Strikes

Question 1

Procedural requirements:

Answer 1

1. must be referred to bargaining council/statutory council/ the CCMA
2. If dispute is not resolved:
   - Commissioner MUST issue a certificate that the dispute has not been resolved.
   - A period of 30 days must lapse from the time of the referral
   - Then the employer must be given 48 hours notice in writing of the employees intention to strike.
3. Only then may the employee strike
4. IMPORTANT= if not followed = unprotected strike

Question 2

Secondary strike

Answer 2

Also known as a sympathy strikes.

Will only be lawful:
- primary strike was lawful
- 7 day written notice to their employer
- strike action must be reasonable in relation to the direct or indirect effect that it may have

Question 3

Lockouts:

Answer 3

• the exclusion by the employer of the employees from the employer’s workplace, for the purpose of compelling the employees to accept the demand in respect of any matter of mutual interest between employer and employees, whether or not the employer breaches those employees’ contract of employment in the course of or for the purpose of that exclsuion.

Question 4

Picketing:

Answer 4

• registered trade union may authorise a peaceful picket by its members and supporters in support of a protected strike.
• can take place in which the public can access
• employees cannot be held delictually liable for breach of contract

Question 5

Main functions of the statutory council:

Answer 5

• resolve disputes
• promote training and education schemes
• establish administrator pension, provident, medical aid, sick pay, holiday and employment schemes
• conclude collective agreements

Workplace forums may be established in any workplace in which an employer employs more than 100 employees.

Question 6

Define strikes:

Answer 6

• 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 the different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee and every reference to ‘work’ in this definition includes overtime work whether voluntary or compulsory.

Question 7

Limitations of strikes:

Answer 7

• no person may take part in a strike or lock-out or in any conduct in contemplation or furtherance of a strike or a lock out if-
  (a) the person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in the dispute.
  (b) that person is bound by an agreement that requires the issue in the dispute to be referred to arbitration
  (c) the issue in dispute is one that a party has the right to refer to arbitration or the Labour court in terms of the Act.
  (d) that person is engaged in:
  (i) an essential service
  (ii) a maintenance service
• subject to a collective agreement, no person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or lock-out:
  (a) if that person is bound by:
  (i) any arbitration award or collective agreement that regulates the issue in dispute OR
  (ii) any determination made in terms of section 44 by the Minister that regulates the issue in dispute

(b) any determination made in terms of the Wage Act and that regulates the issue in dispute, during the first year of the determination.

Question 8

Trade Unions:

Answer 8

Representative rights:
- assist and represent employees in grievance and disciplinary proceedings
- monitor employer conduct

No rights to bargain with employer
refusal=strike
have to conciliate on refusal before striking

Question 9

Registration of bargaining councils:

Answer 9

• adopt a constitution
• precise limits
• sufficiently representative
• appointment of representatives
• who they wish to represent

Question 10

Powers and Functions of Bargaining Council:

Answer 10

• conclude and enforce collective agreements
• blinds only those that are parties to the agreements
• can ask minister of labour to extend to non-parties

Question 11

Extension of collective agreements:

Answer 11

• majority of the employees are members of the trade union and are employed by members of the employer organisations
• effective procedures to deal with those that cannot comply
• independent body - application or withdrawal from exemption

disputes must be referred to bargaining council in sector.

Question 12

Statutory Council:

Answer 12

• established when there is no bargaining council in that sector.
• registration:
  one or more trade union whose members constitutes at least 30% of employees in that sector OR
  one or more employers organisations that employ at least 30% of employers in that sector

1. adopt a constitution
2. precise limits
3. sufficiently representative
4. appointment of representatives
5. who they wish to represent

Question 13

Registration of Trade Unions in terms of s95 and 96 of the LRA:

Answer 13

• must have a name
• must have a constitution which holds a ballot and failure to participate or obtain a majority vote
• must have an SA address
  -must be independent

Question 14

Define Collective Agreement:

Answer 14

a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on one hand, and on the other hand:
- one or more employers
- one or more registered employers organizations OR
- one or more employers and one or more registered employers’ organizations. council includes of a bargaining council and a statutory council.