LABOUR LAW

LWLBA1-22
WEEK 6: STRIKES AND PROTEST ACTIONS
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Learning Journey for week 6
Learning Journey for week 6
Learning Journey for week 6
Reminder:

Online quiz opens 9th June at 8am –

15th June at 23:59
Study content from week 0 – 4.
This Formative is weighted at 20%.

No deferred opportunity.
Lessons Covered in this slide deck:
Lesson 15: Strikes
In this lesson, you will learn about:
• The legal components of both strikes, lockouts, picketing and
protest action in South African labour law.
Lesson 16: Types of Strikes
In this lesson, you will learn about:
• The legal components of both strikes, lockouts, picketing and
protest action in South African labour law.
Prescribed reading
Garbers, C., Le Roux, P.A.K. 2024. The Essential Labour Law
Handbook. 8th ed. MACE Publications. ISBN: 9780796123114.
Chapter 18 (Strikes) and 19 (types of strikes).
 Metro Bakery Dispute
Metro Bakery employs 80 workers in Cape Town.
Management announced a 15% pay cut due to rising costs.
Workers are angry and want to strike immediately.
The Problem:
• Workers submitted a grievance 2 weeks ago
• Management rejected their concerns yesterday
• Workers are planning to stop work tomorrow morning
• Union leader says "We should follow proper procedures first"
• Workers say, "We can't wait any longer!"
Key Questions:
1. Can the workers legally strike tomorrow?
2. What steps are they missing?
3. What are the risks of striking now vs waiting?
4. Will they get paid during a strike?
18.1 The Collective Bargaining Context
• There is a natural imbalance of power between individual
employees and employers.
• This is why the right to freedom of Association is so important
• It allows employees to form and join trade unions and take part in
their activities.
• Trade unions exist mainly to help employees bargain
collectively.
• In most countries, workers have the right to go on strike to
support their demands during bargaining.
• Employers can also use lock-outs.
18.1 The Collective Bargaining Context
Why strikes and lockouts matter?
• LAC’s explanation in the Stuttafords Department Stores Ltd (2001)
case:
▪ A strike causes economic harm to the employer.
▪ This pressure can make the employer give into workers demands.
▪ A lock-out causes financial harm to employees by stopping their wages. The
goal is to make workers give in to the employer’s demands.
• What the CC said in the NUMSA v Bader Bop (2003) case:
▪ Strikes protect the dignity of workers.
▪ They are part of fair labour relations (Sec 23 Constitution)
▪ Strikes give workers bargaining power and help create a fair workplace.
18.2 The Constitution and
International Labour Standards
Constitutional Protection of the Right to Strike:
▪ In South Africa, the right to strike is enshrined in the Constitution. According to Section
23(2)(c) of the 1996 Constitution, "every worker has the right to strike."
▪ This constitutional guarantee reflects the country’s commitment to fair labour practices and
worker empowerment.
▪ The Labour Relations Act 66 of 1995 (LRA) reinforces this right, particularly in section 64,
which outlines the procedures and conditions under which strikes are legally protected.
No Constitutional Right to Lock-Out:
▪ Unlike the right to strike, the right of employers to initiate a lock-out is not
constitutionally protected. This marks a significant shift from the Interim Constitution
of 1993, which had recognized both strike and lock-out rights.
Why was the lock-out right omitted?
▪ During constitutional negotiations, labour unions argued that a strike is a necessary tool
for employees - typically the weaker party - to balance the economic power held by
employers. By contrast, a lock-out was seen as a management tactic, not a fundamental
right. As a result, the final Constitution explicitly includes only the right to strike.
18.2 The Constitution and
International Labour Standards
Certification Case: Constitutional Court Review (1996)
• Before it could take legal effect, the final Constitution had to be certified by the Constitutional Court in the landmark case
Ex parte Chairperson of the Constitutional Assembly (1996).
• Several objections were raised regarding the exclusion of the employer’s lock-out right:
Objection 1: Lack of equal economic tools for employers
• Claim: Without constitutional protection for lock-outs, employers would be disadvantaged in collective bargaining.
• Court’s response: The right to collective bargaining (also in Section 23) implies the right to exert economic pressure, including lock-outs.
• Therefore, constitutional silence does not mean prohibition.
Objection 2: Imbalance in labour relations
• Claim: Workers enjoy a constitutional strike right, but employers have no equal remedy.
• Court’s response: Collective bargaining mechanisms continue to protect employers’ interests.
• Lock-outs remain lawful under legislation, even if not constitutionally entrenched.
Objection 3: Violation of equality principles
• Claim: Strikes and lock-outs are counterparts, so equality demands both be constitutionally recognized.
• Court’s response: Strikes are fundamental to worker rights, while lock-outs are not essential for employers, who already
possess greater structural and economic power.
• Omitting the lock-out right does not breach equality.
18.2 The Constitution and
International Labour Standards
South Africa’s ILO Commitments
• South Africa has ratified two core International Labour Organization (ILO) conventions:
1. Convention 87 (1948): Freedom of Association and Protection of the Right to Organize
2. Convention 98 (1949): Right to Organize and Collective Bargaining
• These instruments form part of South Africa’s international obligations and influence
how labour rights are interpreted.
ILO Interpretation of the Right to Strike
Although neither convention explicitly mentions the right to strike, the ILO’s Freedom of
Association Committee has consistently interpreted Article 3 of Convention 87 to
include the right to strike. This position, though contested by some states, has become
widely accepted in international labour law.
Incorporation into South African Law
Section 3 of the LRA requires that the Act be interpreted in compliance with
international law, including South Africa’s ILO obligations. As a result, international
labour standards shape the domestic understanding of both strike and lock-out rights.
18.2 The Constitution and
International Labour Standards
Influence on South African Case Law
Bader Bop v NUMSA (2003)
In this case, the Constitutional Court upheld the right of a minority
union to strike for recognition. The Court relied on both the
Constitution and ILO principles to affirm that even small unions are
entitled to strike, reinforcing freedom of association.
AMCU v Chamber of Mines (2017)
The Court examined whether majority agreements could bind non-
signatory unions. ILO guidelines played a role in evaluating whether
this extension was consistent with principles of fairness and worker
representation.
18.3 The LRA’s Approach to Strikes
and Lock-Outs
18.3.1 Affirmation of the right to strike
• Section 64(1) – ‘Every employee has the right to strike and every employer
has recourse to lock-out…’
• Strikes and lock-outs are regulated in chapter 4 of the LRA.
• The LRA accepts the right to strike and the employer’s recourse to a lock-
out but provides that these are limited in the interests of the employees,
employers and public interest.
• It also seeks to maintain the balance of bargaining power between trade
unions and employers.
• The LRA use the concepts of ‘protected’ strikes and lock-outs to strike this
balance.
• The LRA also affirms the rights of employees to take certain actions in
support of a strike such as picketing and the right of employees to
participate in protest action to defend their socio-economic interests.
18.3 The LRA’s Approach to Strikes
and Lock-Outs
18.3.2 Limitation of these rights
No right granted to a person is unlimited. A right can be limited in the interests of society
generally or by competing rights of others. This is clearly illustrated by provisions in
sections 23 and 36 of the Constitution and sections 64 and 65 of the LRA.
The strike or lock-out will usually be protected if specified procedures set out in sections
64 and 65 are complied with. Additionally, section 65 prohibits strikes and lock-outs in
certain circumstances – For example employers and employees involved in the provision
of essential services may not participate in a protected strike or lock-out.
The nature of the issue in dispute may impose a limitation of a strike or a lock-out. For
example, disputes concerning the application of collective agreements or dismissals must
be referred for arbitration or the Labour Court respectively.
Natural limitations are contained in the definitions of a strike and lock-out with reference
to the concept ‘for a specified reason’.
18.3 The LRA’s Approach to Strikes
and Lock-Outs
18.3.3 Protected and unprotected lock-outs
If the requirements contained in the LRA have been complied with, the strike or lock-out is ‘protected’ in the sense that
the parties are protected against certain legal consequences which could normally result from the action.

If a strike is protected, the employer cannot, for example, claim damages from the employees or trade union for losses
incurred as a result of the strike.

The employer cannot obtain an interdict to prevent the strike and the employer cannot dismiss employees on the
ground that the participation in a strike is a breach of contract of employment.

If the strike is unprotected i.e. does not comply with requirements the employer would then be able to claim damages
or compensation. The employer could obtain an interdict to stop the strike and the employer may be able to dismiss
employees on the basis of misconduct.
If the lock-out complies with the provisions of the LRA, the employer will be protected against being sued for damages
and the employees will not be able to interdict the lock-out.
Labour law
distinguishes
between a
protected strike
and an
unprotected strike
Understanding the distinction: Impact on Employers and
Employees

Employers:
• Protected Strikes: Employers must respect the rights of employees
to engage in protected strikes and refrain from taking any
disciplinary action or dismissing employees solely on the grounds
of their participation.
• Unprotected Strikes: Employers have the right to take disciplinary
action, including dismissal, against employees engaged in an
unprotected strike, as it is considered a breach of contract.
Employees:
• Protected Strikes: Employees engaging in a protected strike can
exercise their rights without fear of dismissal, provided they adhere
to the legal requirements.
• Unprotected Strikes: Employees participating in an unprotected
strike are at risk of facing disciplinary action, including dismissal,
as their actions are not legally protected.
18.3 The LRA’s Approach to Strikes
and Lock-Outs
18.3.4 Picketing and protest action
In terms of section 69 of the LRA, employees and their supporters may
take part in protected picketing, provided that the requirements set out in
section 69 have been met (discussed later).
If industrial action is not for the purpose of remedying of grievance or
resolving a dispute in respect of a matter of mutual matter of mutual
interest, the action will not fall within the scope of the definition of a
strike.
However, section 77 of the LRA acknowledges that employees have the
right to take part in protest action provided the requirements of this
section has been met.
18.4.1 The meaning of the word
“strike”
Every employee has the right, in terms of the
Constitution of South Africa, to strike (23(2)(c)).
The definition of a strike contained in section 213 of
the Labour Relations Act, 66 of 1995 (LRA) reads as
follows –
‘… 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
purposes 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.’
Elements of the definition
In Transport & Allied Workers Union of South Africa obo Ngedle & Others v
Unitrans Fuel & Chemical(Pty) Ltd (2016) 37 ILJ 2485 (CC) the
Constitutional Court stated that this definition contains four elements, all
of which must be present for an action to constitute a strike.
They are –
1. A partial or complete concerted refusal to work or the retardation or
obstruction of work;
2. by persons who are or have been employed by the same employer or
by different employers;
3. for the purpose of remedying a grievance or resolving a dispute; and
4. In respect of a matter of mutual interest between employer and
employee.
Element 1: What constitutes
"work"?
• Work means duties employees are contractually or legally
obliged to perform.
• Work that would be illegal (e.g., violating labour laws like the
BCEA) is not considered work for strike purposes (Simba (Pty)
Ltd v FAWU).
• Overtime work counts as work, even if not contractually
required, so refusal to do overtime can be a strike.
Element 1: Types of Strike Action:
• Complete refusal to work (typical strike).
• Partial refusal to work (doing some but not all duties).
• Retardation of work (working slower than usual, e.g., go-
slow).
Element : Concerted Action
• Must involve two or more employees acting together.
• Purpose must be to resolve a grievance or dispute related to
matters of mutual interest.
Element 2: Who can Strike?
• Employees or former employees.
• Can be employees of the same or different employers.
• Includes secondary strikes (employees striking in support of
another group’s strike (primary strike)).
Element 3: Purpose of the Action
• The conduct must aim to remedy a grievance or resolve a
dispute.
Element 4: Matter of Mutual
Interest
Matter of Mutual Interest
• The issue must relate to the employment relationship—terms and
conditions, workplace issues, health and safety, job security,
dismissal, collective bargaining, etc.
• Matters outside mutual interest (e.g., purely political issues or
unlawful demands) do not constitute strikes under the LRA.
• Examples of unlawful demands:
• Collective agreements that discriminate.
• Closed shop agreements violating the LRA.
• Demands for unfair dismissal of managers.
• Demands leading to breaches of BCEA or health and safety laws.
18.4.2 The definition of a lock-out
“Lock-out” under Section 213 of the LRA: ‘means the exclusion by an
employer of employees from the employer’s 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’.

This definition consists of two elements, both of which must be present simultaneously in order to
constitute a lock-out. The action taken by the employer must fall within the definition of a lock-out
and the employer must embark on this action for a specific purpose as mentioned in the definition.
Because a single employer can institute a lock-out, the element of concerted activity need not be
present for an action to conform with the definition.
Element 1: Action Taken
• Earlier laws described a lock-out as various employer actions
(dismissal, breach of contract, refusal to rehire).
• Under the Labour Relations Act (LRA) section 213, a lock-out is
specifically the employer excluding employees from the workplace
(usually by closing entrances).
• Exclusion alone has limited impact unless accompanied by refusal
to pay employees, which breaches contract.
• The LRA permits withholding pay for employees not working
during a protected lock-out (section 67(3)).
• A lock-out must involve multiple employees; it cannot target a
single employee (Schoeman case).
Element 2: Purpose of the Action
• The exclusion aims to compel employees to accept a demand
related to any mutual interest issue between employer and
employees.
• The purpose is relevant to that of a strike.
18.5 Prohibitions on strikes and
lock-outs
Section 64 sets certain procedural requirements that have to
be met before a strike or a lock-out will be protected.
Section 65 states that strikes or lock-outs will be unprotected
in certain circumstances, even if the procedures set out in
section 64 have been followed.
 Section 65: Limitations on the
Right to Strike or Lock-Out
(1) No one may participate in a strike or lock-out, or do anything in support of or preparing for a
strike or lock-out, if:
(a) They are bound by a collective agreement that prohibits striking or locking out over the issue in dispute.
(b) They are bound by an agreement that requires the issue to be resolved through arbitration.
(c) The issue is one that the law allows a party to refer to arbitration or to the Labour Court.
(d) They are working in:
(i) An essential service, or
(ii) A maintenance service. (Essential and maintenance services are regulated under Sections 71 to 75.)
(2)
(a) Despite 65(1)(c), a strike or lock-out may still take place if the dispute is about organizational rights under
Sections 12 to 15.
(b) If a union gives notice of a strike under Section 64(1) for a dispute about organizational rights, it may not refer
the same dispute to arbitration under Section 21 for 12 months from the date of the notice.
(3) Subject to any collective agreement, a person may not participate in a strike or lock-out, or
support or prepare for one:
(a) If they are bound by:
(i) An arbitration award or a collective agreement that deals with the issue in dispute, or
(ii) A determination made by the Minister under Section 44 about the issue.
(b) If the issue is covered by a determination under Chapter Eight of the Basic Conditions of
Employment Act and it's within the first year of that determination.
18.5.1 Prohibition in a collective
agreement
Section 65(1)(a) of the LRA prohibits strikes or lockouts if a
collective agreement specifically bans such action over the
issue in dispute. These clauses, often called peace clauses,
aim to enforce stability by ensuring parties stick to agreed
terms and resolve issues without industrial action.
For example, if a collective agreement grants a 10% wage
increase and includes a clause barring strikes over any
additional monetary demands while the agreement is in
force, then a strike for a shift allowance during that time
would be prohibited under section 65(1)(a).
18.5.2 Arbitration is prescribed in
terms of an agreement
Section 65(1)(b) of the LRA prohibits strikes or lockouts if the
parties have agreed to resolve the issue through arbitration.
Once such an agreement exists, they must follow that process
and cannot use industrial action to settle the dispute.
18.5.3 Disputes that must be referred
to arbitration or the Labour Court
Section 65(1)(c) of the LRA prohibits strikes or lockouts where a dispute
can be resolved through arbitration or by the Labour Court. This applies to
disputes such as unfair dismissals, unfair labour practices, discrimination,
or the interpretation of collective agreements. These are considered legal
rights disputes and must follow formal legal processes.
There are two key exceptions:
[Link] rights disputes – Employees may choose to strike
instead of referring the matter to arbitration. The Bader Bop case
confirmed that even less representative unions can strike for these
rights. However, strikes over disclosure of information are excluded.
[Link] requirements dismissals – Under section 189A, employees
may strike in response to retrenchments due to operational needs,
provided specific legal requirements are met.
18.5.4 Essential and maintenance
services
• Employees who work in essential or maintenance services are
not allowed to strike, as stated in section 65(1)(d) of the LRA.
• This is because these services are considered crucial for the
well-being of society or the ongoing operations of the
employer.
• Similarly, employers in these sectors are not permitted to lock
out employees to force compliance with their demands.
“Essential service” means -
a) A service the interruption of which endangers the life,
personal safety or health of the whole or any part of the
population;
b) the Parliamentary service;
c) the South African Police Services’
Essential services continued:
Section 70 of the Labour Relations Act (LRA) — Essential Services Committee (ESC)
Purpose:
The ESC is established to determine which services qualify as essential services.
Role:
The ESC designates services that are essential, meaning they require continuous operation and cannot be interrupted
by strikes or lock-outs to protect public safety, health, and welfare.
Examples of Essential Services Designated by the ESC:
✓ Regulation and control of air traffic
✓ The Weather Bureau (supporting air traffic control)
✓ Municipal traffic services and policing
✓ Municipal health services
✓ Municipal security services
✓ Supply and distribution of water
✓ Generation, transmission, and distribution of power
✓ Fire-fighting services
✓ Certain health services
✓ Blood transfusion services (South African Blood Transfusion Service)
Maintenance services
Section 75(1) of the LRA —
A maintenance service is considered essential if interrupting
that service would likely cause material physical destruction to:
• Any working area,
• Plant,
• Or machinery.
This means maintenance services critical to preventing physical
damage cannot be legally stopped by strike action.
Designation of Maintenance
Services
• By Collective Agreement:
Employers and trade unions can agree that certain services
are maintenance services.
• By ESC Determination:
If no collective agreement exists, an employer may apply to
the Essential Services Committee (ESC) to designate a service
or part of the business as a maintenance service.
Legal Implications of Maintenance
services
• Employees performing maintenance services may NOT strike
and may NOT be locked out.
• These employees must continue to provide maintenance
services even during a strike by the rest of the workforce.
• Terms and conditions for these employees are set by
collective bargaining or arbitration.
• Employers cannot use replacement labour for designated
maintenance services during a strike.
Dispute Resolution in Essential
Services (Section 74 of the LRA)
Step 1: If a dispute arises, it must first be referred to the
relevant bargaining/statutory council for conciliation.
Step 2: If no council exists, the dispute goes to the Commission
for Conciliation, Mediation and Arbitration (CCMA).
Step 3: If conciliation fails, either party can request arbitration
by the council or CCMA.
The arbitration award is binding on both parties.
18.5.5 An award or a collective agreement
regulates the issue in dispute
Section 65(3)(a)(i) of the LRA — Prohibitions on Strikes and
Lock-outs
No strike or lock-out is permitted if the issue in dispute:
• Is regulated by a binding arbitration award, unless otherwise
agreed in a collective agreement.
• Is regulated by a collective agreement.
Reason for the Prohibition:
Once an issue has been settled through arbitration or collective
agreement, it is final and binding.
18.5.6 The issue in dispute is
regulated by a determination
Further Prohibitions on Strikes and Lock-outs (Section 65 of the LRA)
Section 65(3)(a)(ii):
• No strike or lock-out is allowed if the issue in dispute is regulated by a binding
determination made by the Minister under Section 44 of the LRA, unless otherwise
agreed in a collective agreement.
• These determinations come from statutory councils and are binding on employers and
employees within their jurisdiction.
Section 65(3)(b):
• A person may not strike or initiate a lock-out if the issue is regulated by a sectoral
determination under Chapter 8 of the BCEA,
unless otherwise agreed in a collective agreement.
• This restriction applies only during the first year of the sectoral determination.
• Sectoral determinations set minimum employment conditions in sectors with limited
collective bargaining.
18.5.7 The existence of a dispute
• Courts have held that for a strike or lock-out to be protected, there must be an actual
dispute in existence at the time the action begins.
• If the employer has already conceded to the demand or the issue has been resolved
(e.g., through a collective agreement), there is no dispute, and thus the strike will not
be protected.
Key Case Law:
[Link] & Allied Workers Union of SA obo Ngedle & Others v Unitrans Fuel &
Chemical (Pty) Ltd (2016) 37 ILJ 2485 (CC)
Constitutional Court confirmed that a strike is not protected if no live dispute exists.
[Link] Rail Agency of SA v SA Transport & Allied Workers Union & Others (2012)
33 ILJ 2659 (LC)
Labour Court emphasized that a resolved issue cannot be the basis of a protected strike.
[Link] & Others v Hendor Mining Supplies (2007) 28 ILJ 1278 (LC)
Strike found to be unprotected because the dispute had been resolved through a collective
agreement.
The Procedural
Requirements
18.6.1 Referral of the dispute to
conciliation
Section 64(1) LRA – Referral and Conciliation:
• A dispute must be referred to a bargaining council or the CCMA for conciliation.
• Conciliation should occur within 30 days if successfully resolved – the dispute falls
away once an agreement is reached.
• If unresolved, a certificate is issued or if the 30-day period lapses, after which
strike/lock-out notice can be given.
Same Dispute Requirement:
• The strike must relate to the same issue referred for conciliation.
• Vague referrals can complicate this the courts focus on substance, not technicalities.
• Key Case:
Edelweiss Glass (2011) – A strike may lose protection if new demands are used to push
unrelated objectives.
18.6.2 Prior notice
Timing of Notice:
• Section 64(1)(b) & (c) of the LRA requires at least 48 hours’ written notice before a strike or lock-out begins.
• If the State is the employer, the required notice is 7 days (section 64(1)(d)).
• Long delays (e.g., a year) may make the dispute stale (Western Platinum), but not always (Public Servants
Association).
• Notices sent knowing they won't be seen in time are invalid (Swartland Investments).
Who Must Receive the Notice:
• Strikes: Notice goes to the employer, unless the dispute is in a bargaining/statutory council then notice goes to
the council.
• If the employer is in an employers’ organization, notice is given to that organization.
• Lock-outs: Notice goes to the union, or if none, to the employees. If the issue relates to a bargaining council
agreement, notice goes to the council.
Content of Notice:
• The LRA does not specify exact contents
• only that it must be in writing.
• Courts have dealt with whether notices lacking specifics (e.g., exact time) are valid.
18.6.2 Prior notice
Who May Strike
• All union members can strike including:
• Those not in the bargaining unit.
• Those at other locations.
• Non-union members (if the union is the recognized bargaining agent).
Moloto (2012) – Constitutional Court Ruling
• Only one strike notice is needed.
• No need to specify exact times.
• Grasshopper strikes (short, repeated) don't need new notices.
• The goal: fair warning and orderly bargaining.
18.6.3 Refusal to bargain disputes
Section 64(2) LRA — Refusal to Bargain Includes:
• Refusing to recognize a trade union as a collective bargaining
agent.
• Refusing to agree to establish a bargaining council.
• Withdrawing recognition of a collective bargaining agent.
• Resigning from a bargaining council.
• Disputes over appropriate bargaining units, levels, or
subjects.
18.6.3 Refusal to bargain disputes
• Such disputes must first go to conciliation.
• If conciliation fails, the dispute is referred to advisory
arbitration (Section 135(3)(c)).
• The arbitration issues an advisory award suggesting how to
resolve the dispute.
• The award is not binding but usually influences the parties
because ignoring it may cause industrial relations problems.
• If either party rejects the advisory award, they may give
notice to start a strike or lock-out under Section 64(1)(b) or
(c).
18.6.4 Strikes and operational
requirements dismissals
• Section 189A LRA is referred to here.
• Normally, dismissal disputes cannot be resolved by strike; they go to arbitration or
Labour Court.
• Exception: Employees can strike over substantive fairness of retrenchments if employer
has 50+ employees and plans large-scale dismissals.
• Strike only covers substantive fairness; procedural fairness has a separate process.
• If employees strike, they forfeit the right to later challenge substantive fairness in
court/arbitration.
• Employer or union can request a CCMA facilitator during retrenchment consultation.
• After 60 days from retrenchment notice, employer may terminate, and employees can
give 48 hours’ strike notice.
• Without facilitation, after 30 days consultation + 30 days conciliation, employer may
terminate, and employees can strike with 48 hours’ notice.
18.6.5 When the section 64 procedures
need not be complied with
• Parties in a bargaining council can resolve disputes according to the
council’s constitution instead of following section 64(1) procedures.
• Employers and unions can agree on alternative dispute resolution
procedures before strikes/lock-outs; complying with these agreed
procedures makes the action protected, bypassing section 64(1).
• Courts have differed, but BMW SA v NUMSA (2012) held that if an
agreed procedure exists, it must be followed, and statutory
procedures cannot be used instead.
• If an employer initiates an unprotected lock-out, employees may
strike without complying with section 64; similarly, an unprotected
strike allows an employer to respond with an automatically protected
lock-out.
18.6.5 When the section 64 procedures
need not be complied with
Unilateral Changes to Terms and Conditions (Section 64(4) & (5))
• If an employer unilaterally changes employment terms or intends to do so,
employees/unions may refer the dispute to the CCMA or council for
conciliation.
• Upon referral, employees/unions can require the employer to maintain or
restore the original terms within 48 hours.
• Employer must keep the status quo for 30 days while conciliation takes place.
• If the employer ignores this, employees can embark on a protected strike and
may seek an interdict.
• Once the union has acquired the right to strike (after conciliation or 30 days),
the employer gains the right to lock-out without a new dispute referral, by
giving proper notice.
18.7 Secondary strikes

Thi s Photo by Unknown Author i s l icensed under CC BY

18.7 The definition of a secondary
strike
Definition of Secondary Strike according to Section 66(1) LRA):
• A secondary strike occurs when employees of one employer (the
secondary employer) strike in support of a strike by employees of a
different employer (the primary employer).
• The secondary employer’s employees are not in dispute with their
own employer but take action to pressure their employer in support
of demands against the primary employer.
• However, this does not include strikes by employees who have a
material interest in a demand referred to a bargaining council that
covers their employer (even if it affects multiple employers on the
council).
18.7.2 Requirements for a
protected secondary strike
Secondary strikes (LRA s66):
• Must be in support of a protected primary strike (s66(2)(a)).
• 7 days’ written notice required to secondary employer (14 days if
linked to operational dismissals, s189A).
• Strike must be reasonable and proportional to the effect on the
primary vs. secondary employer (s66(2)(c)).
• Labour Court can interdict unprotected secondary strikes; may use
CCMA investigation (s66(3), (4)).
• Case: Association of Mineworkers v Anglo Gold Ashanti (2022) -
confirmed proportionality and reasonableness as key tests for
secondary strikes.
 18.8 Legal consequences of
protected strikes and lock-outs
18.8.1 Protection against civil liability
• Strikes aim to pressure employers economically, but common law viewed them as unlawful, allowing employers to sue or seek court orders.
The LRA’s Section 67 protects participants in protected strikes or lock-outs from civil claims and interdicts, unless criminal acts occur.
• However, in Massmart Holdings Ltd v SACCAWU (2022), the Labour Court held employers can claim “just and equitable compensation” for
losses caused by actions in contemplation or furtherance of a protected strike.

Dismissal based on misconduct:

• Employees who commit serious misconduct (like violence, intimidation, or property damage) during a protected strike can be fairly
dismissed.
• The Labour Appeal Court confirmed that employers do not need to wait until the strike ends to take disciplinary action.
• As long as the dismissal process is fair and follows legal procedures, misconduct during a protected strike can lead to dismissal.
• The law protects the right to strike but does not shield employees from consequences of unacceptable behavior during a strike.
18.8 Legal consequences of
protected strikes and lock-outs
Dismissal based on operational requirements:
• Strikes put pressure on employers, but the law allows employers to
dismiss workers if the strike threatens the business’s survival.
• This is controversial because it could weaken the right to strike if
misused.
• Courts must decide carefully whether the reason for dismissal is real or
just an excuse to get rid of strikers.
• In most cases, employers must follow a 60-day consultation process
before they can legally dismiss workers for operational reasons.
18.8.2 Protection against dismissal
• Employees who strike usually breach their contract, allowing
dismissal under common law. However, the LRA protects
employees from dismissal for participating in a protected
strike (sections 67(4) and 187(1)(a)); such dismissals are
automatically unfair.
• This protection is limited: employees can still be dismissed for
misconduct during the strike or due to the employer’s
operational requirements (section 67(5)).
18.8 Legal consequences of
protected strikes and lock-outs
18.8.3 Payment of remuneration
• The principle of "no work, no pay" applies during strikes and lock-outs, meaning employees are
not entitled to wages when not working, including during go-slows. This is based on common law
and confirmed by section 67(3) of the LRA, which also applies to lock-outs.
• An exception exists for protected strikes or lock-outs: if employees receive payment in kind (e.g.,
food, accommodation), the employer must continue providing it if requested but may later
recover its value through legal action in the Labour Court.
18.8.4 Protection against discrimination
• Employers sometimes offer bonuses to non-strikers during strikes, which may violate section 5 of
the LRA by discriminating against strikers for exercising their rights. Courts in earlier cases found
such payments unlawful as they undermine collective bargaining.
• However, in Cullinan Diamond Mine, the Labour Appeal Court ruled that bonuses for non-strikers
could be justified if they reward exceptional performance and are a proportional response to the
strike. This is not blanket permission - each case depends on its context. Dismissing non-strikers
for refusing to do strikers’ work is automatically unfair, unless the work prevents danger to life or
safety.
18.9 Legal consequences of
unprotected strikes and lock-outs
18.9.1 Interdicts and compensation
• If a strike or lock-out is unprotected under sections 64 and 65 of the LRA, the Labour Court can
issue an interdict to stop the action and may also award "just and equitable" compensation for
losses suffered.
• In deciding whether to grant compensation, the court considers factors like efforts to comply
with the law, whether the action was premeditated or provoked, compliance with previous court
orders, the duration of the strike, and the financial standing of the parties involved. T
• he compensation awarded doesn't necessarily match the full loss suffered but must be fair under
the circumstances.
• In Algoa Bus Co v TAWU, the court ordered the union and its members to pay over R1.4 million in
compensation after a seven-day unprotected strike that continued despite an interdict. The
union had failed to stop the strike and was aware of its illegality. In contrast, in Polyoak
Packaging and New Kleinfontein Goldmine cases, the court denied compensation claims,
emphasizing the importance of constitutional rights, the employer’s duty to mitigate losses, and
the potential financial harm to unions. These decisions show that while compensation is
available, courts apply it cautiously to avoid undermining the right to strike or crippling unions.
18.9 Legal consequences of
unprotected strikes and lock-outs
18.9.2 The dismissal of strikers
Under section 68(5) of the LRA, participation in an unprotected strike may justify dismissal. However, dismissal must
still be substantively and procedurally fair in terms of the Code of Good Practice: Dismissal (Schedule 8).
Substantive fairness
Substantive fairness depends on factors such as the seriousness of the breach, attempts to comply with legal
procedures, and whether the strike was provoked by the employer. Courts also consider additional factors like the
duration of the strike, harm to the employer, legitimacy of demands, and consistency in disciplinary action. Dismissal is
less likely to be fair where non-compliance was minor, or employees believed the strike was protected.
Procedural fairness
requires the employer to engage with the union before dismissal, including issuing a clear ultimatum that allows time
for reflection. If workers comply with the ultimatum, they are generally protected from dismissal unless the employer
has expressly reserved the right to act. A fair process must still be followed even if the strike has ended. Employers
must also apply their disciplinary codes and may need to hear individual or collective representations before deciding
to dismiss.
18.10 The use of replacement
labour
• Employers may use replacement labour during a protected
strike unless the business or part of it is designated as a
maintenance service.
• Replacement labour is allowed during a lock-out only if the
lock-out responds to a strike.
• Case: Technikon SA v NUMESA (2001) this case confirmed
replacement labour is permitted during lock-outs responding
to strikes.
• Employers cannot use temporary agencies or outside
contractors as replacement labour when prohibited.
18.11.1 What is a picket?
• Peaceful conduct in support of a protected strike or
opposition to a lock-out.
• Most important action linked to strike/lock-out furtherance.
18.11.2 The legal framework for
the regulation of picketing
• Common law opposes picketing with civil remedies (e.g.
interdict) for employers.
• Constitution protects peaceful assembly, expression, and
association (Sections 16 & 18).
• LRA allows protected picketing if compliant with its rules.
18.11.3 Protected pickets
• Must be authorized by a registered trade union.
• Can involve union members and supporters (including non-
members/public).
• Purpose: peacefully support a protected strike or oppose a
lock-out.
• Picketing for unprotected strikes is not protected; opposition
to lock-outs is protected regardless.
The nature of picketing and where
it may take place
Conduct and Location of Picketing
• Must be peaceful, unarmed, lawful (e.g., no intimidation, violence, masks, or
weapons).
• Allowed outside employer premises or inside with employer’s permission
(permission cannot be unreasonably withheld).
Picketing Rules
• Negotiated in collective agreements or determined by conciliators if no
agreement exists.
• No picketing allowed without agreed or determined rules.
• Conciliator can authorize picketing on employer premises if permission is
unreasonably withheld.
• Applies also to picketing in public places owned by third parties (e.g.,
shopping malls).
The nature of picketing and where
it may take place
Protection and Enforcement
• Lawful pickets are protected from dismissal and civil claims.
• Employers may discipline employees who violate picketing rules or
commit criminal acts.
Breaches and Disputes
• Disputes about picketing rights or breaches can be referred to the
CCMA and Labour Court.
• Labour Court can grant urgent interim relief to enforce or vary
picketing rules or suspend pickets.
18.12 Strike violence
Growing concerns about violence during prolonged strikes prompted discussions at NEDLAC. Employers proposed mandatory secret
ballots before strikes to reduce violence, but unions opposed this, and the proposals were not adopted.
Instead, three key agreements were reached:
1. Collective Bargaining Code:
Aims to improve dispute resolution and reduce strikes by providing detailed guidelines for collective bargaining and picketing conduct.
2. Balloting Requirements (effective 2019):
Trade unions and employers’ organisations must include secret ballot provisions in their constitutions before calling a strike or lock-
out. However, failure to hold a ballot does not affect the legality or protection of a strike (Section 67(7) LRA). Members cannot be
disciplined for refusing to strike if no ballot was held or if the majority voted against striking.
3. Advisory Arbitration Panels (AAPs):
Established under Sections 150A-D of the LRA (from 2019), AAPs may be appointed by the CCMA director, Minister, Labour Court, or
dispute parties in certain circumstances, such as prolonged strikes, threats of violence, or significant social/economic disruption.
4. An AAP consists of a senior commissioner and two assessors (appointed by employer and union). The panel issues an advisory award
within seven days, recommending dispute resolution.
5. The award is binding only if accepted or deemed accepted by parties; otherwise, the strike continues. The Labour Court may order an
AAP on application by affected third parties, including employees or communities impacted by strike violence.
Activity:
• Define the following
• Strike
• Secondary strike
• Picket
• Lock-out
Activity
• Distinguish between a protected and an unprotected strike.
What are the legal consequences of both?
• What is a maintenance service?
• What is an essential service?
• Attempt Practice quizzes on myLMS
Protest action and dispute resolution
(CH19 & 21)

Thi s Photo by Unknown Author i s l icensed under CC BY-ND

 Protest Action
19.1 The right to protest
• Up to now the discussion has focused on the rights of employees and
their unions to associate, to bargain collectively and to strike.- This are
all rights primarily concerned with the employment or occupational
sphere.
• Now the focus shifts to whether trade unions and their members can
take the equivalent of strike action in support of a demand that they
have in this sphere. If they do, how far does the right extend?
• Answer: The LRA regulates “protest action” in s77. It grants employees
(excludes essential and maintenance services) the to participate in
protest action where such action is instituted to promote or defend the
socio-economic interests of workers
▪ Provided that the requirements in the section (protected).
▪ If requirements are met then such action will be protected and workers participating in such
action will enjoy the same protections as those conferred ito s67 of the LRA- same as
employees who engage in protected strikes.
19.2 The nature of protest action
• Defined in s213 of the LRA:
“…the partial or complete concerted refusal to work, or the retardation or
obstruction of work, for the purpose of promoting or defending the socio-
economic interests of workers, but not for a purpose referred to in the definition
of a strike.”
• The types of action that would constitute PA are the same as those found in the
definition of a strike. The significant difference relates to the PURPOSE of the
action as it MUST be to promote or defend socio-economic interests of
workers.
• What constitutes “socio-economic” interests is not defined. See Government of
the Western Cape Province v Congress SA Trade Unions & Another and
Congress of SA Trade Unions & Another V Business Unity of SA & Another
• Distinction between socio-economic interests of workers and purely economic
ones.
19.3 Procedural requirements for
protected protest action
• Protest action may have profound economic and social impact
on the general public and the national economy. Therefore
s77 of the LRA regulates the manner in which protest action is
to be instituted.
• S77 Prescribes the procedure in a particular sequence to be
followed PRIOR to instituting protest action.

• Procedure described in next slide

 S77
Every employee who is not engaged in an essential service or a maintenance service has the right to
take part in protest action if—

(a) the protest action has been called by a registered trade union or federation of trade
unions;

(b) the registered trade union or federation of trade unions has served a notice on NEDLAC
stating—

(i) the reasons for the protest action; and

(ii) the nature of the protest action;

(c) the matter giving rise to the intended protest action has been considered by NEDLAC or
any other appropriate forum in which the parties concerned are able to participate in
order to resolve the matter; and

(d) at least 14 days before the commencement of the protest action, the registered trade
union or federation of trade unions has served a no6tice on NEDLAC of its intention to
proceed with the protest action.
S77 Procedure for protected
protest action continued..
• Activity: Discuss (1) the effect of compliance with the above
prescribed procedure and (2) the effect of non-compliance on
the protection against unfair dismissal.
Answer to activity
• (1). See s77(2) of LRA
• (2). See s77(4) of LRA
DISPUTE RESOLUTION
• The LRA distinguishes between four subcategories of disputes, being:
• Disputes that can be decided through Arbitration.
• Disputes that can be decided by a Court.
• Disputes that must be resolved by the exercise of economic action
(industrial action-strikes or lockouts).
• Alternative dispute resolution, (ADR), for instance conciliation and
arbitration, is often regarded as a better option than the more conventional
mechanisms for the settlement of labour disputes, because of the lower
cost and greater speed involved. Because it normally requires the consent,
and thus the commitment, of the parties involved, it has the potential of
presenting a more successful and sustainable solution to labour disputes.
Contracts of employment often provide for ADR.
• The statutory dispute resolution process requires that all disputes first
be referred to the CCMA or a bargaining council for conciliation. Only
after a failed attempt at conciliation or expiry of the time limits
prescribed for conciliation may disputants opt for the next level of
dispute resolution.
• The Labour Relations Act 66 of 1995 provides 3 broad further avenues in
terms of which the disputes may be resolved:

>Industrial Action
>CCMA (Commission for Conciliation Mediation and Arbitration) or
bargaining council for arbitration.
>Labour court
 3 Broader Avenues elaborated
• Industrial Action:
Parties can resort to industrial action in respect of disputes about
matters of mutual interest that are neither arbitrable justiciable.
• CCMA or Bargaining Council:
Uncomplicated individual disputes, including individual unfair
dismissal etc. are referred to the Commission for Conciliation
Mediation and Arbitration or bargaining council for arbitration.
• Labour court:
complex disputes, which include disputes in respect of automatically
unfair dismissals, unfair discrimination etc. is referred to the Labour
Court for adjudication.
 Informal Resolution (Internal Grievance Procedure)
│
└──── Resolved
│
▼
Referral to the CCMA (Commission for Conciliation, Mediation & Arbitration)
│
[Within 30 days of dispute]
│
▼
Conciliation (within 30 days of referral)
│
└──── Settled
│
▼
Certificate of Outcome Issued
(Unresolved Dispute)
│
▼
Depending on Dispute Type:
┌────────────┬────────────┐
▼ ▼ ▼
Dismissal Unfair Labour Other Disputes
Disputes Practice (e.g. Interpretation)
│
▼
Arbitration by CCMA or Bargaining Council
│
└──── Final & Binding Award
│
▼
If Dispute Requires Adjudication:
(Strike, Picketing, Large-scale)
▼
Labour Court
│
▼
Labour Appeal Court
│
▼
Constitutional Court (if necessary)