Understanding Labour Law in South Africa Regarding Industrial Action
It is imperative to seek legal advice from experienced labour law attorneys for a better understanding of labour law in South Africa. If you are an employer, you can easily find yourself on the wrong side of the law in dealing with strikes. Understanding the rights of employees to partake in industrial action to address working conditions and disputes is imperative to ensure that you follow the correct procedures in dealing with such and the employees participating or supporting legal industrial action in compliances with the procedures as set out by the Labour Relations Action.
Note that unprotected industrial action is where the strike or industrial action doesn’t comply with the requirements of the law and, in such an instance, you as employer have the right to take legal action or to dismiss employees.
An industrial action is not protected if the employer and employees have a collective agreement that makes strikes and lockouts illegal regarding the specific dispute and when the parties have an agreement, which governs the specific issue that is in dispute. It is also not protected if there is a collective agreement that stipulates that the particular issue must be decided by the Court or through an arbitration process.
Note that the Labour Relations Act stipulates that issues about unfair dismissals cannot be resolved through strikes and must be dealt with by the Labour Court or through a process of arbitration. However, retrenchment related strikes are permissible, provided that the correct procedures are followed. Industrial action is furthermore unprotected if the issue has already been referred for arbitration and a decision has already been made about the issue through the arbitration process.
Industrial action in the form of a strike is also not protected if the employees are employed in a critically important or indispensable maintenance service where the life, health and safety of the public, a member of the public or other employees are endangered if the maintenance or service is interrupted at any stage.
Employees otherwise have the right to take legal action over employment conditions, salaries and wages and in support of other employees participating in protected industrial action.
There are specific procedures that must be adhered to if the employees want protection for the industrial action, including giving notice of the intent to strike. This must be done before the commencement of the industrial action and must be done in writing.
The employees must refer the dispute to a Bargaining Council where relevant or to the CCMA if they don’t form part of a particular collective agreement that includes a dispute resolution method. This must be done after notification to the opposing party and the inclusion of the LRA 7.11 form.
The parties involved in other forms of industrial action, in order to ensure protection of the industrial action must follow the dispute resolution procedures of the relevant collective agreement or refer the dispute to the CCMA or a respective Bargaining Council.
If the conciliation is not successful the participating parties must wait for the certificate that indicates the unsuccessful attempt to resolve the dispute before they are able to engage in industrial action. The employees must then provide 48 hours’ notice of their intent to strike in writing, but in the case of a public employer, such as the State, it is essential to give seven days’ notice of the intent to take industrial action. The employer must give the employees 48 hours’ notice if the employer intends to engage in a lockout of the employees.
The procedures for protected industrial action should be followed to the letter. For more information and a better understanding of labour law in South Africa contact Allardyce & Partners Attorneys at reception@www.allardyce.co.za or on 011 234 2125.
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.
