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Strikes form an integral part of collective bargaining in South Africa. They are constitutionally protected and governed by an extensive legislative framework designed to balance employees’ rights with employers’ operational needs. However, the distinction between protected and unprotected strikes is often misunderstood, creating significant legal and operational risks for employers when not properly managed.

It is critical that parties understand what constitutes a protected strike, the procedural requirements under the Labour Relations Act (LRA), the consequences of non‑compliance, and the steps that employers should take when confronted with unprotected strike action.

Strikes Defined            
Section 213 of the LRA defines a strike as: “The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons employed by the same or different employers, for the purpose of remedying a grievance or resolving a dispute relating to a matter of mutual interest.”

A crucial element of this definition is the requirement that the dispute must involve a matter of mutual interest, typically relating to the creation of new rights e.g. higher wages. These are known as disputes of interest, and are distinct from disputes of right which concern existing legal or contractual entitlements and must be resolved through arbitration or adjudication rather than industrial action.

Requirements of a Protected Strike

Section 64 of the LRA prescribes the steps that must be followed for a strike to be lawful and protected, which comprise of the following:

• Referral: A dispute must first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant bargaining council for conciliation once collective bargaining has reached an impasse.
• Conciliation outcome: If conciliation fails, the Commission will issue a certificate of non‑resolution which entitles the parties to engage in power play. Alternatively, if 30 days have lapsed since the date of referral without conciliation having occurred and no resolution being reached, employees may embark on a protected strike.
• Strike notice: Employees (or the union on their behalf) must provide the employer with at least 48 hours’ written notice of their intention to embark on a strike. The notice must contain the date on which the strike is to commence, who will participate in the strike, and a clear demand in order to be valid. Once this notice has been issued, the employees may commence with strike action on the indicated date.

Once these requirements have been met, employees enjoy full protection under the LRA. Essentially, this means that employers cannot take action against employees for participating in or supporting the protected strike.

An employer cannot stop a protected strike by any means other than giving in to employees’ demands. Their response to such a strike is limited to contingency planning, such as arranging for replacement labour to continue operations and ensuring that the business is safeguarded against any potential vandalism or violence on the part of strikers.

Importantly, this protection does not shield employees from disciplinary action for misconduct committed during a protected strike.

Unprotected Strikes  
A strike becomes unprotected when the mandatory requirements of Section 64 are not met. In such circumstances, an employer may approach the Labour Court for an interdict directing employees to cease participating in the unprotected strike and/or an order for compensation for any losses caused by the strike.

The most notable effect of participation in an unprotected strike is that such participation constitutes misconduct. Courts have repeatedly confirmed employers’ rights to discipline or dismiss employees who engage in such action as in the Labour Appeal Court case of County Fair Foods v FAWU & others (CA02/2017), where the Court held that the dismissal of employees who continued to participate in an unprotected strike and blatantly ignored the ultimatums that were issued by the employer was fair.

A Structured Response to Unprotected Strikes        
In order to effectively deal with unprotected strike action, it is important to determine the issue in dispute that caused the unprotected strike action and attempt to resolve the issue with the employees through dialogue.

Where employees are represented by a registered trade union, the employer must engage with the union directly in an attempt to resolve the dispute, and the union must advise their members of the potential consequences of their actions if going ahead with the unprotected strike. If there is no registered union, the employer must engage with the employees directly.

In the event that dialogue fails and/or the employees persist with their conduct, the employer must issue clear and unambiguous ultimatums to the participating employees that require them to resume to their normal duties and to refrain from further participation. It should also set out what sanction may be imposed if they do not comply with the ultimatum. Should the ultimatums and instructions be ignored, the employer may proceed to issue a notice to attend a disciplinary hearing in order for the striking employees to answer for their misconduct.

It is important to note that participation in an unprotected strike will not automatically result in dismissal. Item 12 of the new Code of Good Practice: Dismissals, sets out the factors that employers must consider in determining a fair sanction for participation in an unprotected strike, which include:

• The seriousness of the contravention of the Act,
• Attempts made to comply with the Act,
• Whether the strike was in response to unlawful, unfair, or unreasonable conduct by the employer,
• The conduct of the parties to the dispute related to the strike and the conduct by any other person that has bearing on the seriousness of the contravention,
• The legitimacy of the strikers’ demands,
• The duration and timing of the strike, and
• The harm caused by the strike.

The key consideration in determining sanction will always be fairness under the prevailing circumstances.

Clarity for Employer Action

Whether protected or unprotected, strike action can create significant operational disruptions and legal exposure for employers. It is therefore critical that employers understand the requirements for lawful strike action, recognise when a strike is unprotected, and respond appropriately.