In South African labour law, strikes are a fundamental right for workers to collectively express their grievances and negotiate better working conditions. However, it is important to understand the distinction between protected and unprotected strikes to ensure compliance with legal requirements. This article provides an in-depth guide to protected and unprotected strikes under South African law, helping employers and employees navigate the complexities of labor relations.

Protected Strikes: Rights and Procedures

• Definition: A protected strike is a lawful industrial action conducted by employees in accordance with the procedures outlined in the Labour Relations Act (“LRA”). It is undertaken to address grievances or negotiate terms and conditions of employment.

• Requirements for Protection: To qualify as a protected strike, certain requirements must be met:

  • Compliance with Notice Requirements: Employees or their trade unions must provide written notice of their intention to strike to the employer, relevant bargaining council and the Commission for Conciliation, Mediation, and Arbitration (“CCMA”) at least 48 hours prior to the strike.

  • Exhaustion of Dispute Resolution: The parties involved should have made reasonable attempts to resolve the dispute through negotiation or other dispute resolution mechanisms.

• Rights and Protections:

  • Protection against Dismissal: Employees participating in a protected strike are protected against dismissal solely based on their participation, provided the strike adheres to the legal procedures.

  • Immunity from Legal Action: Striking employees and their trade unions are immune from legal action for any losses or damages caused during the protected strike.

Unprotected Strikes: Risks and Consequences

• Definition: An unprotected strike refers to a strike that does not comply with the requirements stipulated by the LRA, such as failing to provide proper notice or participating in an unlawful strike.

• Consequences and Risks:

  • Dismissal: Employees engaged in an unprotected strike can face disciplinary action, including possible dismissal by the employer.

  • Loss of Protections: Employees lose the protections provided by labour laws during an unprotected strike, making them vulnerable to legal action and potential termination.

Understanding the Distinction: Impact on Employers and Employees

• Employers:

  • Protected Strikes: Employers must respect the rights of employees to engage in protected strikes and refrain from taking any disciplinary action or dismissing employees solely on the grounds of their participation.

  • Unprotected Strikes: Employers have the right to take disciplinary action, including dismissal, against employees engaged in an unprotected strike, as it is considered a breach of contract.

• Employees:

  • Protected Strikes: Employees engaging in a protected strike can exercise their rights without fear of dismissal, provided they adhere to the legal requirements.

  • Unprotected Strikes: Employees participating in an unprotected strike are at risk of facing disciplinary action, including dismissal, as their actions are not legally protected.

Conclusion

Understanding the distinction between protected and unprotected strikes is crucial for both employers and employees in South Africa. Compliance with the legal procedures for protected strikes ensures that employees can exercise their rights while employers uphold labor laws. However, engaging in an unprotected strike can have severe consequences for employees, including potential dismissal.

For expert legal advice and guidance on strikes and labor relations under South African law, consult with our experienced team at Barter McKellar. We provide comprehensive assistance to employers and employees, helping them navigate the complexities of strikes and labor disputes while ensuring compliance with the law.