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The right to strike is protected and enshrined in the Constitution, and applies to all employees. However, the Labour Relations Act does set some restrictions in place for strikes to be legal. Scorpion explains 5 things you need to know about strikes in South Africa.
While you can’t strike on your own as an individual, you do not need to be a member of the trade union involved in the strike in order to join the strike. The employer has a responsibility to record which employees participated in the strike, but this is to protect both sides, as it is important information if the issue of the strike goes to court or if action is taken against the striking employees and they seek compensation.
The right to strike is given to all employees by law, but in order for a strike to be legal, it must be a “protected” strike. This means that it complies with the requirements of the Labour Relations Act, including that: 1.) The issue in dispute has been referred to the CCMA 2.) Either 30 days have passed since the issue was referred, or the CCMA issues a certificate stating that the dispute remains unresolved 3.) A written strike notice is issued detailing the start date of the strike to the employer at least 48 hours before the planned strike begins.
The law distinguishes between “rights” disputes and “interest” disputes. Rights disputes are issues relating to existing rights being infringed upon, for example: unfair dismissal or severance pay. Employees may not strike over rights disputes. Interest disputes are over something that the employees want, but that they are not entitled to by law yet, and they involve negotiation. For example: demands for increased wages, changes to working hours/shifts, overtime pay.
Employees may also not strike over an unlawful demand, for example, demanding that a certain manager be fired.
Even if it is a protected strike, breaking the law is not protected. Employers can take disciplinary action against employees who become violent and break the law, including drastic measures such as dismissal. However, you cannot be dismissed simply for taking part in the protected strike.
No work, no pay. Where an employer provides food or accommodation to employees as well, the employer has the right to withhold these when the strike begins. However, if the union requests that these be continued, the employer must continue with them and can then, once the strike is over, make appropriate deductions or sue for compensation.
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* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 3 April 2023
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