To Strike is a Constitutional Right
- a dispute has been referred to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
- a certificate that a dispute remains unresolved has been issued;
- 30 days have elapsed since the referral; and
- 48 hours’ written notice of a strike is given to
a. the employer; or
b. a council (if the dispute relates to a collective agreement to be concluded in a council); or
c. to an employers’ organisation (if the employer is a member of an organisation that is a party to the dispute); or
- 48 hours’ written notice of a lockout is given to
a. the trade union; or
b. to the workers (if they are not trade union members); or
c. a council (if the dispute relates to a collective agreement to be concluded in a council).
- be dismissed; or
- have civil legal proceedings brought against them.
- do not have to pay workers, unless workers ask that payment in kind (accommodation, food, basic amenities) be continued; and
- may fairly dismiss a worker for misconduct or for operational needs.
The term “protected” strike action refers to a lawful strike which is in compliance with the requirements of the Labour Relations Act 1995 (“LRA”).
The effect of embarking on protected strike action is that no employee may be dismissed by reason of their participation in the strike, nor do they commit a breach of their contracts of employment by participating in protected strike action.
The first procedural requirement is a mandatory referral of “the issue in dispute” to the CCMA which results in a conciliation meeting between the parties. The purpose of conciliation is an attempt to settle the dispute, with the assistance of an appointed CCMA Commissioner. If the dispute is settled at conciliation, strike action is averted.
If however conciliation is unsuccessful, the CCMA issues a certificate stating that the issue in dispute remains unresolved. It is this certificate which is the second procedural requirement of protected strike action in terms of the LRA.
If 30 days has lapsed, no certificate is needed.
In this instance, no certificate was issued, but the 30 days has lapsed. This was confirmed by the Acting Senior Commissioner, Collective Bargaining at the CCMA:
From: Shimane Kgantse [mailto:shimanek@CCMA.org.za]
Sent: Friday, October 27, 2017 12:00 PM
Cc: email@example.com; firstname.lastname@example.org; Boitumelo Fatane <BoitumeloF@CCMA.org.za>
Subject: FW: GAJB20270-17
Dear Mr Booysen
Thank you for your mail.
The view of the Commissioner Madubanya who facilitated the wage dispute is that she did not get an opportunity to mediate over the dispute. We are mindful that legally there’s nothing precluding the Trade from embarking on a protected strike since thirty days has lapsed from the date of the referral. We however request you indulgence and provide us with an opportunity to have a mediated session with the parties before exercising your rights.
Looking forward to your positive response.
Acting Senior Commissioner Collective Bargaining
Thirdly, any person and/ or union who, after the issuing of a certificate by the CCMA, wishes to go out on strike must give an employer at least 48 hours advance notice of the intended strike action.
Provided these three procedural requirements are complied with, the strike is deemed to be protected in terms of the LRA.