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Protected Strikes

In this article, the aspects relating to “protected” strikes, will be discussed.

Section 213 of the Labour Relations Act 66 of 1995 (the “LRA”) defines a “strike” as:

“The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or 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 employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory.”

In CWIU v Plascon Decorative (Inland) (Pty) Ltd  (1998) 12 BLLR 1191 (LAC), the Labour Appeal Court found that “employees not performing work must all share the purpose of remedying a grievance or resolving a dispute, the definition imposes no other requirement of mutuality – whether a shared employment relationship with an employer or a shared interest in the grievance or dispute – upon them”.  The definition is therefore wide enough to include both primary strikes and secondary strikes as well as a strike by employees of the same employer who are not directly affected by the issue in dispute.

Similarly, in Tiger Wheels Babelegi (Pty) Ltd t/a TSW International v NUMSA & others  (1999) 1 BLLR 66 (LC), it was confirmed that the definition of “strike” in section 213 was wide enough to protect an industry-wide strike against challenge by an individual employer even though there was no issue in dispute between that employer and the employees concerned.

In SASTAWU & others v Karras t/a Floraline  (1999) 10 BLLR 1097 (LC), the court found that employees’ refusal to work “fell short of qualifying as a strike in terms of the Act because it was not for the purpose of remedying a grievance or resolving a dispute regarding a matter of mutual interest between the parties”.

Similarly, in FAWU & others v Rainbow Chicken Farms   (2000) 1 BLLR 70 (LC),  the individual applicants had refused to work on a particular day because of their religious beliefs. The court concluded that “their conduct  was similar to the conduct of any employee who decided to be absent from work, for whatever reason . . . The fact that the individual applicants gave prior notice of their absenteeism makes no difference”.

In Simba (Pty) Ltd v FAWU & others (1998) 9 BLLR 971 (LC), the Court held that refusal by workers to work a staggered lunch break system did not amount to a strike because there was no evidence of demand, a grievance or a dispute which the employees were seeking to resolve. Nor can the definition of “strike” include a withdrawal of labour to remedy a dispute between trade union members and their union. However, “the definition in section 213 does not require there to be a demand, the fulfillment of which is considered a pre-condition to a return to work. It is sufficient if the concerted refusal to work is aimed at remedying a grievance or resolving a dispute about a matter of mutual interest”

In TSI Holdings (Pty) Ltd & others v NUMSA & others (2006) 7 BLLR 631 (LAC), the Court held that the definition of “issue in dispute” confirms the existence of three categories of strikes, namely, those which have a demand, those where there is no demand but there is a grievance and those in which there is a dispute. There can be no doubt that, where there is a concerted refusal to work or a concerted retardation or obstruction of work which is accompanied by a demand, such a demand is the issue in dispute.
The court went on to rule that an unlawful demand “falls outside the category of demands that can be supported by a concerted refusal to work, retardation or obstruction of work envisaged in the definition of the word ‘strike’ ”. A demand for equity shareholding in the employer’s business has been held to be a lawful demand.
In SACTWU & others v Novel Spinners (Pty) Ltd  (1999) 11 BLLR 1157 (LC),  it was held that “failure of the workers . . . to inform the employer of the reason for their conduct or their demands . . . did not render conduct which was clearly a strike . . . something other than a strike. It is not an essential element of a strike that the workers must have informed their employer of the reason for their action”.
a).     “concerted”
A “concerted” refusal to work implies that there must be more that one person acting with a common purpose. In Schoeman & another v Samsung Electronics SA (Pty) Ltd  (1997) 10 BLLR 1364 (LC) at 1367,  it was held that an individual employee cannot take strike action. In Co-operative Worker Association & another v Petroleum Oil & Gas Co-operative of SA & others[2007] 1 BLLR 55 (LC) at par 23,  without referring to the above ruling, the court came to the opposite conclusion. It is submitted that the view expressed in the former case is consistent with the characterization of a “strike” as “concerted” action which, by definition, appears to require more than one participant.
b).    “work”
“Work” referred to herein, refers to only work that employees are contractually obliged to perform . In Simba (Pty) Limited v FAWU & others (1997) 5 BLLR 602 (LC), the question arose whether work which is illegal can be regarded as “work” for purposes of the definition of “strike”. In this matter, the work which the workers refused to perform was in excess of the  maximum hours permitted by the Basic Conditions of Employment Act. An agreement for the performance of such work was held to be unenforceable and “the word ‘work’ in the phrase ‘retardation of work’ in the definition of the word ‘strike’ . . . does not include work the performance of which beyond a certain time or at a particular time will be illegal. To hold otherwise would be contrary to public policy and would sanction a contravention of the BCEA”.

In Kgasago & others v Meat ’n More Spaza   (1998) 1 BLLR 69 (LC), it was held that, where overtime had been worked in the past and was still expected, a collective refusal to work overtime while a dispute was in progress fell within the definition of “strike”.
The ruling of the Appellate Division in SA Breweries Ltd v Food and Allied Workers Union (1990) (1) SA 92 (A), that the term “work” in the definition of “strike” in the 1956 Act did not include work which workers were not contractually obliged to perform has been overridden by the definition of “strike” in the 1995 Act.
c).    “retardation or obstruction of work”
The phrase ‘retardation or obstruction of work’ occurs where employees continue to work, but at lowered levels of productivity”. In SA Breweries Ltd v Food and Allied Workers Union  (1990) (1) SA 92 (A) at 100,  the Appellate Division held that the phrase “retardation . . . of the progress of work” in the definition of “strike” in the 1956 Act referred to “a go-slow or work to rule, a situation where work is done but at substantially reduced levels of activity and productivity”. In Simba (Pty) Limited v FAWU & others (1997) 5 BLLR 602 (LC),  it was suggested that the mere taking of lunch breaks simultaneously instead of staggering them does not amount to “retardation of work” by employees, even if this results in loss of production.
d).    “persons who are or have been employed”
The strikers must have been  persons who “are” or “have been” employed. Thus only “employees” can strike. The definition of an “employee” is found in section 213 of the LRA. This would not include independent contractors and any other persons not falling within the definition of an “employee”.  In  Marble Hall Spar v SACWU & others (1997) 10 BLLR 1311 (LC), it was held that action by dismissed employees did not amount to a strike in circumstances where an unfair dismissal dispute had been referred to the CCMA.

e).    “For the  purpose of remedying a grievance or resolving a dispute”
In order to qualify as a strike, the action must have a main aim or purpose to attempt ‘to remedy a dispute or solve a grievance relating to a matter of mutual interest between the employer  and employee.
f).    “Between employer and employee”
The matter of mutual interest must be between employer and employee. A Strike which takes place between  two trade unions or more or between a trade union and its members, or between two or more employees is not a strikeable dispute.
There are two types of strikes:
1). A primary strike
2). A secondary strike
A protected strike is one where employees in an entire industry strike in respect of a common grievance or dispute.
A secondary strike occurs when employees strike in respect of other employees’ grievances or disputes. 
In FAWU v Earlybird Farm (Pty) Ltd  (2003) 1 BLLR 20 (LC), the individual applicants, who were employed as drivers, joined a strike called out by their union at the respondent’s processing plant. The court held that, since the applicants were employed by the respondent’s farming operations and were striking in support of higher wages for themselves, their strike was not protected because the dispute referred to the CCMA was over wages paid at the plant. The judge noted that, had it been argued that the drivers were simultaneously striking in support of their fellows at the plant, it would have taken the debate into the terrain of “strikes with mixed motives”: the drivers would concurrently be pursuing their own interests (a “primary strike”) and the interests of their fellows at the processing plant (a “sympathy strike”). In fact, however, the drivers were striking in their own interest and not in sympathy with their co-employees. The judge supported the proposition that participants in one primary strike can profit from the protection enjoyed by co-employees who are participating in another primary strike.
In SACTWU v Free State & Northern Cape Clothing Manufacturers’ Association    (2002) 1 BLLR 27 (LAC),  the appellant union gave notice of a “secondary strike” by its members in support of a “primary strike” by employees at a different branch of the same company. Even though the two branches fell under different bargaining councils, the Labour Appeal Court held that a fundamental element in the definition of “secondary strike” is that the employees must be striking in support of a primary strike by employees of an employer other than their own. The strike was therefore not a secondary strike although, since the original strike was a protected strike, the union had the right to call out all its members employed by that employer.
Where employees of an employer who was not party to a bargaining council took part in an industry-wide strike, it was held in Tiger Wheels Babelegi (Pty) Ltd t/a TSW International v NUMSA & others (1999) 1 BLLR 66 (LC) at par 24,   it was also not a secondary strike because the employees had a material interest in the demands referred to the council.
Essentially, there must be three elements which must be present for a strike to take place:
1.    Specific acts or omissions by employees or previous employees, for example, a refusal to work;
2.    The action has to have a certain aim or purpose, to attempt to remedy a  dispute or solve a grievance relating to a matter of mutual interest between the employees and employer;
3.    The action must be collective.

The previous LRA distinguished between “legal” and “illegal” strikes. Strikes which comply with section 64 of the LRA, are known as “protected strikes” while those strikes which do not comply with section 64 are known as “unprotected strikes”. The strikers must comply with section 64 of the LRA in order for a strike to be protected unless different procedures are provided for in a collective agreement which is binding on employees.
Strikers must be mindful that if a strike is protected, the strikers are protected from any civil action an employer may wish to institute and the striker may not be dismissed, interdicted or sued for compensation by the employer.
Section 64 (1) (a) provides that the issue in dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (the “CCMA”). A certificate of outcome must then be issued which provides that the dispute remains unresolved, or 30 days must have lapsed from the day on which the dispute was referred. The Labour Court is not bound by the CCMA’s categorisation of the dispute on the certificate as one of right or interest. If the dispute is in fact one of mutual interest, the employees may go on strike.
In FAWU & others v Earlybird Farm (Pty) Ltd  (2003) 1 BLLR 20 (LC), the employees were dismissed for participating in a strike which was unprotected because the dispute referred to the CCMA was over an issue different from that referred to conciliation. The court held that strikes, fall into three categories: those that are protected, those that are prohibited, and those that are neither protected nor prohibited. In this case, the strike was neither prohibited nor protected. Although the applicants’ dismissals were not automatically unfair, they could still claim that their dismissal was unfair in the ordinary sense. The strikers, it was held, were guilty of breach of contract in respect of which progressive discipline should have been applied. They were also given no hearings. The applicants were accordingly reinstated and the employer was ordered to pay compensation equivalent to 12 months’ wages.
An appeal against the judgment was dismissed in  Early Bird Farm (Pty) Ltd v FAWU & others (2004) 7 BLLR 628 (LAC).However, the Labour Appeal Court went on to hold that the respondent employees were entitled to strike in support of their colleagues’ demands in another plant without referring a separate dispute to the CCMA. They were therefore engaged in a protected strike at the time of their dismissal, and their dismissal was automatically unfair.
Section 64(1)(b) provides that the union must give the employer at least 48 hours written notice of the commencement of the strike. The notice must specify the exact time of the commencement of the strike. In Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building & Allied Workers Union (2), Froneman DJP stated:

that “the provisions of s 64(1)(b) need to be interpreted and applied in a manner which gives best effect to the primary objects of the Act and its own specific purpose. That needs to be done within the constraints of the language used in the section. One of the primary objects of the Act is to promote orderly collective bargaining. Section 64(1)(b) gives expression to this object by requiring written notice of the commencement of the proposed strike. The section’s specific purpose is to give an employer advance warning of the proposed strike so that an employer may prepare for the power-play that will follow. That specific purpose is defeated if the employer is not informed in the written notice in exact terms when the proposed strike will commence. In the present case, the notice is defective for that reason. The provisions of s 64(1)(b) were not complied with. The proposed strike would thus have been unlawful and should, accordingly, have been interdicted.”

A strike may be interdicted on the basis of non-compliance with section 64(1)(b). Strikers do not waive their right to strike if they do not commence with the strike on the date specified in the strike notice, or if they suspend the strike.

The requirements of section 64(1), i.e. the referral of the dispute to the CCMA and the giving of notice need not be complied with in the following circumstances:

1.    Where the parties to the dispute are members of a Bargaining Council, and the dispute has been dealt with by that council in accordance with its constitution;
2.     The strike conforms to the procedure in the collective agreement;
3.     The employees strike in response to a lock-out by their employer that does not comply with the provisions of the LRA;
4.     The employer locks out the employees in response to their taking part in a strike that does not comply with the provisions of the LRA;
 The employer fails to comply with the requirements of section (4) and (5) which provides that the referral may require the employer not to unilaterally implement the changes or, if it has already done so, restore the previous terms and conditions for the period of the conciliation proceedings. If the employer does not comply within 48 hours, the employees may go on strike without observing the statutory requirements. They may also seek an interdict to enforce compliance.

An employee who participates in a protected strike does not commit a delict or breach of contract. Civil proceedings may not be instituted against any person for taking part in a protected strike. However, the employer can take action against strikers whose conduct constitutes a criminal offence such as assault, intimidation, vandalism and threats or violence to other employees etc. (see section 67 (5) of the LRA).
An employer is not obliged to pay a striking employee. However, if the employee's remuneration includes payment in kind (accommodation, food and other basic amenities of life), the employer must keep this up at the request of the employee. Once the strike is over, the employer may institute civil proceedings in the Labour Court to recover the monetary value of the payment in kind.
It is automatically unfair dismissal to dismiss strikers on the basis of  the employees participating in a protected strike. Dismissed employees could be reinstated or re-employed or awarded compensation equaling 24 months remuneration.
In Adams & others v Coin Security Group (Pty) Ltd   (1998) 12 BLLR 1238 (LC),the Labour Court found that the underlying issue in dispute between the parties was a wage claim, that a strike by the applicants in support of their claim was protected and that their dismissal was therefore automatically unfair. On appeal, the Labour Appeal Court in Coin Security Group (Pty) Ltd v Adams & others (2000) 4 BLLR 371 (LAC), found that the issue in dispute, as characterised by the applicants’ union, was in fact arbitrable and that the strike was therefore unprotected. While a bona fide and reasonable belief by strikers that their strike is protected may have a bearing on the fairness of their dismissal, that is not the case where they have been warned that their belief is mistaken. In this matter the employees had been warned and the judgment of the court a quo was reversed.
In SAAPAWU Free State & others v Fourie & another (2007) 1 BLLR 67 (LC), farm workers were dismissed allegedly for engaging in an unprotected strike whereas, on the evidence, it was apparent that the matter had been referred to the CCMA and that the required notice had been given. The strike was accordingly protected and the dismissals were automatically unfair.
In Early Bird Farm (Pty) Ltd v FAWU & others (2004) 7 BLLR 628 (LAC), FAWU members in the employer’s farming division who had joined a strike called by FAWU were dismissed because, according to the employer, they were subject to a collective agreement concluded with another union and their strike was therefore unprotected. The Labour Appeal Court found that, on the facts, the action taken by the dismissed employees formed part of a protected strike, and their dismissal was therefore automatically unfair.
In SATAWU & another v Equity Aviation Services (Pty) Ltd (2006) 11 BLLR 1115 (LC), non-union members were dismissed after joining a strike called by the applicant union. Since “every” employee has the right to strike, it was held, the dismissals were automatically unfair.
In the event that strikers are dismissed as a result of operational requirements, the employer must still have regard to procedural and substantive fairness.
In SACWU & others v Afrox Ltd   (1999) 10 BLLR 1005 (LAC), the judgment of the court a quo is reported as SACWU & others v Afrox Ltd (1998) 2 BLLR 171 (LC), the central issue was whether the dismissal of the applicants was based on their participation in a protected strike or on the employer’s operational requirements. The prohibition on dismissal of strikers, the judge found, does not preclude an employer from dismissing for operational needs even if those needs were a consequence of the strike. The test is whether participation in the strike was the “main”, “dominant” or “legal” cause of the dismissal. The onus is on the employer to prove that the dismissals were based on an “operational reason” and that the requirements of the Act were followed. During protected strikes, it was suggested, retrenchments should be resorted to only after the employer has considered other options and has paid proper attention to the possibility of allowing the outcome of the dispute to be dictated by power play.
Similarly, in NUMSA & others v Dorbyl Ltd & another (2004) 9 BLLR 914 (LC), the court acknowledged that protected strikers may be dismissed fairly if the dominant reason for the dismissal is a genuine operational requirement. However, even if this is so the court must still be satisfied that the dismissal is procedurally fair.


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