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Study Guide LLW2602 study guide & notes
Collective Labour Law (University of South Africa)
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Tutorial Letter 501/3/2020
COLLECTIVE LABOUR LAW
LLW2602
Semesters 1 and 2
Name of Department
This tutorial letter contains important information
about your module.
BARCODE
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CONTENTS
A.
GENERAL INFORMATION
1.
Introduction
2.
The prescribed book
3.
Overview of the prescribed book
B.
STUDY UNITS
STUDY UNIT 1
: Freedom of association, trade unions’ rights and employers’ rights
STUDY UNIT 2
: Collective bargaining
STUDY UNIT 3
: Workplace forums
STUDY UNIT 4
: Strikes and lock-outs
STUDY UNIT 5
: Pickets and protest action
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A. GENERAL INFORMATION
Dear Student
1. INTRODUCTION
Welcome to the Labour Law module (LLW2602). We hope that you will find it interesting and
rewarding. We will do our best to make your studies of this module successful. Please note
that this learning material only provides guidance to assist you go through and understand
your prescribed book. You will therefore still be required to have and study your prescribed
book.
2. THE PRESCRIBED BOOK
The prescribed book for this module is:
McGregor, M and Dekker, AH (eds). 2017. Labour law rules! 3rd. Cape Town: Siber Ink.
You have to purchase the prescribed book and work through it with the help of this tutorial
letter.
Please take note that only the following chapters of the prescribed book are prescribed
for this module: Chapters 11; 12; 13; 14 and 15.
3. OVERVIEW OF THE PRESCRIBED BOOK
The prescribed book consists of four parts:
Part
Part
Part
Part
I
II
III
IV
:
:
:
:
Introduction to labour law
Rules applicable during the course of employment
Rules applicable to the termination of the employment relationship
Rules applicable to collective labour law
PART I: INTRODUCTION TO LABOUR LAW
Labour law deals with the legal consequences that flow from the employment relationship. It
regulates both the individual and collective employment relationship. The individual
employment relationship is concluded between one employer and one employee. The
collective relationship exists between one or more employers and more than one employee.
Employers may act collectively by way of employers’ organisations and employees may join
trade unions that represent them in the collective labour arena.
It is important to understand that the contract of employment forms the basis of the
relationship between the employer and the employee and that the principles of law of
contract therefore apply to this relationship. Law of contract assumes that the parties to a
contract are in an equal bargaining position. However, the employment contract is different
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because the employer is in a stronger bargaining position and can largely dictate the terms
and conditions of employment. Hence, the principles of law of contract had to be
supplemented by labour laws designed to balance the interests of employees and employers
in order to ensure fairness in the employment relationship.
Part I of the prescribed book consists of only one chapter (chapter 1), which gives a brief
historical background to South African labour law and contrasts it with modern labour law.
The tripartite manner of currently making labour laws and the scope of labour laws are
explained.
PART II: RULES APPLICABLE DURING THE COURSE OF EMPLOYMENT
This part of the prescribed book concerns the legal requirements with regard to the
following:









concluding a valid contract
the effect of certain terms in the contract of employment, for example a “restraint of
trade clause”
the minimum terms and conditions of employment
the rights and duties of employers and employees that flow from the contract
the consequences that flow from common law and their effect on the contractual
relationship, for example the doctrine of vicarious liability
the potential and compulsory deductions that must be made from employees’ salaries
relating to social protection laws, for example insurance against unemployment and
medical aid and pension fund contributions
the compulsory contribution of the employer in terms of social protection legislation, for
example in terms of the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (COIDA) and the Skills Development Act 97 of 1998 (SDA)
the circumstances in which terms and conditions of employment can be changed, and
acts (or omissions) of the employer that will be regarded as unfair labour practices
Part II consists of six chapters.





Chapter 2 deals with the exclusive protection of employees provided by labour laws. The
tests used to determine the difference between an employee and an independent
contractor are discussed.
Chapter 3 is about the impact of common law on the contractual agreement between the
parties. Both law of contract and common law are sources for determining the rights and
duties of employers and employees that flow from the employment relationship.
Chapter 4 is about the Basic Conditions of Employment Act 75 of 1997 (BCEA), which
mainly regulates minimum terms and conditions of employment.
The focus of chapter 5 is on the Employment Equity Act 55 of 1998 (EEA), which prohibits
unfair discrimination in the workplace and regulates the implementation of affirmative
action measures.
The Labour Relations Act 66 of 1995 (LRA) is discussed in chapter 6, but only as far as
unfair labour practices (unfair acts or omissions by an employer against an individual
employee) are concerned. Unfair labour practices are discussed separately from dismissal
because they occur during actual employment.
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
In chapter 7, social insurance legislation is discussed. The focus of this chapter is on social
insurance matters that influence the employment relationship. The chapter is divided into
discussions on social insurance legislation aimed at:
 the prevention of occupational injuries and diseases (in terms of the Occupational
Health and Safety Act 85 of 1993 [OHSA] and the Mine Health and Safety Act 29 of 1996
[MHSA]),
 compensation for employees who have suffered occupational injuries/contracted
diseases or lost employment (COIDA, Occupational Diseases in Mines and Works Act 78
of 1973 [ODMWA] and Unemployment Insurance Act 63 of 2001 [UIA]) and
 the re-integration of employees into the workplace after an injury or illness (SDA and
Skills Development Levies Act 9 of 1999 [SDLA]).
 In Chapter 8, the transfer of a business as a going concern, is discussed.
PART III: RULES APPLICABLE TO THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP
In this part of the prescribed book, the different ways of terminating the contract of
employment are explained. The less confrontational ways (such as resignation, retirement,
death and insolvency) are briefly discussed. The focus is on the more “confrontational” form
of termination, namely dismissal. The LRA allows dismissal for three reasons, namely:
(1)
(2)
(3)
misconduct
incapacity, and
operational reasons
Dismissal for misconduct, or “fault” dismissal, implies that the employee is guilty of
misbehaving and is then dismissed. Dismissal for incapacity and operational reasons are
termed “no-fault” dismissals, because the employee is regarded as a “victim” or is caught in
circumstances beyond his or her control that warrant dismissal. Examples are an employee
who cannot perform the required work because of lack of skills or injury, or where he or she
is retrenched because of poor economic conditions. The focus of chapter 9 is on determining
when the conduct of the employer will be regarded as dismissal of the employee. If such
conduct does constitute dismissal, the next step is to determine whether the dismissal was
automatically unfair and, if not, whether it was fair or unfair. The type of dismissal will
determine which requirements will be applicable in determining whether it was both
substantively and procedurally fair.
This part of the prescribed book consists of two chapters (chapters 9 and 10), which contain a
detailed discussion of law of dismissal and other ways of terminating the employment
relationship.
At the start of the employment relationship, it is important to determine whether a person
qualifies as an employee or not because only employees qualify for protection in terms of
labour legislation. Such protection relates to minimum terms and conditions of employment,
unfair labour practices, unfair discrimination, unfair dismissal and participation in industrial
action. Once an employment contract has been concluded and an employee has commenced
work, both the employee and the employer have to perform as agreed on, in the contract of
employment. However, remember that the employment contract is subject to the minimum
conditions of employment contained in the BCEA and the rights and duties determined by
common law.
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As in any other area of life, matters may go wrong in the workplace. For example, during
employment, an employee can get temporarily ill or may be injured while on duty and the
provisions of COIDA or the UIA may apply. An employee may have a grievance against the
employer based on, for example, non-promotion or an unfair suspension and if it is
unsatisfactorily resolved, the employee will have to resort to an unfair labour practice claim.
With regard to dispute resolution, the LRA created the Commission for Conciliation, Mediation
and Arbitration (CCMA), the Labour Court and the Labour Appeal Court as special dispute
resolution institutions. The aim is to ensure accessible and fast dispute resolution. The LRA
requires that most disputes first be referred for conciliation, which can be conducted under
the auspices of the CCMA or a bargaining or statutory council registered for a particular
sector and area. If conciliation fails, the Act prescribes the dispute resolution route that
should be followed. These routes are either arbitration or adjudication. Either the CCMA or a
bargaining or statutory council deals with arbitration; the Labour Court deals with
adjudication. After arbitration, provision is made for a review of the award. In the case of
adjudication, provision is made to appeal against the decision by the court a quo.
PART IV: RULES APPLICABLE TO COLLECTIVE BARGAINING
The power play between employers and employees is best displayed when the employer and
employees engage in collective bargaining. The LRA and other labour legislation lay down
basic rights, duties and remedies to ensure fairness in the employment relationship. These
are matters relating to the rights that employees have and are called “rights issues”. When it
comes to creating new terms and conditions of employment ("interest issues" or "matters of
mutual interest") or changing existing terms, there is no legislation that specifically regulates
the situation. This is because the parties themselves best determine these issues. For
example, a court cannot determine an annual increase for employees.
The LRA recognises the importance of collective bargaining and supports the mechanism by
protecting the rights of employees and employers to form and join organisations of their
choice and to participate in the activities of those organisations. The LRA regulates the
registration of these organisations. It further creates bargaining forums, guarantees the right
to freedom of association, and regulates the right to freedom of association and
organisational rights. Lastly, it regulates industrial action for both employees and employers.
When you study Part IV of the prescribed book, it is important to understand that collective
labour law is not discussed as a phase of employment because it influences all stages of the
employment relationship.
Part IV consists of chapters 11, 12, 13, 14 and 15. Chapter 11 deals with the foundations of
collective labour law, namely freedom of association and organisational rights. Chapter 12
deals with collective bargaining and chapter 13 with workplace forums. Chapters 14 and 15
are about the various forms of industrial action, namely strikes and lock-outs, pickets and
protest action.
Please note that each part of the prescribed book starts with a summary and sets out the
legal implications relevant to each employment stage. Each chapter starts with a detailed
table of contents that will guide you through the chapter.
If you study the prescribed book and follow the guidelines in this learning material, you will
do well.
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B. STUDY UNITS
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STUDY UNIT 1
FREEDOM OF ASSOCIATION, TRADE UNIONS’ RIGHTS AND
EMPLOYERS’ RIGHTS
OUTCOMES
After studying this study unit, you must be able to do the following:
 explain the employees and employer’s right to freedom of association in terms of the
Constitution and the LRA
 draw a distinction between closed shop agreements and agency shop agreements and
how they limit the right to freedom of association of employees
 list and explain organisational rights which registered trade unions may acquire and the
level of representation required to acquire them
 list and explain different methods of acquiring organisational rights, and
 understand the dispute resolution process relating to organisational rights
1.1 PRESCRIBED MATERIAL



Chapter 11 of the prescribed book
Mischke C “Getting a Foot in the Door: Organisational Rights and Collective Bargaining
in terms of the LRA” CLL 13(6) (2004) 51.
Landman A “No free ride: The agency shop in South Africa” CLL (1996) 6 (No 1)
1.2 INTRODUCTION
KEY TERMS: freedom of association; trade union security arrangements; closed shop
agreement; agency shop agreement
The right to freedom of association is important for collective bargaining. Freedom of
association means that people have the right to associate with others in order to defend and
protect their common interests. In the workplace, freedom of association entails the right of
workers to form and join trade unions of their choice and to participate in its lawful
activities. Employers can also form and join employers’ organisations. This is in line with the
African (Sepedi) idioms that ‘motho ke motho, ka batho’ (you are, because of others);
‘bobedi bo bolaya noga’ (It is easier for two or more people to conquer the enemy) and
‘kopano ke matla’ (unity is power).
Freedom of association is one of the basic principles of labour law and this is reflected in
several International Labour Organisation (ILO) Conventions (Convention 87 of 1948 and
Convention 98 of 1949), the LRA and the Constitution. The right to freedom of association is
clearly protected in terms of sections 18 and 23 of the Constitution.
There is no balance of power between the employer and employees as employers have better
resources than employees and therefore employees get their strength and bargaining power
through trade unions. In order to strengthen the right to freedom of association for
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employees and their trade unions, the Constitution and the LRA provide for amongst others,
trade union security arrangements. Trade union security arrangements refer to closed shop
agreements and agency shop agreements. The LRA further strengthen the right to freedom
of association and collective bargaining by providing for five organisational rights which
representative trade unions may acquire from the employer. The LRA provides for:




what level of representation is needed to obtain these rights
how the level of representation should be determined
the processes available for obtaining these rights, and
the rights of minority trade unions with regard to organisational rights
1.3 IMPORTANT MATTERS TO UNDERSTAND
This STUDY UNIT deals with freedom of association, trade unions’ rights and employers’
rights.
(a) Historical background to freedom of association and trade unionism in South Africa
Study paragraph 1 of chapter 11 of the prescribed book.
Although freedom of association is important for workers; for many years, trade unionism did
not exist in South Africa. However with the discovery of minerals and the development of
mines in the late 19th century, trade unionism was introduced by mineworkers and artisans
who came from overseas, especially Britain. In South Africa, trade unions were first given
statutory recognition by the Industrial Conciliation Act 11 of 1924. Later, the Industrial
Conciliation Act 28 of 1956 was passed, which dealt extensively with freedom of association
and trade union rights. Far-reaching changes to labour legislation were however made after
the Wiehahn Commission made recommendations, which included the granting of the right to
freedom of association to all workers, including black workers. The right to freedom of
association is now entrenched in the Constitution and given effect to by the LRA.
(b) Freedom of association
Study paragraph 2 of chapter 11 of the prescribed book.
First, the Constitution grants everyone the right to freedom of association in its section 18
and then grants the right to freedom of association specifically to workers, trade unions,
employers and employers’ associations in its section 23 (see par 2.1 of chapter 11 of the
prescribed book). Second, the LRA gives effect to this right through various sections,
including sections 4; 5; 6; etc. Through freedom of association employees form trade unions
and employers form employers’ organisations in order to exercise this right. The LRA protects
freedom of association for employees, people seeking employment and employers.
The right to freedom of association is in line with the old practice in African societies, where
people found their security in groups such as the family and the community. This was based
on the belief that in unity there is power because individuals now see themselves through the
collective. In the workplace context employees form groups which are called ‘trade unions’
and employers form groups called ‘employers’ organisations’. On the one hand, through trade
unions employees’ interests, which include job security and improved terms and conditions of
employment are protected and on the other hand employers’ organisations represent the
interests of employers.
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Although the LRA does not apply to uniformed members of the SANDF and the State Security
Agency (which includes the National Intelligence Agency, the South African Secret Service,
the South African National Academy of Intelligence and the Electronic Communications
Security (Pty) Ltd), their right to freedom of association is still protected by section 23 of the
Constitution. Managerial employees also have a right to freedom of association, however it is
limited as they must balance their common law duty to act in good faith with their right to
freedom of association.
Do you think the limitation of the right to freedom of association for managerial employees
is justified?
(c)
Trade union security arrangements
Study paragraph 3 under chapter 11 of the prescribed book.
The Constitution and the LRA provide for the limitation of the right to freedom of association
by amongst others allowing trade union security arrangements in the form of closed shop and
agency shop agreements (section 23(6) of the Constitution and sections 25 and 26 of the LRA).
It must be noted that this limitation infringe on the right to freedom of association, however
the limitation is justified in terms of section 36 of the Constitution.
An agency shop agreement requires the employer to deduct an agreed agency fee from the
wages of employees who are identified in the agreement and who are not members of the
trade union which is party to the agreement, while the closed shop agreement requires all
employees covered by the agreement to be members of the trade union that is party to the
agreement.
Do you think it is fair for employees who do not want to become members of trade unions to
be bound by these agreements and why?
Study more about the two agreements in paragraphs 3.2 and 3.3 of chapter 11 of the
prescribed book. Please note that only post-entry closed shop agreements (employees are
required to join trade unions after they are employed and not before) are recognised under
the LRA.
ACTIVITY 1
Read through the following set of facts and answer the question below.
BB (Pty) Ltd concluded an agency shop agreement with BB Union, a majority trade union
within the workplace. John who is employed by BB (Pty) Ltd, but not a member of the union
realises that there are monthly deductions of an amount of R50 from his salary which are
made without his knowledge. On enquiry, he is informed that it is an agency fee, however
John is not pleased about this and wants this to stop because he never authorized the
deductions.
Advise John on whether he will succeed in stopping the agency fee deductions made from his
salary.
FEEDBACK 1
This is an agency-shop agreement concluded by a majority union and an employer through
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which the employer must deduct the agreed agency fee from the employees identified in the
agreement, subject to the following:
 The employer may only deduct from non-members who are eligible for membership
(conscientious objectors to the policies of the union (on religious or moral grounds)
must pay the fee, which is then paid into a fund administered by the Department of
Labour).
 The fee of non-members cannot be higher than the subscription fee payable by
members of the majority union.
 The employer can deduct agency fees from the wages of employees without their
authorisation.
Therefore John may not succeed in his claim.
(d)
Organisational rights
(i)
The purpose of organisational rights
Study paragraph 4.1 of chapter 11 of the prescribed book.
The purpose of organisational rights is to enable trade unions to be more effective in their
collective bargaining function. Organisational rights are only granted to registered trade
unions that have a certain level of representation in the workplace. The following table shows
the five organisational rights and the level of representation that a union must have, in terms
of the LRA, in order to acquire them:
Organisational right
Access to premises of the employer
(workplace)
Deduction of trade union membership
fees (subscription fees)
Election of trade union representatives
(shop stewards)
Leave (time-off) for trade union
activities
Disclosure of information
Minimum level of representation
Majority
representation
and
Sufficient
representation
Majority
representation
and
Sufficient
representation
Only Majority representation
Majority
representation
representation
Only Majority representation
and
Sufficient
It is important to note that a trade union that has majority representation in the workplace is
in principle entitled to all five organisational rights, while a sufficiently representative trade
union will only enjoy three rights.
A majority trade union is a trade union that represents at least 51% of all employees in the
workplace (see paragraph 4.4 of chapter 11 of the prescribed book). The LRA does not define
what sufficiently representative is, but gives guidelines (a union that represents
approximately 30% of the employees in the workplace).
Study more about these rights in paragraphs 4.2 to 4.4 of chapter 11 of the prescribed book.
(ii)
The acquisition of organisational rights
Study paragraph 4.5 of chapter 11 of the prescribed book.
Trade unions acquire organisational rights in the following ways:
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Method
Collective agreement
Membership of a bargaining council
Strike action
Section 21 procedure
(iii)
Notes
A
registered
trade
union
and
an
employer/employers’ organisation can conclude
a
collective
agreement
that
regulates
organisational rights.
Any registered trade union that is a party to a
bargaining council automatically acquires the
right to access the workplace (s 12) and the
deduction of trade union subscriptions (s 13) in
respect of all workplaces that fall within the
jurisdiction of the bargaining council.
A minority trade union, may strike in support of
a demand for organisational rights.
A registered trade union that is sufficiently
representative may acquire organisational rights
through the procedure outlined in section 21
(see paragraph 4.5.4 of chapter 11 of the
prescribed book).
Disputes about organisational rights
Study paragraph 4.6 of chapter 11 of the prescribed book.
Disputes about organisational rights may be referred to the CCMA in writing by any party to
the dispute.
(e)
Relationship between a union and its members
Study paragraph 5 of chapter 11 of the prescribed book.
The relationship between a trade union and its members is regulated by the union’s
constitution, which contains the necessary rules and procedures for different things, including
meetings.
(f)
Registration of unions
Study paragraph 6 of chapter 11 of the prescribed book.
The LRA defines a trade union as an association of employees whose principal purpose is to
regulate the relations between employers, including employers’ organisations, and their
employees. It is not necessary for a trade union to be registered in order to exist, however,
the LRA encourages registration and therefore grants benefits such as trade union security
arrangements; organisational rights; etc., to trade unions that register.
1.4
SELF-ASSESSMENT QUESTIONS
Question 1
Which organisational rights can only be acquired by a majority trade union?
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Question 2
Which ONE of the following statements about a closed shop agreement between a trade union
and an employer is INCORRECT?
(a)
(b)
(c)
(d)
It is entered into by way of a collective agreement between a majority trade union and
an employer or employers’ organisation.
None of the employees who were in the employ of the employer or employers when
the closed shop agreement was concluded may be dismissed for refusing to join the
trade union that is party to the closed shop agreement.
The dismissal of conscientious objectors for their refusal to join the union will be fair.
Union subscription fees can only be used to advance the socio-economic interests of
union members and not for any political affiliation.
Question 3
Section 21 of the LRA provides that a registered trade union can notify an employer in writing
that it wishes to exercise organisational rights.

Name FOUR types of information that must be contained in the written notice.

Which document must accompany the notice above?
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STUDY UNIT 2
COLLECTIVE BARGAINING
OUTCOMES
After studying this STUDY UNIT, you must be able to do the following:







explain the concept of collective bargaining
list examples of refusal to bargain by the employer
define a collective agreement
explain the binding effect of collective agreements in general and those concluded in a
bargaining council
describe the role of bargaining councils and statutory councils
explain how collective agreements are extended, and
understand the dispute resolution process for collective agreements
2.1 PRESCRIBED MATERIAL

Chapter 12 of the prescribed book
2.2 INTRODUCTION
KEY TERMS: collective bargaining; collective agreement; refusal to bargain; trade union;
bargaining council; statutory council
Study paragraph 1 of chapter 12 of the prescribed book.
The collective bargaining concept refers to a process which involves willingness on the part of
each party (employers and employees represented by trade unions) to not only listen to and
consider representations of the other party, but also to abandon fixed positions where
possible, in order to find common ground and reach agreement where possible. It is called
collective bargaining because employees (collectively) represented by a trade union (and not
as individuals) negotiate with the employer or employers’ organisation.
Labour law and Ubuntu both encourage a sound relationship based on accommodating
opposing views and conciliating competing interests. They are both based on an inclusive
approach where negotiations take place and a decision is reached on a particular matter. This
promotes a horizontal approach where decisions are not only made from the top. Collective
bargaining’s roots are based on freedom of association, which is an important principle of
Ubuntu, which encourages people to work together and when they do, their strength and
voice is stronger.
The purpose behind collective bargaining is to reach consensus about terms and conditions of
employment and formalise this by means of a collective agreement. A collective agreement
regulates the rights and duties agreed upon by the parties. This promotes peace and reduces
conflict in the workplace because once an agreement is reached, it must be adhered to, for
as long as it is valid.
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In this STUDY UNIT, we discuss the right to bargain, including refusal to bargain by the
employer; bargaining agents; bargaining structures and collective agreements.
2.3 IMPORTANT MATTERS TO UNDERSTAND
(a)
The duty to bargain
Study paragraph 2 of chapter 12 of the prescribed book.
The Constitution provides for the right to collective bargaining, however, in South Africa,
there is no duty (obligation) to bargain. The LRA adopted a voluntary approach to collective
bargaining but encourages it by amongst others granting organisational rights; recognising
union security arrangements (discussed in the previous study unit) for trade unions and
allowing parties to establish bargaining structures. The refusal to bargain can however result
in industrial action (for example, a strike) by employees in order to pursue the employer to
bargain. In terms of section 64(2) of the LRA, the refusal to bargain includes the following:





the
the
the
the
the
employer’s refusal to recognise a trade union as a bargaining agent
employer’s refusal to establish a bargaining council
employer’s withdrawal of the recognition of a collective bargaining agent
employer’s resignation as a party to a bargaining council, and
employer disputing appropriate bargaining units, levels and topics
Do you think there must be a duty to bargain in South Africa and why?
(b) Bargaining agents
Study paragraph 3 of chapter 12 of the prescribed book.
A trade union is a bargaining agent for employees. As explained in the previous STUDY UNIT, a
trade union is ‘an association of employees whose principal purpose is to regulate the
relations between employers, including employers’ organisations, and their employees’.
Trade unions are regulated by the LRA, which also prescribes the process for their
registration. Although a single employer can engage in collective bargaining with a trade
union, however, a single employee cannot engage in collective bargaining with the employer
(they must be represented by trade unions). An employers’ organisation is defined as "any
number of employers associated together for the purpose, whether by itself or other
purposes, of regulating relations between employers and employees or trade union". Trade
unions and employers’ organisations may together form bargaining councils.
A bargaining council is also similar to an African structure called ‘Kgoro’ where parties meet
to address whatever issues they have. At the ‘Kgoro’, people may send their representatives
who will represent their interests during the discussions. The representations made at the
‘Kgoro’ are seen as representations by the groups represented. Decisions relating to the
community made at the ‘Kgoro’ will then affect the community as a whole.
(c)
Bargaining Levels
Study paragraph 4 under chapter 12 of the prescribed book.
Bargaining can take place at the following levels:
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Bargaining level
Plant level
Sector level
Industry level
(d)
Explanation
This takes place between the employees and
the employer at a specific plant or factory.
This takes place in a specific sector of the
economy and is linked to a specific
geographical area.
This is bargaining for a whole industry, for
example the mining industry.
Statutory bargaining structures
Study paragraph 5 of chapter 12 of the prescribed book.
Bargaining councils and statutory councils are two types of structures created by the LRA for
collective bargaining purposes.
(i)
Bargaining councils
Study paragraph 5.1 under chapter 12 of the prescribed book.
A bargaining council can be established by one or more registered trade unions and one or
more registered employers’ organisations for a sector and area (for example, the mining
industry in Limpopo). Section 30 of the LRA lists topics that must be provided for in the
constitution of a bargaining council. The parties to the council may apply for its registration
to the Registrar of Labour Relations by submitting the documents prescribed by the LRA (see
section 5.1.2 of chapter 12 of the prescribed book). The powers of a bargaining council
include: to conclude collective agreements, to enforce such agreements and to prevent and
resolve disputes; etc. (see section 5.1.3 of chapter 12 of the prescribed book for other
powers and functions).
(ii)
Statutory councils
Study paragraph 5.2 under chapter 12 of the prescribed book.
A statutory council may only be established in a sector or area where there is no bargaining
council. A statutory council may be established when a representative trade union (that is, a
union or unions representing at least 30% of employees employed in the sector or area in
which application is made) or representative employers’ organisation (that is, an employers’
organisation whose members employ at least 30% of employees in the sector or area in which
the application is made) applies to the Registrar for the establishment of a council.
(e)
Collective agreements
Study paragraph 6 under chapter 12 of the prescribed book.
At the end of a successful collective bargaining process, a collective agreement is concluded
between the employer and trade union/s. A collective agreement regulates the terms and
conditions of employment on which the parties agreed.
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See paragraph 6 of chapter 12 of the prescribed book for the definition of a collective
agreement and its important elements, and for the legal and binding effect of a collective
agreement.
Effects of a collective agreement of a contract of employment: It is important to note
that a collective agreement changes any contract of employment between an employee and
an employer if they are both bound by the agreement. A collective agreement concluded in a
bargaining council is binding on parties to the bargaining council that are parties to the
agreement, and to parties to the council that are not parties to the agreement and parties
that are not members of the council and not parties to the agreement but fall within the
sector and area of jurisdiction of the council, if the agreement is extended to them in terms
of section 32 of the LRA by the Minister of the Department of Labour.
This is based on the belief that the majority rules. In other words what many people agree
upon will usually over-rule the position of individuals.
Collective agreements must contain a procedure for the resolution of disputes about the
application and interpretation of that agreement.
ACTIVITY 1
Abner’s contract of employment provides that he is entitled to 20 days’ sick leave days per
annum. There is a collective agreement concluded at the bargaining council within the sector
in which Abner works which provides that employees are entitled to 23 days’ sick leave per
annum. Discuss whether Abner will be entitled to 20 days’ sick leave or 23 days’ sick leave
per annum.
FEEDBACK 1
You must discuss the legal effects of a collective agreement. Abner will be entitled to 23
days’ sick leave as provided by the collective agreement concluded at the bargaining council.
2.4
SELF-ASSESSMENT QUESTIONS
Question 1
Explain the process of collective bargaining.
Question 2
Which ONE of the following statements regarding collective bargaining is CORRECT?
(a)
(b)
(c)
(d)
In South Africa employers have a duty to bargain with trade unions
Industry level bargaining refers to bargaining between an employer and trade
unions in the factory
A bargaining council represents the interests of employers during collective
bargaining
A single employee may not engage in collective bargaining with the employer.
Question 3
Define a ‘collective agreement’.
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STUDY UNIT 3
WORKPLACE FORUMS
OUTCOMES
After completing this STUDY UNIT, you should be able to do the following:



draw a distinction between workplace forums and trade unions
explain how workplace forums are established
describe the main functions of workplace forums, and
3.1 PRESCRIBED MATERIAL

Chapter 13 of the prescribed book
3.2 INTRODUCTION
KEY TERMS: workplace forum; consultation; joint-decision making
Study paragraph 1 of chapter 13 of the prescribed book.
This STUDY UNIT looks at workplace forums. Workplace forums were introduced in order to
enable all employees to participate in decision-making in the workplace, irrespective of their
trade union membership. They were aimed at dealing with non-wage-related matters,
separate from the collective bargaining system, which is adversarial in nature.
Labour law and Ubuntu use an inclusive approach of consultation and joint decision making in
dealing with matters both of which encourage fairness and transparency in reaching
decisions. The introduction of workplace forums was aimed at encouraging this approach
within the workplace. The main functions of workplace forums are consultation and joint
decision-making. ‘Dikgoro’ in African practice, served as forums for consultation and joint
decision-making where important decisions affecting the community were taken. This is again
an approach where not all decisions are made from the top, but all parties are involved. This
approach humanises the law because decisions made are generally based on consensus. This
approach also encourages and allows for a transparent and accommodative way of dealing
with matters.
3.3
IMPORTANT MATTERS TO UNDERSTAND
(a)
Establishment of workplace forums
Study paragraph 2 under chapter 13 of the prescribed book.
In terms of the LRA, a workplace forum may only be established in a workplace where there
are more than 100 employees. This is done through a collective agreement, or through the
intervention of the CCMA or by a trade union. Unlike trade unions, workplace forums are not
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involved in wage-related issues and cannot embark on industrial action. All employees,
except senior managerial employees, can be members of a workplace forum.
Do you think workplace forums are necessary and why?
(b)
Functions of workplace forums
A workplace forum has a number of functions, including, consultation and joint decision–
making powers. It must therefore be consulted on certain matters and be involved in jointdecision making on certain matters. Study these matters in paragraphs 4; 5 and 6 of chapter
13 of the prescribed book.
The following is a summary:
Consultation
The forum makes representations and advances alternative proposals
on a matter to the employer. The employer must consider the
proposals and respond to them. If the proposals are not acceptable, it
must provide reasons.
Matters for consultation:











Joint decisionmaking
restructuring of the workplace (for example, the introduction of
new technology)
changes in the organisation of work
the total or partial closure of the plant
mergers and transfers of ownership if they affect employees
the retrenchment of employees
exemptions from a collective agreement or law
job grading
criteria for merit increases or the payment of discretionary
bonuses
education and training
product development plans
the promotion of exports
The employer must consult and reach consensus with the workplace
forum.
Matters for joint decision-making:




disciplinary codes and procedures
proper regulation of the workplace
measures to protect and advance persons disadvantaged by unfair
discrimination
changes of employer representatives on boards of employercontrolled schemes with regard to social benefits
Study paragraph 7 of chapter 13 regarding workplace forums and disclosure of information.
Study also paragraph 8 of chapter 13 regarding organisational rights of workplace forums.
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ACTIVITY 1
Draw a distinction between consultation and joint decision-making as functions of workplace
forums.
FEEDBACK 1
Consultation: The forum makes representations and advances alternative proposals on a
matter to the employer. The employer must consider the proposals and respond to them. If
the proposals are not acceptable, it must provide reasons.
Joint decision-making: The employer must consult and reach consensus with the workplace
forum.
Study paragraphs 5.1 and 6.1 of chapter 12 of the prescribed.
3.4
SELF-ASSESSMENT QUESTIONS
Question 1
Draw a table with two columns indicating three matters about which consultation must take
place and three matters that must be settled by way of joint decision-making, with a
workplace forum.
Question 2
Is the statement below true or false? Provide reasons for your answer.
A workplace forum enters into an agreement which regulates the terms and conditions of
employment with company A. This agreement has the status of a collective agreement and is
binding on all the employees of company A.
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STUDY UNIT 4
STRIKES AND LOCK-OUTS
OUTCOMES
After completing this STUDY UNIT, you should be able to do the following:








define a strike and a lock-out
mention and explain procedural requirements for a protected strike and lock-out
explain what matters of mutual interest are for purposes of strikes and lock-outs
mention and explain the limitations/prohibitions on strikes and lock-outs
explain the legal consequences of a protected strike
explain the legal consequences of an unprotected strike
define a secondary strike, and
mention and explain procedural requirements for a protected secondary strike
4.1 PRESCRIBED MATERIAL


Chapter 14 of the prescribed book
Le Roux, PAK “Strikes and Lock-outs: When does a Dispute exist?” CLL 17(8), March
(2008) 76
4.2 INTRODUCTION
KEY TERMS: industrial action; strike; lock-out; matters of mutual interests; secondary
strike; ‘no work no pay’
Study paragraph 1 of chapter 14 of the prescribed book.
The aim of collective bargaining between the parties is to negotiate and conclude a collective
agreement, however, if no agreement is reached; after following the set processes, one party
may decide to put pressure on the other party through industrial action. This STUDY UNIT,
discusses industrial action which can take the form of strikes or secondary strikes by
employees or recourse to lock-outs by employers. The use of power sounds inhumane and
contrary to Ubuntu; however, before any form of industrial action may take place there are
procedural requirements, which must be met in order to ensure fairness and justice. If the
requirements are not met then the action will not be protected and there will be negative
consequences.
Industrial action through strikes and lock-outs is an integral part of collective bargaining.
Industrial action should, however, be used as measures of last resort. Take note that strikes
are used by employees to support their demands and to promote and defend their
employment-related interests and lock-outs are used by employers to support their demands.
Industrial action is recognised in South Africa and the right to strike is entrenched in the
Constitution, which guarantees every worker the right to strike. However, the Constitution,
does not grant employers the right to lock-out employees as this right is implied in the
express protection of the constitutional right to bargain collectively. This is given effect to by
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the LRA, which provides that every employee has the right to strike and every employer has
recourse to lock-out.
You must be able to distinguish between the different types of industrial action and to know
when such action will be protected in terms of the LRA.
In addition to the above, this STUDY UNIT also discusses the limitations on the right to strike
and on recourse to lock-out in terms of section 65 of the LRA. These are instances where
employees may not strike and employers may not lock-out employees. Examples of these
limitations are where there is an agreement that regulates the issue in dispute and where
workers are engaged in essential services.
The legal consequences of protected and unprotected strikes and lock-outs are also discussed
in this STUDY UNIT.
Why do you think it is important for employees to have the right to strike?
4.3
IMPORTANT MATTERS TO UNDERSTAND
(a)
Legislative protection of the right to strike and lock-out
Study paragraph 2 of chapter 14 of the prescribed book.
As stated above, the Constitution protects the right of every worker to strike, but does not
grant employers the right to lock-out employees. Both the right to strike and recourse to
lock-out are regulated and protected by Chapter IV of the LRA. Neither of these rights is
directly protected in terms of ILO conventions, but indirectly through Conventions 87
(Freedom of Association and Protection of the Right to Organise Convention) and 98 (Right to
Organise and Collective Bargaining Convention).
(b)
Protected industrial action
Both strikes and lock-outs must comply with the following requirements in order to be
protected: the action must comply with the definition of “strike” or “lock-out”; it must
comply with the procedural requirements in terms of section 64 of the LRA; and there should
not be any limitations in terms of section 65 of the LRA.
Requirement 1: Definition
The action has to comply with the definition of a strike and a lock-out to qualify for
protection. Study the definitions of these two concepts in paragraphs 4.2 and 4.3 of chapter
14 of the prescribed book.
Each definition has important elements that you should know. The three elements of a strike
are (study these elements under paragraphs 4.2.1 – 4.2.3 of chapter 14 of the prescribed
book):
Refusal to work
The refusal can be partial or complete, or the
retardation or the obstruction of work. Work
includes overtime work.
by persons employed by the same or The
right
to
strike
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different employers
individually; there must be collective action.
for the purpose of remedying a If there is no dispute of mutual interest between
grievance or resolving a dispute in the parties, the action will not comply with the
respect of any matter of mutual interest definition.
between an employer and employee.
In line with Ubuntu collective labour law promotes oneness even when it comes to strikes, as
an individual employee is not allowed to engage in a strike action. This emanates from the
Sepedi expression that ‘kopano ke matla’ (unity is power). The right to strike can therefore
only be exercised collectively.
The two elements of a lock-out are as follows (study these elements under paragraphs 4.3.1
and 4.3.2 of the prescribed book):
The exclusion of employees from the It is not a lock-out if the employer excludes an
employer’s workplace
individual employee from the workplace.
for the purpose of compelling them to If the purpose is not to compel employees to
accept a demand in respect of any accept a demand in respect of a matter of mutual
matter of mutual interest.
interest, the action will not comply with the
definition.
Take note that for an action by employees to constitute a strike and for an action by the
employer to constitute a lock-out; all the stated elements in the definition must be present.
It is important to understand these definitions because if an action does not fall within the
prescribed definition, it will not constitute a strike or lock-out and it might even be regarded
as a breach of contract or a delict (which could result in a claim for damages).
Requirement 2:
The procedural requirements for strikes and lock-outs
Study paragraph 5 of chapter 14 of the prescribed book in this regard.
Through the procedural requirements, the LRA provides the rules for fair play in collective
bargaining. A strike or lock-out will be protected if these requirements have been met,
except in a few exceptional cases that will be discussed later.
The purpose of the procedural requirements is to give parties the opportunity to try to
resolve their disputes before they engage in a strike or lock-out. The following are the
procedural requirements prescribed by the LRA in order for strikes and lock-outs to be
protected:
(i) The issue in dispute. The LRA requires that there must be an issue in dispute. In
addition, it requires that the parties must try to resolve the issue by first referring it to a
bargaining council (if there is one for the sector) or to the CCMA (if there is no bargaining
council), for conciliation.
(ii) Certificate of outcome. The forum to which the dispute was referred must attempt to
resolve it through conciliation within 30 days of the referral. If no agreement is reached,
a certificate must be issued to indicate that the matter has not been resolved.
(iii) Notice. If the matter is not resolved or 30 days have passed, the LRA prescribes that at
least 48 hours’ written notice must be given before the commencement of the strike or
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lock-out. In cases where the state is the employer, at least seven days’ notice must be
given. Where the employer is a member of an employers’ organisation, notice must be
given to the employers’ organisation. This promotes fairness which is a constitutional
value and is in line with Ubuntu, as the employer is informed in advance that action will
be taken against it. It gives an employer an opportunity to prepare itself for the looming
action.
ACTIVITY 1
Read through the following set of facts and decide whether the actions fall within the first
element of the definition of a strike:

Members of Together We Win Union, working in the packaging department of Aroma
Soaps, embark on an action in terms of which they report for duty every morning, but
refuse to work during the lunch-time period.

Employees in the dispatch section of Cheap Cements lock the doors to their section and
refuse to dispatch any cement for a few hours every day, however, during this time
they carry on packing the cement bags which are within their section.
FEEDBACK 1
The actions in both of the above examples comply with the first element of a strike. Both
constitute partial refusals to work. In the first case, the employees are refusing to work their
full hours. In the second case, they are refusing to perform all the tasks allocated to them.
Remember that although these actions fall within the first element of the definition of a
strike, this does not mean that they are strikes. For this to be the case, the other elements of
the definition must also be complied with.
The LRA does not prescribe the details that the notice must contain; it only prescribes that it
must be in writing and must be issued at least 48 hours before the action.
The exceptions where the parties do not need to follow the procedures prescribed by the LRA
are the following:




where the parties to the dispute are members of a bargaining council and the dispute
followed the procedure prescribed by that council’s constitution
where the parties are party to a collective agreement which prescribes the procedures to
be followed before a strike or lock-out, and those procedures have been followed
where employees strike in response to an unprotected lock-out or the employer resorts to
a lock-out in response to an unprotected strike
where the strike takes place because the employer has unilaterally changed the terms
and conditions of employment, and the employer has failed to rectify this despite prior
warnings
Where an employer refuses to bargain with a union, the dispute must be referred for advisory
arbitration, after conciliation has failed, before notice of the strike can be issued
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Requirement 3:
Prohibitions or limitations on strikes and lock-outs
Study all these limitations under paragraph 6 of chapter 14 of the prescribed book.
The rights in the Bill of Rights may be limited in terms of section 36 of the Constitution. In
view of this provision, in its section 65, the LRA limits or prohibits the right to strike and
recourse to lock-out.
If a strike or lock-out takes place in spite of these limitations or prohibitions, the strike or
lock-out will be unprotected, even if the procedural requirements discussed above have been
met.
In terms of the LRA, strikes and lock-outs are prohibited in the following circumstances:
striking or locking out is prohibited in a If the parties agreed that they would not engage
collective agreement
in industrial action on a certain issue, they are
not allowed to do so.
arbitration is prescribed by agreement
Parties are bound by any agreement in terms of
which the particular issue should be arbitrated.
the parties have a right to refer a dispute If a party has the right to refer the dispute to
to arbitration or adjudication
arbitration or to the Labour Court for
adjudication, that party may not resort to a
strike or lock-out in order to resolve the dispute.
employees who work in essential or
maintenance services. Make sure you
understand this important limitation,
discussed under paragraphs 6.6.1 and
6.6.2 of your prescribed book.
Employees who are engaged in the provision of
essential and maintenance services are prohibited
from striking, unless there is an agreement
regarding minimum services.
an award or agreement or determination No one may take part in a strike or a lock-out if
regulates the issue
he or she is bound by an arbitration award or an
agreement or a determination by the Minister of
Labour that regulates the issue.
(c)
Secondary strikes
Study paragraph 7 of chapter 14 of your prescribed book and make sure that you understand
how a secondary strike differs from a primary strike (discussed above). A primary strike is
the main strike by employees who have a dispute with their employer. A secondary strike is
by employees who are employed by another employer (secondary employer), who do not have
a dispute with their employer. A secondary strike is in support of employees who are engaged
in a primary strike.
A secondary strike will therefore be protected if first, the primary strike is protected; second,
if strikers gave their employer seven days’ written notice before the strike and third, if the
harm to the secondary employer is not more than that which is necessary to make an impact
on the primary employer. Through secondary strikes also known as sympathy strikes,
employees show solidarity and sympathise with other workers who are in dispute with their
employer. This is solidarity in action which is in line with Ubuntu which requires that people
should support those who are in need of support.
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Do you think it is necessary and fair to have secondary strikes?
(d)
Legal consequences of strikes and lock-outs
(i)
Protected strikes and lock-outs
Study paragraph 8 of chapter 14 of the prescribed book.
The action by employees or the employer will be protected if all the requirements set by the
LRA are met. Consequently, the employees and the employer (whatever the case may be) will
enjoy the following protection:




The employee may not be dismissed, except in the case of misconduct and for the
operational requirements of the business.
The action by the employer or the employees does not constitute a delict or breach of
contract.
The employer may not discriminate against the employee because of his or her
involvement in the strike.
No claims for compensation can be instituted against employees or employers.
This is in line with the constitutional value of fairness and Ubuntu, which encourages
compliance with the rules. Those who comply with the rules should be protected, however,
there must be consequences for those who do not comply with the rules as will be seen
below.
Given the above, what is your opinion about strikes and violence in South Africa?
Other consequences for a protected strike



(ii)
No claim for compensation against employees engaged in a protected strike
The employer does not have to pay employees who are on strike or are locked out, since
the "no work, no pay" rule applies. What is your opinion about this rule?
Take note that where the remuneration of employees include payment in kind in the form
of accommodation, the provision of food and other basic amenities of life, the employer
may not withhold that payment in kind during the strike or lock-out. However, the
employees must request that the payment in kind continues.
No replacement labour may be used by the employer if the service is designated as a
maintenance service or the employer embarks on an offensive lock-out.
Unprotected strikes and lock-outs
Study paragraph 9 of chapter 14 of the prescribed book
The following are the consequences of an unprotected strike or lock-out:
Interdict
The Labour Court has jurisdiction to grant an interdict or an order restraining any person from
participating in or acting in contemplation or furtherance of an unprotected strike.
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Compensation
The Labour Court may order the payment of "just and equitable compensation" to either
employees or employers who suffered any loss caused by an unprotected strike or lock-out.
This is in line with African practice where in the ‘Kgoro’ if a person who caused damage to
another is found guilty, such as person may be required to pay damages or to compensate the
victim for the damage caused. This is also in line with the Ubuntu principle of fairness
entrenched in the Constitution.
Dismissal of strikers
Employees who participate in an unprotected strike, or who commit certain forms of conduct
in contemplation or furtherance of an unprotected strike, may be dismissed. Participation in
unprotected action will be the reason for such a dismissal. The Code of Good Practice:
Dismissal provides that participation in an unprotected strike constitutes misconduct.
However, as is the case with any other act of misconduct, participation in an unprotected
strike does not necessarily justify dismissal as the dismissal will only be fair if it is both
substantively and procedurally fair.
This again encourages the constitutional value of fairness and is in line with Ubuntu according
to which a person cannot be punished unless it is clear that he/she failed to comply with
certain rules or failed to follow a certain prescribed procedure.
 Substantive fairness of dismissal for participation in an unprotected strike
Study paragraph 9.3.1 of chapter 14 of the prescribed book.
The Code of Good Practice: Dismissal requires that the substantive fairness of the dismissal of
strikers who participated in an unprotected strike must be evaluated in the light of the
following:



the seriousness of the failure to comply with the LRA
attempts to comply with the provisions of the LRA, and
any unjustified conduct by the employer
 Procedural fairness of dismissal for participation in an unprotected strike
Study paragraph 9.3.2 of chapter 14 of the prescribed book.
The Code of Good Practice: Dismissal requires that the dismissal of strikers who engaged in an
unprotected strike must be procedurally fair, and it sets out the procedure to be followed as
follows:
 The employer is required to contact a union official "at the earliest opportunity" before
dismissing the strikers. The purpose of this contact is to discuss the course of action the
employer intends to follow and to give the union the opportunity to persuade the
employer not to dismiss the strikers and for the workers to return to work.
 The employer must give the strikers an ultimatum before dismissing them. The following
factors are important regarding the ultimatum:


the purpose of an ultimatum is to convince strikers to return to work
the ultimatum must be communicated to the strikers in a medium they understand
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
the ultimatum should be issued in their own language
 the ultimatum must be clear and unambiguous, leaving no doubt as to what is expected
of them
 the time set in the ultimatum should be reasonable, in other words it must allow
sufficient time for workers to receive and digest the ultimatum, to hold meaningful
discussions with their union and to take rational decisions
 if the ultimatum is issued to a collective bargaining representative (a union
representative) within a reasonable time, it would constitute sufficient notice to
employees.

Once the strikers have complied with the ultimatum, the employer can no longer
take disciplinary action against them for taking part in the unprotected strike.
If the workers, however, elect not to make representations, their dismissal will
not be considered to be procedurally unfair.
In circumstances where it cannot reasonably be expected from the employer to
issue an ultimatum, the employer may summarily dismiss the strikers.


ACTIVITY 2
Answer the following questions:

Discuss whether employees who participate in a protected strike may at all be
dismissed.
FEEDBACK 2
 Employees who participate in a protected strike may not be dismissed for their
participation, otherwise that will amount to an automatically unfair dismissal.
However, employees who participate in a protected strike may be dismissed if they
commit acts of misconduct or for operational reasons.
4.4
SELF-ASSESSMENT QUESTIONS
Question 1
Indicate whether the following actions will constitute a strike action and provide reasons for
your answer.
Action 1: Employees employed by Shining Granites decide to disrupt production. Half of them
refuse to work during the morning of each day and the other half during the afternoon. The
purpose of their action is to compel the employer to stop taxi drivers from harassing ladies
employed by the company at the taxi rank.
Action 2: Employees in a spice factory deliberately produce fewer spices than they normally
do in order to compel the employer to increase their salaries.
Action 3: Employees who work for Core Stone Mine refuse to work underground because they
consider the conditions unsafe. After an investigation, the mine is declared safe; however,
the employees still refuse to work.
Action 4: Employees represented by trade unions affiliated to GFTU engage in an action
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against the new tax system introduced by the government.
Question 2
An employer faced with a protected strike can  .
1
2
3
4
5
dismiss the striking employees for participating in the strike
dismiss employees who are not striking for refusing to do the jobs of the protected
strikers
promise to pay a bonus to all those strikers who decide to return to work
dismiss the striking employees on the basis of operational requirements
approach the Labour Court for an interdict prohibiting the strike action
Question 3
SAAS is a factory situated in Pretoria and it supplies car paints to Car Paints (Pty) Ltd, a
company which sells car paints in Pretoria. Paint Workers Union (PWU) has been trying to
negotiate with Car Paints (Pty) Ltd for a change in the shift system without success. PWU
embarks on a protected strike to compel Car Paints (Pty) Ltd to accept their demand. After
hearing about the dispute, members of PWU employed by SAAS go on strike in support of the
demand. What is the strike by employees of SAAS called and what requirements must be
complied with for the strike to be protected?
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STUDY UNIT 5
PICKETS AND PROTEST ACTION
OUTCOMES
After completing this STUDY UNIT, you must be able to do the following:



define a picket and a protest action
mention and explain procedural requirements for a protected picket
mention and explain procedural requirements for a protected protest action
5.1 PRESCRIBED MATERIAL

Chapter 15 of the prescribed book
5.2 INTRODUCTION
KEY TERMS: picket; protest action
In this STUDY UNIT other forms of industrial action such as pickets and protest action are
discussed. Often employees and trade unions pursue other, broader interests beyond the
workplace, in order to advance economic interests. However, they may not use strike action
for this purpose. The LRA affords employees and trade unions the right to participate in a
protest action as a form of industrial action in pursuit of socio-economic interests.
This shows that trade unions play a wider role in society more than just work-related matters.
Trade unions often engage in campaigns that go beyond matters of mutual interest between
employers and employees. Trade unions and their federations in South Africa played an
important role in putting pressure on the government in order to bring political changes in the
country. These also shows Ubuntu as the interests pursued by workers are socio-economic
interests which benefit not only workers, but the society as a whole.
5.3
IMPORTANT MATTERS TO UNDERSTAND
5.3.1 Picketing
A strike is the most effective weapon that trade unions and employees can use against
employers, however, in order to exert more pressure on the employer during a protected
strike, trade unions may encourage their members to engage in another action, called a
picket, to advance the object of the strike. A picket is therefore conduct in contemplation or
furtherance of a strike.
A picket shows solidarity for employees, which is inherent in Ubuntu. A picket serves to raise
greater awareness and binds a group of people together for one cause.
Study paragraph 2.2 of chapter 15 of your prescribed book and item 3(1) of the Code of Good
Practice: Picketing regarding the purpose of a picket.
Do you think it is necessary to for employees to picket if they are on strike?
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(a)
Requirements for protected pickets
During a picket, employees may stand at or near their workplace to try to persuade
employees not on strike to strike or to convince customers or suppliers of the employer not to
deal with the employer. As is the case with strikes and lock-outs, a picket will be protected if
it complies with certain requirements. The action must comply with the definition of a picket
and with the procedural requirements set by section 69 of the LRA.
This again encourages the constitutional value of fairness and is in line with Ubuntu which
encourages compliance with the rules and promotes peace between the parties. An action by
employees which does not comply with the set procedure will not be protected.
Requirement 1: Definition
Study paragraph 2.2 of chapter 15 of the prescribed book.
The purpose of the action must be to encourage non-striking employees and members of the
public peacefully to oppose any lock-out or to support a protected strike.
Requirement 2: Procedural requirements
In terms of section 69 of the LRA, the requirements are the following:



The picket must be authorised by a registered trade union. Unregistered trade unions
and employees on their own cannot authorise a picket. This encourages trade unions to
register and be regulated.
The picket must be for the purpose of peacefully demonstrating. Intimidation and
violence will result in civil and criminal liability. This peaceful element of a picket is an
important element of Ubuntu, which discourages violence.
The picket must be in support of a protected strike or in opposition to any lock-out.
Pickets in support of unprotected strikes will not be protected.
Pickets may take place at any place to which the public has access, but are usually held
outside the premises of an employer. A picket may even be held on the premises of the
employer, on condition that the employer gives permission for this. Such permission may,
however, not unreasonably be withheld. Study paragraph 2.4 of chapter 15 of the prescribed
book regarding where picketing can take place.
Study paragraph 2.5 of chapter 15 of the prescribed book regarding picketing rules and
conduct during a picket.
(b)
The legal consequences of protected and unprotected pickets
Study paragraph 2.6 of chapter 15 of the prescribed book.
As is the case with strikes and lock-outs, there are legal consequences to pickets that are
protected and to those that are unprotected. This again encourages employees and their
trade unions to comply with set requirements. The following are the legal consequences of a
protected picket:

An employee who takes part in a protected picket does not commit a delict or breach of
contract.
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The employer may not sue employees or their trade union for damages suffered during a
protected picket.

No disciplinary action may be taken against an employee for participating in a
protected picket, except for acts of misconduct (such as intimidation or threatening
others). The consequences of an unprotected picket are exactly the opposite of those of
a protected picket.
ACTIVITY 1
Members of Ultimate Power Union engage in a picket in support of a demand that the
government should change the tax system.
Discuss whether the action will indeed qualify as a picket in terms of the LRA.
FEEDBACK 1
The action will not qualify as a picket in terms of the LRA, as a picket must be in support of a
protected strike or any lock-out. The demand mentioned above is not a matter of mutual
interest between the employer and employee, but it is a socio-economic matter.
5.3.2 Protest action
After studying protest action, you must be able to explain its purpose and how it differs from
the purposes of a strike action and a picket.
(a)
Requirements for protected protest action
There are two requirements for protected protest action: the action must comply with the
definition of protest action, and with all the procedural requirements in terms of section 77.
Requirement 1: Definition of protest action
At times, employees and trade unions pursue interests of more general importance (beyond
those of the workplace) in order to advance economic development (COSATU and other
federations have engaged in various campaigns for this purpose). However, they cannot strike
for these purposes. The LRA affords employees and trade unions the right to engage in protest
action as a form of industrial action in order to pursue socio-economic interests.
Study the definition of protest action in paragraph 3.1 of chapter 15 of the prescribed book.
Take note that the difference between a strike and protest action lies in the purpose of the
actions. The purpose of a strike is "to remedy a grievance or resolve a dispute in respect of
any matter of mutual interest between employer and employee", whereas the purpose of a
protest action is "to promote or defend the socioeconomic interests of workers".
Ubuntu is demonstrated in protest action where workers pursue not only their interests but
also the interests of others. Through protest action workers put pressure on the powers that
be (government) to give attention to socio-economic issues. During these actions employers
are not required to pay employees because they will not be performing their duties as per
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their contracts of employment. Workers therefore sacrifice (their wages) for the benefit of
all, which is an element of Ubuntu.
Do you think a protest action is important?
Requirement 2: Procedural requirements
Study paragraph 3.2 of chapter 15 of the prescribed book.
Please note that employees engaged in essential and maintenance services may not take part
in protest action. Protest action will be protected if it complies with the following procedural
requirements:




(b)
A registered trade union or federation of trade unions must call the action.
The National Economic, Development and Labour Council (NEDLAC) must be informed of
the protest action, its nature and the reason for the action.
NEDLAC or any other appropriate forum must have considered the matter that gives rise
to the protest action.
NEDLAC must have been given 14 days’ notice of the intention to protest.
Legal consequences of protected and unprotected protest action
Study paragraph 3.3 of chapter 15 of the prescribed book.
If a protest action meets the above procedural requirements it will be protected. No civil
claim may be brought against participating employees and they may not be dismissed for
their participation in the action. However, in terms of section 77(4) of the LRA the action will
not be protected if employees participate in protest action in breach of a Labour Court order
or when employees otherwise act in contempt of an order of the Labour Court made in terms
of section 77. If the action is not protected, employees may be interdicted and damages may
be claimed from employees who participated in the action. Such employees may also be fairly
dismissed.
ACTIVITY 2
Members of trade unions affiliated to the Trade Unions of South Africa are engaged in an
action in terms of which they demand a change in the education system which has just been
introduced by the government.
Discuss whether these workers are engaged in a strike action or a protest action.
FEEDBACK 2
The action by workers will not qualify as a strike action because its purpose is not to remedy
or resolve any dispute with regard to matters of mutual interest between employees and their
employers. Instead the action will qualify as a protest action because it relates to socioeconomic interests of workers.
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5.4
SELF-ASSESSMENT QUESTIONS
Question 1
Which ONE of the following is NOT a requirement for a protected picket?
(a)
(b)
(c)
(d)
(e)
The picket must be authorised by a registered trade union.
The picket must be peaceful.
The picket must be in support of a protected strike.
The picket must, if it is not in support of a strike, be in opposition to any lock-out.
The employer must give permission, which (permission) may not be unreasonably
withheld, for the picket to go ahead.
Question 2
Can employees engaged in essential services take part in protest action?
Best wishes with your studies!
YOUR LECTURERS
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