Study Unit 9 PART 2 Flashcards
How is the right to strike regulated?
-Sec 23(2) of the constitution provides for the right to strike
-It is not an absolute right and has substantive and procedural limitations
What is a strike according to section 213 of the LRA?
the partial/ complete refusal to work/ 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
Three Elements of a Strike
What are the 3 elements of a strike?
- Refusal to work
- Retardiation of work through a go-slow
- Obstruction of work- where workers affect the production in one way
Strike
What did the laour court uphold regarding protected strikes?
If a strike is protected then employees could continue striking even after they have been dismissed
Strikes
Who can engage in a strike regarding refusal to work?
Refusal must be by persons who are
or have been employed by the same
employers or by different employers
Strikes
What did the Schoeman v Samsung Electronic case state regarding collective action?
Collective action means that more than one person must be involved in the strike
- The court held that an individual employee can’t strike although a single employer can lock-out employees, a lock-out can’t be affected against a single employee
Strikes
What is the purpose of a strike?
For purpose of remedying a grievance or resolving a dispute
* Includes an alleged dispute
* All employees entitled to strike
whether or not they are directly
involved in the dispute
* Cannot strike in support of an unlawful
demand
* Once employer accedes to demands
strike no longer has purpose and
terminates
matters of mutual interest
* It includes “disputes of right” and
“disputes of interest”
* However, LRA prohibits strikes in
respect of matters that can be referred
to arbitration or the Labour Court
(disputes of right)
* Essentially, strikes are in relation to
disputes of interest, with some
exceptions
Substantive Limitations
How does section 65 of the LRA limit a persons right to strike?
No person may take part in a strike or lock-out if:
* (a) there is a collective agreement in place that binds such persons and prohibits them from taking part in a strike or lock-out in respect of an issue in dispute;
* (b) that person is bound by an agreement that requires such a dispute to be referred to arbitration;
* (c) the issue in dispute is one that a party has the right to refer to the Labour Court or arbitration in terms of the LRA or any other employment law;
* (d) that person is engaged in an essential service or maintenance service
Procedural Limitations
What is the section 64(1) procedural limitations for the right to strike?
*Every employee has the right to strike and every employer has recourse to lock-out
if:
*(A)the issue in dispute has been referred to a council or to the Commission
*(i) a certificate stating that the dispute remains unresolved has been issued
*(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that -
*(B) in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer.” (7 days, where state is the employer)
Procedural Limitations
What happens after notice has been given according to the SATWU v Equity Aviation Services case?
All employees are allowed to go on strike and including members of minority unions and non-union members
Procedural Limitations
What is advisory arbitration?
When the issue concerns a refusal bargain then an advisory aritraryion is made before a notice of intention to commence a strike is given
- The AA isn’t binding and parties can proceed with the strike
- A refusal argain is a refusal to recognise a union as a collective bargaining agent , refusal to agree with the est. of a BC, resignation of a party from a bargaining council
Secondary Strikes
What is a secondary strike and how are they limited?
Section 66 of the LRA
Strike in support of a primary strike by employees employed by another employer
Limitations on secondary strikes
* Primary strike lawful;
* 7 days notice to secondary employer;
* Secondary strike reasonable in relation to effect on primary employer
Immunities
What are immunities against claims for breach of contract?
Immunity is given against delictual claims by the employer against claims for breach of contract. The employer is prevented from interdictuing anyone taking part in a protected strike
Immunities
What are immunities against dismissal?
S67- An employer may not dismiss employees taking part in a protected strike or else it is an AUD as per S187(1)
Immunities
What are immunities against discrimination?
An employer may not give financial benefits to workers not on strike or withdraw benfits for those on strike
