employees can face dismissal for engaging in such action. Furthermore, organisations who promote such action, are liable for any damage caused. The Labour Court must be approached to interdict striking workers.

2. Collective agreements have a very specific definition:

Collective agreements are reached between employers, or the organisations representing them in terms of section 95 of the Labour Relations Act, and employees or the organisations representing them in terms of section 95 of the Labour Relations Act. This does not include a loose grouping of employers, or a community organisation. Agreements reached on that basis, are not legally binding, collective agreements in terms of the Labour Relations Act.

3. The maintenance of law and order is not negotiable:

If spontaneous work stoppages or wildcat strikes are experienced, it is imperative that employers act immediately, both by obtaining legal advice and by contacting the relevant police structures in the area. Do not ignore these actions or try and resolve them in isolation. It is also important to contact the CCMA, which has a statutory obligation to intervene in labour disputes, if asked to do so by the parties.

It is very important to note the difference between a valid collective bargaining process, and unprotected protests and strikes, because a failure to recognise these differences can lead to a very detrimental situation for employee relations. Make sure to take appropriate steps in these cases, so that conflict can be managed before it spreads.

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