The recent and so-called “strike certificate” obtained by the National Union of Metalworkers of South Africa (NUMSA) against the Road Accident Fund (RAF) highlights that strikes are not always about wedges. Thus, raises questions around employees right to strike and their legal protection while participating.
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Strikes are largely, but not always, about wages. The recent and so-called “strike certificate” obtained by the National Union of Metalworkers of South Africa (NUMSA) against the Road Accident Fund (RAF) highlights this. It also raises questions around employees right to strike and, more importantly, to what extent they are protected when participating in strike action.
Adv. Tertius Wessels, Legal Manager at Strata-g Labour Solutions, says people tend to forget that strikes are not only about wages and monetary-related issues. “Employees have the right to strike if they have a collective grievance about various work-related issues and the RAF case is a key example of this.”
“NUMSA lodged a dispute with the Commission for Conciliation, Mediation and Arbitration (CCMA) after attempts to address and/or resolve the grievances of RAF employees regarding their working conditions, with the RAF itself, had failed” he adds.
As the CCMA was unable to resolve the dispute, it issued a certificate of non-resolution to NUMSA. This means RAF employees are now in a position to embark on a protected strike.
Wessels explains that a strike can be defined as action taken by employees to remedy a grievance or resolve a dispute about a matter of mutual interest between the employer and employees. “Strikes can take different forms and need not necessarily be complete work stoppages. They can be intermittent work stoppages or the refusal to work overtime.”
According to the Labour Relations Act, a strike is ‘the partial or complete concerted refusal to work or the retardation or obstruction of work by persons who are or who have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and the employee.’
Wessels says employees need to understand to what extent they are protected during a strike. “The correct procedures need to be followed for a strike to be deemed protected. The first step in the process is to try and resolve the dispute internally failing which, employees should refer the unresolvable to the CCMA. If the CCMA is unable to facilitate an agreement between the two parties, it issues a certificate of non-resolution and workers would then be entitled to embark on a strike after giving their employer proper notice of their intention to do so.”
NUMSA and the RAF followed the appropriate steps to obtain a certificate of non-resolution. “RAF employees can now issue a notice of their intention to embark on a strike, provided they give the employer at least 48 hours’ notice,” says Wessels.
Notably, the RAF does not have recourse against its employees for participating in a strike should they decide to embark on one, especially if the correct procedure has been followed and the strike is protected.
“Even though employees are contractually obliged to come to work, the right to strike is contained within our constitution,” says Wessels. “Since the RAF strike is protected, the employer cannot take disciplinary action against the employees for their refusal to work.”
Participation in a protected strike however, does not exempt employees from civil or criminal liability. “Section 67(5) of the LRA provides that nothing prevents an employer from fairly dismissing an employee for a reason related to the employee's conduct during the strike or for a reason related to the employee's operational requirements” explains Wessels. “Employees may also be held civil and/or criminally liable for their conduct and/or behaviour during a protected strike.”
In response to a strike, employers will almost always exclude employees from the workplace. This is known as a defensive lock-out, a tactic used to compel employees to unconditionally withdraw their demands or to accept a demand of the employer. Both strikes and lock-outs can have a highly detrimental impact on the relationship between employer and employees, especially if they were already strained at the outset.
Wessels suggests that strikes, lock-outs and other drastic measures can be avoided if employers and employees engage in a collective bargaining process. “Where employers are transparent and enjoy good relationships with their employees or Trade Unions, they have more chance of reaching mutually beneficial agreements through a constructive negotiation process.
“Because the ‘principal ‘no work, no pay’ applies during strikes, it is in employees’ best interests to resolve issues before they escalate to a potential strike / lock-out scenario. A good example of this is the successful deflection of a looming strike at SAA Technical. Parties reached a mutual wage agreement by engaging with each other,” he adds. “Various other strikes across industries such as the Motor Industry and Metal and Engineering Industry were avoided as parties were able to reach an agreement.”
Ultimately, disputes can be avoided if employers and employees and/or employers and Trade Unions nurture good relationships with each other and engage each other in good faith. “This will facilitate more honest and open discussion and would allow parties to reach a mutually beneficial agreement,” concludes Wessels.