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Strikes and Lock-Outs

What is a strike?

  • To strike is the refusal to work, the slowing down of work or the obstruction of work by employees (“strikers”).
  • A strike takes place to resolve a dispute between the employees and their employer. The dispute must be about something in the employer’s control for example, wages, improved working conditions and other disputes of mutual interest.
  • While employees have the right to strike, an employer has an option to lock-out. However, these rights can sometimes be limited for example, if the employees are bound by a collective agreement or are involved with essential services.

What is a lock-out?

  • A lock-out is the refusal of the employer to grant the employees access to the workplace. This means that the employees are not able to tender their services and as a result will not be paid.
  • A lock-out takes place in response to a strike or to force the employees to accept a demand of the employer. The demand must relate to disputes of mutual interest. The demand of the employer can be for example, to force the employees to accept changes to their terms and conditions of employment.

When can employees strike and an employer lock-out?

  • When the employees and employer fail to resolve a dispute in the workplace, they have to follow a lawful procedure before they can strike or lock-out.
  • A strike or lock-out is considered protected if lawful procedure was followed:

Failure to resolve a dispute in the workplace
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Step 1: Conciliation - the dispute must be referred to the Council for Conciliation, Mediation and Arbitration (“CCMA”) or Bargaining Council for resolution

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Step 2: Certificate of outcome -  if the dispute remains unresolved
or a 30 day period has expired since it has been referred to the CCMA a certificate of outcome must be obtained
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 Step 3: Notice of Commencement – at least 48 hours prior to the strike or lock-out a written notice of the commencement must be given


What are the consequences of a protected strike?

  • Employees may not be dismissed for participating in a protected strike.
  • Employees may be dismissed for causing damage to the property of their employer, or another person at the workplace, during the strike.
  • Employees may be retrenched for operational reasons as a result of the strike.
  • Employees may be arrested and prosecuted for committing a criminal offence during a strike.
  • The principle of “no work – no pay” applies. The employer does not have to pay the employees during a strike. However, the employer has to make payments in kind which include food, accommodation and other benefits such as pension, medical aid and so on.
  • Employers may appoint replacement labour in response to a strike.

When does a strike end?
A strike ends when the dispute between the employees and their employer is resolved or the demand of the employer is met.

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GLOSSARY OF TERMS:

COLLECTIVE AGREEMENT: a written agreement concerning the terms and conditions of employment or any other matter of mutual interest concluded between registered trade unions, employers and/or registered employer organisations.

DISPUTES OF MUTUAL INTEREST: when a dispute is not regulated by any law, but it is relevant to the workplace and the employment relationship.

ESSENTIAL SERVICE: a service where the interruption of it will endanger the life, personal safety or health of persons for example, the police or fire fighting services.

OPERATIONAL REASONS: a no-fault dismissal based on economic, structural or similar needs of the employer.

How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.


How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.

DISCLAIMER:

The information contained on this website is aimed at providing members of the public with self-help guidance on the law. The information applies to South Africa, unless it is specifically stated that the information applies to another country. Although LegalWise has tried to ensure that the information is accurate and current, it is important to remember that the law constantly changes. And, although LegalWise has tried to provide information of a high quality, we cannot guarantee that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, agents or representatives will under no circumstances accept liability or be held liable for the consequences resulting from, the use of or the inability to use the information, or, any negligence by us relating to the information so used. The information contained on this website has not been provided to meet the individual requirements of a specific person and we insist that legal advice be obtained relating to a person’s unique circumstances.