Labour Law Consultants South Africa – On the Issues of Strikes and Lockouts
Allardyce & Partners is a law firm that offers some of the top labour law consultants South Africa has to offer. Our services include litigation, CCMA representation, and presentation at bargaining councils, employer and employee representations, Labour Court appeals and related litigation. We furthermore provide an extensive range of HR and labour consultant services at affordable prices. Our labour law consultants in South Africa are qualified attorneys assisted by candidate attorneys and paralegals. With a large team of experts in the field of labour law, we are able to assist with individual cases and complex cases such as strikes and lockouts equally and effectively.
We have briefly provided an introduction to the legal aspects surrounding strikes and lockouts below for informational purposes only. For more comprehensive information and expert legal guidance, contact our labour law consultants providing services throughout South Africa.
Right to Strike and the Employer’s Right to Lockout
Employees have the right to take action such as striking or picketing, while employers have the same right to lockout the employees if the two parties are unable to come to an agreement. However, specific limitations apply in both instances.
Lockouts are legal where the labour dispute has been referred to the CCMA, or if a relevant council and 30 days have since then passed while there is also a certificate to indicate that the dispute has not been resolved. Strikers must give a notice in writing to the relevant employer of their intention to strike and this must be done 48 hours before the strike. The employees can as alternative give the written notice about the intention to strike to a council or to an employer organisation. The notice can only be given to the council if it is a dispute directly related to an agreement that the council must conclude. The employees can give the notice to the employer organisation if the organisation is a party to the specific dispute and the relevant employer is a member of the said organisation.
The employer must in the same way provide written notice at least 48 hours before the employer can legally implement a lock-out against the employees. This must be submitted to the employees if they do not belong to a trade union. If they do belong to a trade union the employer must submit the notice in writing to the relevant trade union or to a council if the council is to reside over the dispute which relates directly to a collective agreement.
The employer may not dismiss or initialise civil legal action against the employees if they are legally striking. The employer does not have any obligation to pay the employees during the legal strike, excluding when the employees ask that payment for certain benefits continue, such as basic amenities, accommodation and food. Though the employer cannot dismiss the workers for legal striking, the employer can during this period fairly dismiss any employee for operational requirements or because of misconduct by the employee.
During the legal lockout, there cannot be civil legal proceedings initialised against the employer. The employer, can, however, seek monetary value compensation of payment in kind by means of initialising civil proceedings in the Labour Court. But, such civil proceedings may only be initialised after the legal lockout is over.
Should one of the parties be unwilling to negotiate, the law stipulates that it is then necessary to first get an advisory note before the commencement of the legal strike – although the note cannot be used to force bargaining by any of the parties involved.
There are instances when the normal lockout and strike procedures are not relevant, such as when the employees strike to protest an illegal lockout or the employer locking the striking employees out because they are striking illegally. Such procedures also do not apply if the employer changes the working conditions of employees without their participation and does not want to restore the old working conditions.
The above information serves to highlight the importance of getting legal assistance and guidance from experienced labour law consultants in South Africa when dealing with lockouts and strikes. Contact us at Allardyce & Partners for more information and legal assistance to ensure that you follow correct procedures when faced with labour disputes.
*NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.