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ABR 224

ABR 224. Lecturer: ADV D M SMIT Contact number: 051 401 3593 Lecture 17. Strikes & Lock-Outs. A right to Strike Section 23 of the Constitution of the RSA, 1996 Guarantees tight to strike subject to general limitation provisions of section 36

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ABR 224

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  1. ABR 224 Lecturer: ADV D M SMIT Contact number: 051 401 3593 Lecture 17

  2. Strikes & Lock-Outs • A right to Strike • Section 23 of the Constitution of the RSA, 1996 • Guarantees tight to strike subject to general limitation provisions of section 36 • Chapter IV of the LRA, 1995 gives statutory effect ot the constitutional protection afforded industrial action by making it much easier to strike legally and by protecting the hob security of strikers if the strikes is in compliance with the Act.

  3. Strikes and Lock-Outs • Protected strike: employees complied with the procedural prerequisites of the act and cannot be dismissed for participation • NB! Right to strike is not unlimited • Previous dispensation: employees had freedom to strike, not right • Previous dispensation: strike constituted material breach of the common law contract of employment and strikers could be dismissed, irrespective of the legality or otherwise of the strike.

  4. Strikes and Lock-Outs • 3 Classifications of Strike: • Protected strikes (s67) conform with procedural requirements of the Act; workers may not be dismissed for their involvement in protected strike • Unprotected strikes (s68)do not conform with the procedural requirements of the Act; workers may be dismissed for striking, provided the dismissals are fair (procedural and substantive fairness standards still apply) • Prohibited strikes (s65(1))absolutely prohibited by the act; same consequences as unprotected strikes

  5. Strikes and Lock-Outs • Definition of strike: • 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 and every reference to work in the definition includes overtime work, whether it is voluntary or compulsory…

  6. Strikes and Lock-Outs • Prerequisites: • Collective action of workers or ex-workers, having a common goal • An act or omission • Purpose: to remedy a grievance or resolving a dispute

  7. Strikes and Lock-Outs • Forms of Strike • Economic strike • Secondary strike (Sympathy strike) • Go-slow • Work to rule • Sit-in strike

  8. Strikes and Lock-Outs • Prohibited Strikes: no person may take part in industrial action in any of the following circumstances: • Collective agreement prohibiting industrial action • Issue subject to compulsory arbitration • Arbitration or Labour Court • Essential services • Maintenance worker • Sectoral determination • Binding arbitration award, collective agreement, ministerial determination

  9. Strikes and Lock-Outs • Essential Services • A service which interrupted can endanger the life, personal safety or health of the whole or any part of the population • Parliamentary service • South African Police Services • Essential Service Committee (ESC): conciliation and compulsory arbitration

  10. Strikes and Lock-Outs • Maintenance Services: • If the interruption of that service has the effect of material physical destruction to any working area, plant or machinery. For example: interruption of the removal of underground water in a mine shaft during work stoppage may have the effect of flooding the workplace to the extent that mining the shaft becomes impossible

  11. Strikes and Lock-Outs • Protected strikes: • 1995 LRA prescribes procedures that must be complied to • Distinguish between generally applicable procedures and deviations in respect of specific issues and circumstances

  12. Strikes and Lock-Outs • Procedure for protected industrial action: • Dispute • Referral to council or CCMA (step 1) • Conciliation: a certificate of non resolution has been issued (step 2) • Employer/union to five other party 48 hours’ written notice before commencement of strike or lock-out (if the State is the employer 7 days’ notice is required) (step 3) • Protected strike/lock out may commence after expiry of notice period

  13. Strikes and Lock-Outs • Special procedure: • Refusal to bargain • In response to an un-procedural lock-out • If lock-out is in response to un-procedural strike • Members of a bargaining or a statutory council • Collective agreement for procedure • Employer has unilaterally amended conditions of employment

  14. Strikes and Lock-Outs • Consequences of strike • Protected strikes • SCAB Labour • Unprotected or Prohibited Strikes • Important innovations of the new statutory strike law

  15. Strikes and Lock-Outs • Lock-Outs (please include 17.9 in study outcomes) • The employer’s economic weapon during the collective bargaining process to compel workers to accept his offer or proposal • Definition: lock-out means the exclusion by an employer of employees from the employers’ 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

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