PEMA5122 LU 8 Strikes, Lockouts, Picketing PDF

PEMA5122 Learning Unit 8 – Strikes, Lockouts and Picketing (READ PAGE 29 OF THE MO) Theme 1 – Strikes PM: Chapters 15, 16, & 17  LO1: Discuss the Constitutional right to strike.  It is a worker’s Constitutional right to strike and such right has been reco...

PEMA5122 Learning Unit 8 – Strikes, Lockouts and Picketing (READ PAGE 29 OF THE MO) Theme 1 – Strikes PM: Chapters 15, 16, & 17  LO1: Discuss the Constitutional right to strike.  It is a worker’s Constitutional right to strike and such right has been recognized by the LRA in section 64(1).  In the LRA however it also provides employers the recourse of a lock out, unlike the Constitution  The employee’s right to strike is strictly protected as a Constitutional right which is necessary considering the power imbalance in employment relationships in favour of the employer to give the employee some favour according to the law  p221  LO2: Differentiate between the following three categories of strikes as classified in the LRA, namely: Protected strikes  Read from p235  The LRA makes provision for a protected strike, a right exercised by the employees which was previously known as a legal strike  The protection resulting from a legal strike are listed below:  No breach of contract  Strike cannot be interdicted (see elements of interdict in your additional research)  Not liable for compensation as a result of work stoppage  Cannot be dismissed unless – misconduct during strike & prolong strike results in dismissal based on operational reasons  Requirements for protection of strike (non-compliance = unprotected strike):  Action should comply with definition of strike (section 213) page 222  LRA prohibitions/limits apply to strike – page 226  Strike should comply with procedural requirements – page 231  LO2: Differentiate between the following three categories of strikes as classified in the LRA, namely: Unprotected strikes  If employees do not meet the requirements for a protected strike such non-compliance will mean they are partaking in an unprotected strike  Once it has been established that a strike is unprotected, the strike may have the following consequences:  Interdict may be granted  Compensation claims may be successful  Employees may be fairly dismissed  p238  LO2: Differentiate between the following three categories of strikes as classified in the LRA, namely: Prohibited strikes  There are circumstances that call for the absolute prohibition on strikes by employees  See section 65  If employees proceed with such strike, it will be an unprotected strike regardless of section 64 procedure being followed  See instances where striking is prohibited p226:  Prohibition by collective agreement – barring certain issues for period of collective agreement  Prohibition by agreement due to prior consent – arbitration  If parties have right to refer dispute to arbitration or Labour Court (“rights dispute”) – see 2 exceptions on p 227  Employees are essential/maintenance workers  Award/collective agreement regulates dispute  Issue regulated by a determination – ministerial or sectoral  LO3: Discuss the definition of a strike as provided for in s 213 of the LRA, with reference to the separate elements contained therein  The four aspects of the definition are:  Refusal  Work  Concerted action; and  Stoppage for specific purpose like grievance or dispute resolution of mutual interest LO4: Discuss the procedure that must be followed for protected industrial action  1. Hold a secret ballot prior to the strike as per trade union constitution rules – record kept for 3 years  -see Air Chefs case, no ballot = strike can be interdicted  2. Matter will be referred to BC/CCMA for conciliation – resolve within 30 days > if no agreement, conciliator certificate > union/employee give notice to strike (48 hrs written notice / 7 days if state is employer)  See Ceramic Industries + Western Platinum p232  When procedure will not be required: page 233  LO5: Differentiate between the consequences of a protected and an unprotected strike  Once it has been established that a strike is protected, the strike may have the following consequences p236:  Protection against dismissal  Protection against delictual/civil liability  Protection against discrimination  Protection against employer’s claims for compensation  No remuneration + permitted replacement labour  Once it has been established that a strike is unprotected, the strike may have the following consequences p238:  Interdict may be granted  Compensation claims may be successful  Employees may be fairly dismissed LO6: Apply the legal principles relating to strikes to a set of facts  Make sure to take note of the examples and case law cited to really understand the practicality of the legal principles relating to strikes  PEMA5122 Learning Unit 8 – Strikes, Lockouts and Picketing Theme 2 – Pickets and Protests in the Workplace PM: Chapters 15, 16, & 17 LO7: Differentiate between the different types of industrial action  See section 17 of the Constitution  Picket  Picketing is about employees publicising their demands from the employer for the purpose of gaining support, this can also be directed at their non-striking co-workers, customers/suppliers of the employer  See the Code: Collective Bargaining p242  Protected picketing: comply with definition/purpose + section 69 procedure – page 243  See legal consequences on page 247  Protest action  In the past “stay-aways” were used to bring about political change, this action can be compared to such action in an employment context – see 213 LRA  Protest action draws attention to issues that affect the wider economy or society – such as VAT increase or unemployment rate  Purpose of strike: address mattes of mutual interest, ee/er.  Purpose of protest: promote or defend socio economic interest of workers  See requirements, protection and legal consequences pages 248 + 249  Strike – revisit theme 1 to effectively draw comparison between the three LO8: Identify the different types of industrial action from a set of facts namely: Secondary strikes  See the illustration of a secondary (sympathy) strike on page 233  The essence of the strike is that other TU (employees) strike in a matter that is not of direct interest but their support action may have influence on the outcome  Requirements  Primary strike (supported strike) should be protected  Secondary strikers (supporting strike) should notify employer 7 days prior (14 days state employer or strike for dismissal for operational reasons)  Harm to secondary employer should not exceed what is required to make impact – proportionality principle  LO8: Identify the different types of industrial action from a set of facts namely: Picketing  Read from p242 to 247 and ensure that you are able to identify picketing  LO8: Identify the different types of industrial action from a set of facts namely: Lockouts  Requirements p225 - employer exclude employees from workplace - for the purpose of compelling employees to accept demand regarding mutual interest  No work, no pay principle applies  See prohibitions on lockouts (same as strikes) p226:  Prohibition by collective agreement – barring certain issues for period of collective agreement  Prohibition by agreement due to consent to prior arbitration  If parties have right to refer dispute to arbitration or Labour Court (“rights dispute”) – see 2 exceptions on p 227  Employees are essential/maintenance workers  Award/collective agreement regulates dispute  Issue regulated by a determination – ministerial or sectoral  Exception 1 and 2 p227