Can you believe that 560 protests have taken place in Gauteng between 1 April and 10 May this year? Yes, South Africa has become the ‘protest capital’ of the world! According to the police as many as 40 protests were violent!
Although everyone has the right to strike, acts of violence during a strike is in contravention of the law. Think about, our constitution awards everyone the right to strike in section 23(2) (c) but also the right to safety in section 12(1) (c). This is not even to mention everyone’s property rights. This naturally means that one may not apply your right to strike with violence against life and property. So when is a strike lawful? In legal terms one refers to a protected and an unprotected strike. A protected strike is when the correct procedure is followed before employees engage in a strike.
What does the Labour Relations Act have to say on this topic?
- A strike is not only when employees protest with banners and vocal demands, but also when employees intentionally work at a slower pace than usual (also called a ‘go slow’) or when the employees are exceptionally thorough in what they do in order for the process to take longer and to miss certain deadlines;
- There must be more than one employee involved before conduct may be called a strike;
- The reason behind the strike must be lawful;
- The following circumstances will lead to a strike being unprotected:
– A collective agreement in terms of which employees may not strike;
– A collective agreement in terms of which the employees agree to rather refer a dispute for arbitration;
– If the dispute concerns a right which must be referred to the CCMA;
– If the employee is fulfilling an essential service (policemen and certain hospital staff may not strike);
- The correct procedure must be followed for a protected strike. First one must refer the matter to the CCMA for conciliation. A commissioner will get involved and hear you out. If necessary, the commissioner will issue a certificate. Next one must give the employer 48 hours written notice of the strike.
The bargaining power behind a strike is vital, which is why the right to strike remains intact. We understand that sometimes this is the only way to get your employer’s attention! It is however extremely important that you follow the correct procedure before you engage in a strike. If not, you are in breach of contract; the employer can obtain an interdict against you and don’t forget the criminal consequences of a violent protest!