Chapter 13 Industrial action

1
Chapter 13Industrial action
2

• Lecture Outcomes
• Discuss the importance of the right to strike
• Understand the seasonal pattern of strikes in SA
• Track the developments in SA law which have led
  to the right to strike
• Understand the definition of a strike under the
  LRA
• Differentiate between various forms of industrial
  action
• Demonstrate a thorough knowledge of the legal
  requirements and principles surrounding
  industrial action under the LRA (recap of
  previous discussion)
• List the considerations when dismissing
  unprotected strikers
• Discuss picketing as an ancillary to a strike

3
13.1 Introduction

• Industrial action is necessary balances the
  bargaining power in the employment relationship
• collective bargaining without the right to
  strike is effectively collective begging
• Employees right to strike
• Employers recourse to lockout

4

• NOTE
• TEXT Sections 13.2 13.6 (pg 499 507) not
  examinable

5
13.7 Seasonal pattern in SA

• The wage round
• Third quarter of the year
• E.g. of key industries bargaining at this time -
  metal, mining, motor
• 13.8 Is SA strike prone?
• Stats significantly fewer strikes (see Fig 13.8
  pg 509)

6
13.9 Development in the law

• Repression
• Strike action completely outlawed (e.g. black
  workers under the Industrial Conciliation Act of
  1924)
• Tolerance
• 1981 - Wiehahn Commission led to new LRA
  Introduced a freedom to strike for all workers
• Protection from civil and criminal liability, but
  not dismissal (strike breach of contract)
• Right to strike recourse to lockout
• LRA of 1995 Strike and lockout not a breach of
  contract
• What the 1995 LRA has corrected TEXT pg 511

7
13.10 Legal dimensions

• Definition of strike (TEXT pg 511-512)
• Complete cessation OR retardation of work
• Concerted action
• In furtherance of a demand
• Includes overtime-bans

8

• Types of strike action
• Go-slows
• Work-to-rule
• Work-ins or sit-ins
• Other forms of action
• Product boycotts
• Picketing
• Socio-economic protest action

9
RECAP (from TEXT Chapter 7)

• Protected strikes and lockouts under the 1995
  Labour Relations Act (procedural requirements)
• Secondary (sympathy) strikes
• Limitations on the right to strike or recourse to
  lockout (including concept of essential services
  and maintenance services)
• Strikes and lockouts in compliance with the Act
• Strikes and lockouts not in compliance with the
  Act
• Replacement labour
• Socio-economic protest action

10

• Strike in response to dismissal for operational
  requirements
• Strike may be used in case of large-scale
  retrenchments (instead of referral to Labour
  Court)
• Considerations before dismissing unprotected
  strikers
• Ensure substantive and procedural fairness
• Consider
• Seriousness of contravention of the LRA
• Whether or not there were attempts to comply with
  the LRA
• Whether the strike was motivated by unjustified
  conduct by the employer
• PLUS
• Contact a trade union official to discuss the
  possible course of action
• Issue an unambiguous ultimatum
• Allow employees sufficient time to consider and
  respond

11
Picketing

• Ancillary to a strike
• SA Constitution grants this right
• LRA gives effect to, but also limits, the right
• - Peaceful demonstration in support of protected
  strike or in opposition to a lockout
• - Public area outside employers premises
  inside employers premises with their permission
• - Picketing rules required (CCMA to assist if
  necessary)

12
Code of Good Practice onPicketing

• See TEXT pg 526 (Table 13.1)