Rights and Constraints During Strike Action

Insights from Basic Conditions of Employment Act

During strike action, Employers face their rights and limitations, which might not be immediately apparent when considering the concept of a “strike.” The consequences for an Employer and their organisation tend to be overshadowed. 

The Labour Relations Act (LRA) defines a strike as “a partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, to remedy a grievance or resolve a dispute in respect of any matter of mutual interest between employer and employee and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory “ 

The focus here is on Employees’ actions, leaving Employers’ responses overlooked. This raises the question of the alternatives available to Employers in such situations. Recognising that just as Employees have the right to strike, Employers can resort to a lock-out as a last measure to protect their businesses. 

When Can an Employer Resort to a Lock-Out?

A lock-out occurs when an Employer denies Employees access to the workplace. Essentially, it means that striking employees cannot provide their services, as they are physically prevented from doing so and consequently won’t receive their wages/salaries. Moreover, replacement labour during a lockout is only permissible in response to a strike (defensive lockout) or as a tactic to enforce Employee compliance with the Employer’s demands.

During an offensive lockout, the employer will not be allowed to use replacement labour.

As outlined in section 64 of the LRA, Employers have the right to implement a lock-out under the following conditions:

  1. The dispute must have been referred to the Bargaining Council or the Commission for Conciliation, Mediation, and Arbitration (CCMA), resulting in a certificate stating that the matter remains unresolved. Alternatively, 30 days, or any extension, must have lapsed since the Council or Commission received the referral.
  2. In the event of a lock-out, any Trade Union involved in the dispute must receive written notice at least 48 hours in advance. If there is no Trade Union, the notice should be provided to the affected employees. However, exceptions exist, such as when the issue pertains to a Collective Agreement within a Council or if the Employer is part of an employer’s organisation. In such instances, the notification must be directed to the relevant Council or employers’ organisation.
  3. For Employers who are governmental entities, the parties above must be given a written notice at least 7 days before the lock-out commences.

Understanding the Limits

Nevertheless, there are situations where an Employer’s use of the lock-out option is prohibited. This includes cases where the dispute involves parties affiliated to a Bargaining Council, and that specific Council has resolved the matter under its Main Agreement. Furthermore, if an Employer fails to adhere to the conditions outlined in Section 64(4) and (5) of the LRA, the option of resorting to a lock-out becomes unavailable.

An exception would be in the case of an unprotected employee strike; in this instance, the employer will be well within its rights to impose an immediate lockout. 

In conclusion, while Employees possess the right to strike under the LRA, Employers also hold the right to initiate a lock-out. However, this right is subject to fulfilling all necessary prerequisites and understanding the associated limitations.
If you would like to find out more about your rights as an employer during strike action, then please do not hesitate to contact Invictus Group on 0861 737 263.