The prerequisites for a protected strike are set out in section 64 of the Labour Relations Act 66 of 1995, while section 65 sets out limitations on the right strike. Section 65 (1)(d)(i) explicitly states, “No person may partake in a strike (or a lock-out) or in any conduct in contemplation or furtherance of a strike (or a lock-out) if that person is engaged in an essential service.”
“Essential Service” is defined in section 213 of the Labour Relations Act, as—
(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population;
(b) the Parliamentary service;
(c) the South African Police Services;
Paragraphs (b) and (c) are especially designated essential service (reiterated in section 71(10)). Even though paragraph (a) is fairly narrow, there is some uncertainty as to which services fall within the definition. Determining which services are to be regarded as essential is the function of the Essential Services Committee, established by the Minister, in terms of section 70 of the Labour Relations Act. The process which is followed is set out in section 71 accordingly. The Essential Service Committee, from time to time conduct investigations into services offered in various sectors, to determine if the whole or part of such service should be declared as essential.
During an investigation conducted in 2019, a number of services were declared as essential, including but not limited to, the service of road traffic incident management, the detection and reporting of fires and the whole sale and supply of cash in South Africa. It is important that when the committee declares a service essential, providers of such services become aware of the changes to the law, they have a responsibility to ensure that their employees understand the impact that this categorization will have on their right to strike.
Distinction of protected and unprotected strikes
Section 41 of the South Africa Police Services Act 68 of 1995 prohibits members of the South African Police Services from striking or inducing any other member to strike. It empowers the National or Provincial Commissioner to discharge summarily from the South African Police Services any member who strikes or conspires with another to strike.
The wording of the abovementioned section was considered problematic as there were many employees within it whose work was hardly vital in preserving “life, personal safety or health, however the Constitutional Court, in SAPS v POPCRU (2011) 9 BLLR 831 (CC) ruled that the prohibition on strikes is applicable only to members performing policing functions.
There has however been reports of threats by the South African Police force to embark on illegal strikes over the course of the last couple of years. Bheki Cele, the Minister of Police reiterated that it is illegal for the South Africa Police to go on strike as they are categorized as an essential service.
It is important to make a clear distinction between protected and unprotected strikes, because if a strike complies with the statutory requirements in Chapter IV of the Labour Relations Act, the strike is protected and employees who engage in a protected strike are given immunity from delictual claims, claims for breach of contract and are protected against dismissal. However, should employees fall with the definition of essential services as per section 213 of the Labour Relations Act, they are not afforded or entitled to the same protections.
Definition of “strike” according to Labour Relations Act
The definition of the term “strike” in section 213 of the Labour Relations Act includes, “…for the purpose of remedying a grievance or resolving a grievance must be in respect of any matter of mutual interest between employer and employee.” If we have a look at past instances where the taxi industry threatened to strike during the lockdown period, requiring that the government relax social distancing rules to increase the occupancy of the vehicle. The government is not their employer, therefore a grievance or dispute that arises between an industry and the government is not one that arises between employer and employee and by its very nature does not fall within the definition of strike or the ambit of Chapter IV of the Labour Relations Act.
When striking it is important to ascertain whether an employee falls within the services of essential services or not and whether or not the strike is protected and compliant. Should employees elect to proceed with a protected strike, the principle on no work no pay applies, and they will not be entitled to any remuneration during such period.
Should you require any assistance with strike action and whether your company falls within the category of a Essential Services, contact Invictus Group on 0861 737 263 for us to assist you.