“Wildcat” and “protected” strikes – the rules, and the risks.
The constitutional right of employees to strike is a fundamental one, limited only by the requirements of our labour laws.
Both employees and employers need to be clear on when strikes are “protected”, and when they aren’t. The risks of not understanding the law, and/or of not complying with it, are substantial.
In broad terms:
A strike that complies with the requirements of the LRA (Labour Relations Act) is “protected” by law, in which case any dismissal of strikers will be “automatically unfair”.
An “unprotected” or “wildcat” strike is one that does not comply with the LRA, in which case participation amounts to misconduct which could result in dismissal.
The requirements of the LRA in regard to strikes are many and complicated so it is essential to take proper advice in each specific case. But given the current rash of both protected and wildcat strikes in South Africa, two aspects bear particular mention:
One of the steps which employees must follow is to give 48 hours’ notice of an impending strike, either personally or through a representative (normally a trade union). With new minority unions in the media spotlight recently, the question arises – what happens where more than one union has members in a workplace? Must each of those unions, and each non-union employee, individually issue a separate strike notice? The Constitutional Court answered that question recently in a matter where a strike notice had been issued by a majority union (which was in this case also the recognised bargaining agent for all employees), the Court holding that the strike notice, although issued only by the one union, was enough to protect all employees, including non-members.
Even “protected” strikers must act lawfully and peacefully. Violence, intimidation, or destruction of property risks criminal prosecution, disciplinary action and liability for damage caused. Unions themselves risk liability for “riot” damage in certain circumstances, so member discipline is essential for them.