Strikes, lockouts and the services of labour lawyers

Strikes and lockouts are sometimes unavoidable in the case of a seemingly irresolvable dispute. The fact is that workers have a right to strike, while employers have a right to lock out workers. However, there are set rules and procedures that apply in each case that must be adhered to if any action is to be legal. You may also face issues pertaining to secondary strikes and pickets, which also require careful handling.

Generally speaking, a strike or lockout is more likely to be legal when:

  • The CCMA has received a referral about the matter
  • 30 days have elapsed since the referral
  • A certificate has been issued that the dispute remains unresolved
  • 48 hours’ written notice of a strike has been provided to the employer, a council or to an employers’ organisation
  • 48 hours’ written notice of a lockout has been given to the trade union, the workers (if they are not union members) or a council

We can advise you on all aspects of strikes and lockouts such as:

Workers’ Rights – such as how workers should be treated during a strike, dealing with disciplinary action and legal proceedings and communicating with the workforce to reach a speedy dispute resolution.

Employers’ Rights – making sure the rights of the organisation are considered, along with the employees’ rights. For example, although you do not normally have to pay workers during a strike, you may be asked to continue to provide payment in kind such as accommodation, food or basic amenities (we may be able to help you reclaim these expenses). It is still possible to dismiss a worker for misconduct or for operational needs during a strike.

Lockouts – Illegal lockout action can be troublesome (especially if an otherwise illegal strike becomes legal as a result). Our approach will make sure the correct procedures are followed before you take action so that a lockout remains legal.

Refusal to Bargain – If either party decides not to bargain, we’ll help with matters such as obtaining an advisory award before a strike can be held or helping to bring parties back to the table.

Strikes – strikes can be devastating to a business. But if the strike can be shown to be illegal we may be able to restore working practice to normal by quickly referring the matter to the labour court, which may grant an interdict or restraining order, especially if:

  • A collective agreement or arbitration award binds the parties;
  • An agreement has been referred for arbitration or to the Labour Court;
  • A wage determination binds the parties and it is less than 1 year old; or
  • The parties are providing an essential or maintenance service.

Secondary Strikes – on occasions when workers strike in support of a legal strike held by other workers (a secondary strike) we’ll support you on how to ensure rules have been adhered to and whether it is legal or not.

Picketing – a registered trade union may authorise its members and supporters to picket in support of a legal strike, or to oppose a lockout. But rules must be agreed on in advance of any picketing. We’ll ensure the parties or the CCMA is agreed on the picketing rules and that any disputes on picketing rights are referred to appropriate bodies.

Make sure you know your rights beforehand

Our approach is always to place importance on reaching agreement first. Before action like strikes and lockouts occur be sure of the best way forward and talk to us first.