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The Labour Relations Amendment Bill 2012: Restricting the right to strike?

Gavin Stansfield

As the law currently stands, there are three procedural requirements that a party (usually a trade union) who wishes to embark on protected strike action must comply with.

The term ‘protected’ strike action refers to a lawful strike which complies with the requirements of the Labour Relations Act 1995 ("LRA"). The effects of embarking on protected strike action are that:

  • No employee may be dismissed because they participated in the strike; and
  • Any employee who participates in a protected strike does not commit a break of their contracts. 

How does the Labour Relations Amendment Bill change the existing legislation?

Currently, for a strike to be protected, a dispute between an employee and employer must first be referred to the CCMA for conciliation. If the dispute is settled here, the strike action is averted. If, however, conciliation is unsuccessful:

  • The CCMA issues a certificate, which is a procedural requirement (in terms of the LRA) for a protected strike, stating that the issue in dispute remains unresolved. 
  • Any person and/or union who, after a certificate is issued by the CCMA, wishes to go on strike must give an employer at least 48 hours advance warning of the intended strike action. 

The Labour Relations Amendment Bill 2012 proposes that for a strike action to be protected, the union members must vote on whether or not a proposed strike should go ahead. And the majority of those members, who voted in the ballot, must have voted in favour of the strike, The CCMA must certify that a trade union has conducted a ballot in compliance with the requirements of the LRA.

This proposed amendment has met significant opposition from organised labour

There can be little doubt that this amendment will make it more difficult for unions to embark on protected strike action. Critics of the amendment highlight how difficult it is to organise a ballot within single or even multiple workplaces, the time and cost associated with this and the practical difficulties associated with counting the ballots and collating the results. 

Supporters of the amendment argue that the introduction of a strike ballot is necessary that the members themselves (being the persons ultimately affected by the strike) are in support of the strike as opposed to trade union officials who wish to assert their muscle by calling their members out on strike action. Whether this proposed amendment survives the process of public scrutiny and comment currently underway and makes an appearance in our law in due course remains to be seen.

  Author: Gavin Stansfield, director of employment at Cliffe Dekker Hofmeyr. Gavin has been endorsed for his skills in dispute resolution. Gavin achieved a BA LLB LLM HDip Co.Law from the University of Cape Town.