Benjamin Franklin once said, “By failing to prepare, you are preparing to fail”, and that is exactly the kind of mindset an employer must have when it comes to industrial action.
During October 2021, there was both an industry-wide strike as well as a nationwide strike. The former being organised by the trade union NUMSA and the latter by the by trade union federation COSATU. These ongoing strikes and protests have an enormous impact on the economic well-being of not only our economy as a whole but on our metal and engineering industries as well.
Therefore, it is important to understand and thoroughly prepare for industrial action of this scale to minimise/eliminate the impact it can have on affected business owners.
NUMSA embarked on their protected strike action against the metal engineering industry as recent as 5 October 2021. Section 64 of the Labour Relations Act (“the LRA”) regulates strikes and lockouts. NUMSA followed the correct procedures to embark on their protected strike action in terms of the LRA, and therefore, all employees who participate in the protected action may not be disciplined for their participation therein.
Businesses that currently find themselves in this predicament and who seek to lock their striking employees out of the workplace must ensure they follow the correct procedures and timeframes when doing so. A Lock Out is a counteraction that an employer may implement against the striking employees to demand or sway the union and its members to give in to the counter wage offers the businesses are able to afford. It is crucial for the businesses and its owners to be available to listen to demands and negotiate with the unions during this time. Many business owners do not see the need to continue with operations during the strike period. Still, unfortunately, there is a common law duty on the employer to always have its premises available to its employees who do not wish to participate in the strike action and would rather return to the workplace.
So what additional information should all business owners know when dealing with the current industry-wide strike?
Firstly, business owners should ensure employees know that the principle of ‘’no work no pay’’ will apply should employees not work. Secondly, a contingency plan should be put in place to ensure continued delivery to clients. Thirdly, businesses should issue a Notice of Intention to Lock Out once the Notice of Strike has been received from the union. In this notice, the employees will be barred from entering the employer’s premises until the employees comply with the employer’s demands. These notices should be sent to the trade union and given to the employees. Lastly, business owners should be aware that they are allowed to hire replacement labour during protected strike action, if required, to ensure uninterrupted services can be provided to their clients.
While these strikes are protected in terms of the LRA, it does not provide striking employees with carte blanche to break the Picketing Rules and engage in actions such as intimidating non-striking employees or the public. Employers should monitor the situation to provide a safe working environment for the remainder of employees.
Employees are still obligated in terms of their employment contracts to inform employers of the fact that they will not be at work. Failure to comply with this could be considered misconduct, and the employer can take action.
Contact your SEESA Labour Legal Advisor to assist your business with any strike queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the author:
Francois started his career at SEESA in 20219 and is currently a Legal Advisor. He obtained his LLB degree in 2018, and was admitted as an attorney in 2019.
Resources:
- Labour Relations Act, Act No. 66 Of 1995;
- Metal and Engineering Industries Bargaining Council (MEIBC) default picketing rules dated 3 October 2021 issued by CCMA Senior Commissioner Shamain Dadabhai;
- Sizwe Pamla (Cosatu National Spokesperson) Cosatu media statement on the upcoming socio economic strike https://mediadon.co.za/2021/10/05/cosatu-statement-on-the-upcoming-socio-economic-strike-on-thursday/ accessed 10/10/2021.