Restricting the Right to Strike

Gavin Stansfield, Director, Employment, Cliffe Dekker Hofmeyr

As the law currently stands, there are three procedural requirements which must be complied with by a party (usually a trade union) who wishes to embark on protected strike action.

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. 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.

The Labour Relations Amendment Bill 2012 proposes the insertion of a fourth procedural requirement, namely the conducting by a trade union amongst its members of a strike ballot the aim of which is to determine whether strike action should be embarked upon.

Only if a majority of those members who voted in the ballot vote in favour of the strike, will the strike be regarded as protected. The onus rests upon the CCMA to certify that a trade union has conducted a ballet in compliance with the requirements of the LRA thereby introducing a fourth procedural requirement regulating the right to strike.

Perhaps unsurprisingly, this proposed amendment has met significant opposition from organisedlabour. There can be little doubt that the practical effect of such an amendment shall constitute a procedural hindrance on unions wishing to embark on protected strike action.

Critics of the amendment underline the difficulties associated with organising a ballot within single or even multiple workplaces, the time and cost associated therewith and the practical difficulties associated with counting the ballots and collating their results. In many instances, this may delay the onset of proposed strike action.

Supporters of the amendment on the other hand argue that the introduction of a strike ballot is necessary in order to verify that the members themselves (being the persons ultimately affected by the strike and by not earning a wage for the duration of the strike action), are in support of the strike as opposed to merely trade union officials wishing to assert their muscle by calling their members out on strike action.

Whether this proposed amendment survives the process of public scrutiny and comment currently underway and makes an appearance in our law in due course remains to be seen.

For more information contact Gavin on [email protected] or visit www.cliffedekkerhofmeyr.com