What happens in the case of labour disputes under lockdown?
For those employers that have qualified as essential services, will your employees be permitted to lawfully strike whilst the lockdown remains in place? Employees across the sectors have threatened to strike as a result of a lack of Personal Protective Equipment (“PPE”) and wage negotiations. When will these strikes be lawful and why should facilitated negotiations or mediation be relied upon to resolve employer-employee disputes?
1. What is the right to strike?
The right to strike is protected by the Constitution and the Labour Relations Act (“LRA”). According to the latter Act, a strike is defined 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…”
2. When is a strike lawful?
In order to constitute a lawful or protected strike the following requirements must be fulfilled as per section 64 of the LRA:
"The dispute between the employer and employee must first be referred to a Bargaining Council registered within the scope and area of the industry and accredited or the Commission for Conciliation, Mediation, and Arbitration. A certificate must be issued by the body indicating that the dispute remains unresolved 30 days have passed since the referral of the dispute to either of these bodies (or if the parties agree to extend the 30 day period it passes there is no certificate required)."
The employer must be provided with 48 hours’ notice of the strike in the private sector, and 7 days in the public sector.
3. What is an employer’s right to lockout? The LRA defines an employer’s right to lock-out as the following:
“The exclusion by an employer of employees from the employer’s workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees’ contracts of employment in the course of or for the purpose of that exclusion.”
Importantly, a bargaining council or Commission for Conciliation, Mediation, and Arbitration must conciliate the dispute. If the dispute is unresolved a certificate must be issued.
4. What does the Disaster Management Regulations state? The Disaster Management Regulations, issued in terms of the Disaster Management Act, forbids the gathering of more than 100 people. While a strike may be considered lawful according to the LRA, it may become unlawful in terms of these Regulations. Persons found acting contrary to the Regulations may face the imposition of a fine and/or imprisonment.
5. Is striking under lockdown lawful? If the strike is lawful under the LRA, it may well be lawful under lockdown provided the employees striking do not exceed the amount of 100 persons. Alternatively, employees may choose to strike by remaining at home (“stay-away”) or implementing a “go-slow”.
6. Can essential workers strike? According to the Labour Relations Act, essential services are those that deal with anything that would endanger the life of personal safety or health of the whole or any part of the population. Employees belonging to this category of services are not permitted to strike. Such disputes must be referred for conciliation and if that fails to compulsory arbitration.
The Labour Relations Act has established the Essential Services Committee (ESC), which determines whether or not services should qualify as essential. While the Disaster Management Regulations has distinguished between essential and non-essential services, it can be argued that essential services that have not been classified as such by the ESC are allowed to strike. The consequences of such a strike however during the lockdown period would be disastrous to the health and safety of the country. It would thus be interesting to observe any potential decision on this matter by the CCMA or Labour Court.
7. Consequences of a protected strike Employees participating in a protected strike are protected from dismissal. If an employee is dismissed, the dismissal will be automatically unfair and the employee has the right to refer the matter to the Labour Court. An employer does not have an obligation to pay employees on strike and may employ replacements to fulfill the striking employees’ work. However, should the employees’ accommodation and food form a part of their wages then the employer bears the duty to continue providing this.
8. What role can mediation play? At a time whereby the Labour Court, Bargaining Councils, and the Commission for Conciliation, Mediation, and Arbitration are operating at minimal hours and facing a backlog of cases, it is crucial for employers and employers to explore other options. Facilitated negotiations using elements of mediation and conducted remotely is an essential tool for minimizing risks, and is a viable solution to solving disputes between employers and employees as a result of its functional, independent, cost-effective and expeditious process.
How can Mediateworks Assist? Mediate Works has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors, and lawyers to assist. We have conducted complex facilitation of mutual interest negotiation work and mediated a range of complex disputes. We have the experience, a track record of independence, and a phone call away. We will set up the remote facility, ensure that all data is captured correctly, and provide efficient daily reporting.
We have adapted our processes to comply with the law, your own internal framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver.