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Chapter 6 - Labour Law

Taking industrial action

Industrial action is used where employees want new or better conditions at the workplace and wish to use strike action in a ‘dispute of interest’ which involves creating new terms and conditions of their employment.. Stayaways, strikes, work stoppages, go-slows, work-to-rule, and union bans on overtime, and lock-outs, are all forms of industrial action. Industrial action can be protected (legal) or unprotected.

Protected industrial action complies with the rules and procedures set out in the Labour Relations Act (LRA). If the industrial action complies with the law, then employees may not be dismissed by their employer for taking such action.

Unprotected industrial action does not comply with the rules and procedures set out in the LRA. The courts are not sympathetic towards employees who go on an unprotected strike. If an employer dismisses employees who go on an unprotected strike, it is not likely that the court will help these employees.

When is industrial action not permitted?

Industrial action is not permitted when:

• The employers and employees have entered into a collective agreement which prohibits strikes or lock-outs around the issue being disputed.
  
• The employers and employees have entered into an agreement which regulates the issue being disputed.
  
• The law or the collective agreement says that the issue being disputed should be resolved through arbitration or the Labour Court. For example, the LRA says that unfair dismissals and unfair labour practices must be referred to arbitration or the Labour Court. Employees cannot strike over unfair dismissal or unfair labour practices. Strikes over retrenchments are legal if the correct consultation processes have been followed.
  
• There has already been arbitration about the issue, and an arbitration decision was made which regulates the issue.
  
• Employees are employed in an essential service or a maintenance service. An essential service is where the life, safety or health of another person will be endangered if work is interrupted to go on strike. A maintenance service is where machinery or the factory will be damaged if work is interrupted. In these cases, disputes must go to arbitration. Parliament and the South African Police Services are classified as essential services in the LRA. There is an Essential Services Commission which decides which other employees provide an essential or maintenance service, and so may not go on strike. Although employees in essential services may not go on strike, the LRA provides other ways for them to resolve disputes. In most cases, where the parties are unable to reach an agreement around their dispute, either party may refer the dispute to compulsory arbitration by the Commission for Conciliation, Mediation and Arbitration or the relevant Bargaining Council.

In all other cases, employees have the right to strike, and every employer has the right to lock-out, provided they follow the correct procedures first. This includes the right to strike over wages and conditions of employment, and to strike in solidarity with other legally striking employees.

What procedures must be followed before industrial action is protected?

• If employees are planning to strike in solidarity with employees who are legally striking (a secondary strike), the employees must give their employer 7 days' notice in writing.
  
• If the employees are not part of a collective agreement with an alternate dispute resolution procedure, the dispute must be referred to the CCMA or the relevant Bargaining Council after the opposing party has received a copy of the Referral of Dispute Form (LRA 7.11).

In order for other strikes or lock-outs about disputes to be protected, workers or the employer must follow these steps:

• If the employees are part of a collective agreement which has a dispute resolution procedure, then that procedure must be followed.
  
• Otherwise the dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant Bargaining Council. The CCMA or Bargaining Council must try to settle the dispute within 30 days of receiving the dispute. If conciliation is successful, it means both parties are satisfied and no industrial action will be taken.
  
• If conciliation within 30 days is unsuccessful, the parties must wait until the CCMA or Bargaining Council sends or provides them a certificate which states that the dispute has not been resolved. Only then can either party take industrial action.
  
• In the case of a proposed strike, the employees must give the employer at least 48 hours' written notice that they intend to take industrial action. If the employer is the state, the employees must give at least 7 days' notice. This notice must be specific about the time of the strike and what form the strike will take.
  
• In the case of a proposed lock-out, the employer must give the employees at least 48 hours written notice that it intends to lock the employees out.

If the employer locks employees out without following the procedures, the employees can immediately go on strike without following the procedures. If employees go on strike without following the procedures, the employer does not have to follow procedures to lock them out.

Where the employer illegally locks out the employees, a claim must be made against the employer because of this illegal lockout.

If an employer unilaterally changes conditions of employment

If an employer makes changes to employees' conditions of employment without negotiating with employees, employees can refer a dispute to the CCMA or Bargaining Council. They can then give the employer 48 hours notice to restore the status quo (to take things back to what they were) failing which they can go on strike.

When referring the dispute to the CCMA or Bargaining Council and giving notice to the employer, employees can demand:

• that the employer not implement the changes, if the employer still plans to change their conditions

or

• that the employer restore their original conditions of employment, if the employer has already changed their conditions

The employees can demand that the changes must be delayed:

• until conciliation has taken place

or

• if no conciliation takes place, until 30 days have passed since the referral was received by the CCMA or Council

The employer must comply with the demand within 48 hours from the time it receives the notice failing which the strike can begin and the employees will be protected.

Employees' and employer's rights in protected industrial action

• Protected industrial action cannot be stopped by a court order. But an employer can ask the Labour Court to stop a solidarity or ‘secondary’ strike if it is unrelated to the ‘primary’ (first) industrial action.
  
• The employer may not discipline, victimise, intimidate or dismiss employees who take protected industrial action or who are being locked out, nor those who refuse to do the work of another employee who is on a protected strike.
  
• The employer can dismiss or take disciplinary action against employees for misconduct while taking industrial action, for example for violence or if they vandalise the employer's property.
  
• The employer cannot claim damages for lost production during the protected industrial action. (The employer can claim damages if the industrial action is unprotected!)
  
• The employer does not have to pay employees while they are on strike or legally being locked out. But employees who receive payment in kind (things like housing, electricity, water or food instead of money) can ask the employer to give them this part of their pay, and the employer cannot refuse. When the strike or lock-out is over, the employer can claim the value of the payment in kind made during the strike or lock-out back from the employees. This must be done through the Labour Court. The money cannot be deducted from the employees' pay without a court order or the employees' permission.
  
• An employer is entitled to recruit temporary (scab) labour while employees are on strike or when the employees are locked out by the employer where the lock out was introduced, only after  the employees had gone  on strike. If the employer locks out employees who have already started a strike, then the employer can use strike breakers to replace the strikers for the period of the strike.
• In exceptional circumstances the employer can retrench employees on strike. The employer must follow the procedures for retrenchment. If the employer then employs other employees in place of the retrenched employees, the employees can take the dispute to the Labour Court where the lockout is in response to a strike. If the employer lockout first, then he/she cannot employ temporary replacement labour.

Trade unions

Employees can organise themselves into employee organisations called trade unions. A trade union is controlled, run and paid for by its members. Organised employees in factories elect shop stewards and committees to represent them and report back to them in the workplace. The shop stewards and employees discuss the problems in the workplace and the shop stewards take the employees' problems to the management.

What are the aims of trade unions?

• To negotiate with employers for proper working conditions
  • for decent wages and conditions of work
  • for recognition by the employer of the unions and shopstewards in the workplace
• To protect employees
  • from unfair dismissal and unfair labour practices
  • from discrimination and abuse.
• To educate employees
  • on their rights and how to enforce these rights
  • on how to carry out their tasks in the trade union.
• To represent employees
  • to the employers and other authorities
  • to get benefits
• To take legal action when necessary.

Paying for the union - the subscription

When an employee joins a union, he or she will be asked to pay the subscription fee every month to become a member. These fees are also called 'subs'. The union uses the ‘subs’ pay for its expenses such as salaries for union staff, office rental, transport for union staff, etc.

The right of employees to form, join and take part in trade unions

The Constitution and the Labour Relations Act say that employees have the right to form and join trade unions. This right is called freedom of association. Employers are not allowed to make it a condition of employment that an employee must or must not belong to a trade union. It is the employee's choice. An employee also cannot be victimised because he or she is a member of a trade union. This means the employer cannot treat the employee unfairly or badly because the employee is a trade union member.

Trade union rights in the workplace

A registered union, that has less than 50% membership of the workforce but which is sufficiently representative (around 30% of membership of the workforce as members) can apply for these rights:

• Access to the workplace for union office bearers and officials to hold meetings, etc
  
• To ballot its members
  
• To provide stop-order facilities for the deduction of ‘subs’ or trade union subscriptions
  

This percentage of membership is regarded as being ‘sufficiently representative’.

A registered union that has a majority (more than 50%) of the employees as members at a workplace, can apply for the above rights as well as the following:

• election of shop stewards / employee representatives
  
• disclosure of information / the employer must give the union any information that is relevant for meetings and negotiations
• time off for a representative to undertake trade union duties or have training

The union applies to the employer for these rights. Within 30 days the employer must meet the union. They make a collective agreement about these rights. The union can ask the CCMA to intervene if the employer refuses. The CCMA will try to mediate and if that fails, will arbitrate.

Unions that belong to Bargaining Councils or Statutory Councils automatically have these rights, even if they don't have many members at a workplace.