The right to strike is recognised in most so-called western democracies, and is considered to be a necessary element of a trade union’s options when a deadlock is reached with an employer on various agenda items such as wage negotiations.

Some commentators would argue that the right to strike is necessary and entirely legitimate, in order to address the in balance of power between employers and employees in collective bargaining, and other dispute areas.  This world view justifies this position on grounds that socio-economic forces disadvantage labour, and therefore warrant a right to strike apply pressure on employers to acquiesce in certain labour disputes.

The right to strike in South Africa is enshrined in the Consitution, which states, at section 23(2)(c) that “Every worker has the right to .. strike”.  It is however, not an unfettered right, and our law obligates trade unions to comply with a mandatory pre-strike procedure before a strike is ‘protected’.

So, what is a strike?  Section 213 of the Labour Relations Act stipulates that a strike “means 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, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory”.

One frequently still hears erroneous references to ‘legal’ and ‘illegal’ strikes.  The notion of ‘legal’ and ‘illegal’ strikes ended approximately twenty-three years ago, with the introduction of the Labour Relations Act, to replace the then ‘old’ Labour Relations Act.

Simply put, strikers will be protected from dismissal if the trade union has complied with two relatively straight forward mandatory pre-strike procedures.  Firstly, the trade union must allow for a conciliation process, typically under the auspices of the CCMA or a Bargaining Council, and thereafter, if the conciliation/mediation process fails to resolve the dispute, give the employer forty-eight hours’ written notice of its intention to strike.

If these two mandatory steps are followed, the strike is ‘protected’, and strikers are then protected from being dismissed for participating in the ‘protected’ strike.  On the other had, should these two mandatory pre-strike steps not be followed, a subsequent strike would be ’unprotected’, meaning that the strikers are not protected from being dismissed for participation in the ‘unprotected’ strike.

Employers typically, and predictably, treat both protected and unprotected strikes as unpaid; no work no pay.

Section 65 of the Labour Relations Act places certain limitations on the right to strike.  For example, striking is prohibited in the event that the issue in dispute can be referred for adjudication by way of arbitration or the Labour Court.

Strikes are also prohibited in so-called essential services.  The International Labour Organisation recognises that it is proper to prohibit strikes in essential services, as strikes essential services would harm the population, and be detrimental to life, health and safety. The Essential services Committee, established per the provisions of the Labour Relations Act, have declared various essential services to include air traffic control blood transfusion services and power generations institutions, such as Eskom.

Even though strikers in a protected strike are protected from being dismissed for participating in the protected strike, they are not protected from being dismissed for strike-related misconduct.  For example, and striker in a protected strike who assaults a non-striker, will still be liable for dismissal on grounds of misconduct.

Strikers participating in an unprotected strike can be interdicted by the Labour Court.  However, the dismissal of unprotected strikers would be unfair if the unprotected strike was in response to some or other unjustified act on the part of the employer.

In the absence of such unjustified employer conduct, unprotected strikers can be disciplined for misconduct, and potentially dismissed if they fail to return to work after receiving reasonable ultimatums from the employer to do so. That said, the mass dismissal of unprotected strikers requires much contemplation given the industrial relations consequences of such a mass dismissal.

What are more commonly referred to as sympathy strikes, are referred to as secondary strikes in the Labour Relations Act.  In order for a secondary strike itself to be protected, it must have the capacity to influence the employer in the primary strike, and the seven days’ written notice must be served prior to the commencement of a secondary strike.