In light of the scheduled national shutdown planned for 20 March 2023 by political and union interests, it is fitting to share what South African Labour Legislation states about - Protest action to promote or defend the socio-economic interest of workers and Strike or lock-out in compliance with the Labour Relations Act (LRA).
Section 77 of the LRA states:
Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if –
(a) the protest action has been called by a registered trade union or federation of trade unions;
(b) the registered trade union or federation of trade unions has served a notice on NEDLAC stating –
1. the reasons for the protest action; and
2. the nature of the protest action.
(c) the matter giving rise to the intended protest action has been considered by NEDLAC or any other appropriate forum in which the parties concerned are able to participate in order to resolve the matter; and
(d) at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action.
A person/employee (regardless of whether they are a member of the or an affiliated trade union of federations of trade unions or not) who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with the above, enjoys the protection conferred in section 67 of the LRA.
Section 67 of the LRA states:
A person does not commit a delict or a breach of contract by taking part in –
(a) a protected strike or protected lock-out (20 March 2023 is a protected strike as it has been certified by NEDLAC); or
(b) any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.
Despite the above, an employer is not obligated to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out (no work no pay principle), however –
(a) if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food, and other basic amenities of life, the employer, at the request of the employee, must not discontinue payment in kind during the strike or lock-out; and
(b) after the end of the strike or lock-out, the employer may recover the monetary value of the payment in kind made at the request of the employee during the strike or lock-out from the employee by way of a civil proceeding instituted in the Labour Court.
An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike. This does not preclude an employer from fairly dismissing an employee in accordance with the provisions of schedule 8 of the LRA for a reason related to the employee’s conduct during the strike, or for a reason based on the employer’s operational requirements.
Civil legal proceedings may not be instituted against any person/employee for –
(a) participating in a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or protected lock-out.