The CCMA has been known as one of the busiest and most backlogged forums in South Africa. This clearly indicates the challenges and complexities involved in the workplace. Bargaining councils involved in collective bargaining and large-scale trade unions also indicate that the workplace is one to be taken seriously, notwithstanding the obvious and often overlooked premise that the workplace drives most of the South African economy. Besides the usual topics of dispute (salary, compensation, leave etc.), the interpersonal dynamics often add to the complex balancing of employees’ and individual rights with those of employers, separately and collectively, and that of the business. A popular topic in workplace law is striking.
The Labour Relations Act makes the requirements of a strike fairly wide: employees are known to strike when they refuse to work (the most well-known form) or they can strike while still working – often a more suitable option. To this end, employees could engage in a “go slow” which is what the name suggests: doing everything slower. Another form is the “work to rule” whereby every aspect and part of the job description is fulfilled in its finest and unnecessary detail thereby frustrating the process in intentional retardation of tasks and duties. The strike must also have a purpose and be done by more than one employee.
The substantive limitation on the right to strike is another important issue: if any one of the following apply the strike is not protected:
- If there was a prior collective agreement between the employer and trade union which prohibits a strike on a certain issue and the strike still takes place;
- If there is an agreement that certain disputes must be arbitrated; and
- If there is a dispute and the employer or trade union has the right to refer it to arbitration or the Labour Court, that issue cannot be the basis of a strike. For example, in dismissal, if you have been dismissed and feel it was unfair dismissal then the appropriate avenue is for you to arbitrate or approach the Labour Court. Because you have that right you cannot strike about it as well (the dismissal or unfair labour practice).
The topic of workplace law is, as mentioned, often complex and involves a variety of interests and rights which need to be balanced as best they can. If you require any assistance do not hesitate to contact us to assist you.