There is a broad distinction between strikes that comply with section 64 of the LRA and those that do not. Those that do comply are known as “protected strikes” while those that do not comply are known as “unprotected strikes”. If a strike is protected, a striker is protected from any civil action an employer may wish to institute and the striker may not be dismissed for striking. An unprotected strike constitutes a breach of contract for which the employees may be dismissed, interdicted or sued for compensation by the employer.
In order for a strike to be protected, the employees must comply with section 64 of the LRA unless different procedures are provided for in a collective agreement which is binding on employees.
Section 64(1)(a) provides that the dispute must be referred by the employees or union 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.
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:
“In summary: 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.”
The strike notice need not record the issue in dispute though the Courts have held that where the employer does not know what the reason for the strike is (where there are, for example, multiple referrals), the 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:
- 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;
- The strike conforms to the procedure in the collective agreement;
- The employees strike in response to a lock-out by their employer that does not comply with the provisions of the LRA;
- 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 “status quo” notice issued by an employee or trade union.
The first two categories apply where the parties have chosen to regulate their dispute through collectively agreed procedures. Failure to comply with the procedures set out in the agreement does, however, not result in the strike being unprotected provided the statutory requirements are complied with.
In circumstances where a dispute relating to a unilateral change to terms and conditions is referred to the CCMA, 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.