It is difficult to imagine a time when the motto “Eight hours for work, eight hours for rest and eight hours for what you will” was not the rule of thumb for workers. While Phillip II of Spain issued an ordinance as far back as 1594 that established the eight-hour workday, in other countries this simple motto would only take hold after labour strikes which often turned deadly.
Our history is filled with violent strikes across all races from 1910 and onwards, but with the advent of democracy in 1994, it became a constitutional right to strike in accordance with section 23 of the Constitution.
The Labour Relations Act was promulgated in 1995 and in section 1 describes the primary objectives of the Act as being, among others:
- to give effect to and regulate the fundamental rights conferred by the Constitution;
- to provide a framework within which employees and their trade unions, employers and employers’ organisations can collectively bargain wages, terms of employment and formulate industrial policy; and
- to promote orderly collective bargaining, participation in decision-making in the workplace by employees and the effective resolution of labour disputes.
While the Constitution and LRA both protect the right to strike as a means of collective bargaining, a group of employees who plan on striking should however remember that there are certain procedural requirements in section 64 of the LRA that must be met for a strike to be deemed a protected strike. Firstly, the employees and employers must engage in conciliation and if unsuccessful, obtain a certificate that confirming that, alternatively that the matter has been referred to the CCMA but that it has remained unresolved for a period of 30 days. Secondly, the employees are required to furnish the employer with 48 hours’ notice of the intended strike.
If the employees fail to comply with these two requirements, the strike may be deemed to be unprotected, and the employee may be dismissed for their participation, subject to substantive fairness of the dismissal.
