EMPLOYMENT LAW

STRIKE
GUIDELINE
All employees (acting
in concert with other
employees) have the
right to strike

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

STRIKE: FAQS All employees of an employer may associate
themselves with a protected strike, even if they are not
WHAT IS A STRIKE? members of the trade union initiating the dispute and
declaring the strike.
The Labour Relations Act, No 66 of 1995 (LRA)
defines a strike as “the partial or complete NOTE: The employer must identify and record which
concerted refusal to work, or the retardation employees are on strike as this information will
or obstruction of work, by persons who are or become important if the employer approaches the
have been employed by the same employer or by Court to interdict an unprotected or violent strike.
different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of WHAT IS A PROTECTED STRIKE?
any matter of mutual interest between employer A protected strike is a strike that complies with the
and employee and every reference to ‘work’ in this requirements in the LRA, where the subject matter of
definition includes overtime work, whether it is the strike is legitimate and procedural requirements
voluntary or compulsory” are complied with prior to the strike commencing.

If a strike is protected, no adverse consequences may

result for employees who participate in protected
A STRIKE CAN TAKE THE FORM OF
strike action. Those employees are indemnified
from claims for breach of contract or delict and for
damages suffered by the employer pursuant to a
A partial or complete refusal to work protected strike. Importantly, employees are protected
from dismissal for participating in a protected strike.
A ‘go slow’ where employees are working slowly
to put pressure on an employer to comply with WHAT PROCEDURAL REQUIREMENTS MUST BE
a demand COMPLIED WITH FOR A STRIKE TO BE PROTECTED?

A ‘grasshopper’ strike. This happens when the The issue in dispute must be referred
employees go on intermittent work stoppages to the Commission for Conciliation,
about the same demand (ie strike, return to work, Referral Mediation and Arbitration (CCMA) or
strike again)
Bargaining Council

but always in conjunction with the defined purpose of

attempting to resolve a mutual interest issue existing Before a strike notice is issued:
between the parties. The disgruntled employees will
normally express the purpose of a withholding of work A. 30 days must lapse from when the
in some form of a demand made to the employer. 30 Days/ dispute was received by the CCMA or
Certificate Bargaining Council; or
DOES A WORK STOPPAGE CONSTITUTE A STRIKE?
B. A certificate must be issued stating
A work stoppage is different to a strike.
that the dispute remains unresolved
The difference between a work stoppage and a strike
is that there is no demand made by the participants in (The first to occur of A or B)
a work stoppage, the participants simply stop working.

NOTE: The distinction between a work stoppage and

a strike is an important one as it has an impact on the
types of remedies available to the employer when A written notice stipulating the
such conduct occurs. Strike commencement of the strike must
notice be issued to the employer at least 48
WHO MAY GO ON STRIKE? hours before the strike commences

All employees (acting in concert with other employees)

have the right to strike. An individual employee cannot
strike on his or her own. The LRA, however, sets out
certain limitations and requirements that must be
complied with for a strike to be protected.

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

 WHY MUST THE ISSUE IN DISPUTE BE REFERRED TO relating to an unfair dismissal or where an employer pays an
CONCILIATION BEFORE THE STRIKE? employee less than the amount set out in employment law
or an employment contract.
A code of good practice on collective bargaining,
industrial action and picketing (the Code) was issued in An interest dispute is a dispute to create new rights and
December 2018. The Code is aimed at promoting orderly can form the subject of a protected strike or lockout. An
collective bargaining, effective and speedy resolution of example of such a dispute is a dispute about increase in
disputes, peaceful strikes and lockouts and the prevention of wages or a change to working hours.
prolonged violent industrial action.
WHAT ARE EXAMPLES OF INTEREST DISPUTES?
The Code sets out two reasons why issues in dispute must
be referred to conciliation. Firstly to try and have the dispute The Code sets out the following examples of
resolved without resorting to industrial action and secondly, interest disputes:
to record the demands and agree on picketing rules, lines of • disputes about what the next years wages will be
communication and the need for minimum services. • disputes about introducing new shift systems
• disputes about working hours or higher rates of
WHAT HAPPENS IF A STRIKE DOES NOT COMMENCE
overtime pay
ON THE DATE AND TIME STIPULATED IN THE
WRITTEN NOTICE? CAN EMPLOYEES STRIKE OVER AN UNLAWFUL DEMAND?
The trade union should issue another notice stating the date No. An example of an unlawful demand is a demand that the
and time of the strike if it intends to strike. If no such notice employer dismiss a manager or that employees work more
is issued it may lead to the inference that the trade union has overtime than permitted in law.
waived or abandoned its right to strike.
WHAT STEPS CAN AN EMPLOYER TAKE IF THE PROTECTED
WHAT DISPUTES CAN EMPLOYEES STRIKE OVER? STRIKE ACTION BECOMES VIOLENT?
Although the right to strike is a constitutional right, Amendments have been introduced to the LRA to deal with
section 65 of the LRA provides limitations on the right to lengthy violent strike action. The amendments permit the
strike. In terms of this section, employees are prohibited director of the CCMA to establish an advisory arbitration
from striking if they are: panel. Employers can apply to the director to establish an
• “Bound by a collective agreement that prohibits a strike advisory arbitration panel. Employers can also approach the
or lock-out in respect of the issue in dispute” Labour Court to interdict unlawful behaviour.
• “Bound by an agreement that requires the issue in
The employer may also institute disciplinary action against
dispute to be referred to arbitration”
the employees who are acting unlawfully. In terms of
• Engaged in an essential or maintenance service the amendments to the LRA, the Labour Court may also
In addition, section 65 prohibits employees from striking order the director of the CCMA to establish an advisory
over an issue in dispute that can be referred to arbitration or arbitration panel.
the Labour Court in terms of the LRA or other employment
WHEN DOES A PROTECTED STRIKE BECOME AN
law. The LRA distinguishes between disputes that can be
UNPROTECTED STRIKE?
resolved by arbitration or adjudication (rights disputes) and
disputes that can be resolved by the exercise of economic A protected strike can only become an unprotected strike if
power (interest disputes). Employees may not strike over it continues beyond the point when the employer complies
rights disputes. fully and unconditionally with the demand or the strikers
alter their demands. (Transport and Allied Workers Union
NOTE: The limitations in section 65 are equally applicable
of South Africa obo Ngedle and others v Unitrans Fuel and
to lock-outs.
Chemical (Pty)Ltd [2016] 11 BLLR 1059 (CC))
WHAT IS THE DIFFERENCE BETWEEN A RIGHTS DISPUTE
CAN AN EMPLOYER DISMISS EMPLOYEES FOR
AND INTEREST DISPUTES?
PARTICIPATING IN A PROTECTED STRIKE?
The Code identifies the differences and the importance of
No. A dismissal in such circumstances would constitute
the differences between right disputes and interest disputes.
an automatically unfair dismissal. However, misconduct
IN TERMS OF THE CODE: during a protected strike may be the subject of appropriate
disciplinary action.
A rights dispute is a dispute that relates to existing rights and
that the LRA or other employment laws require be resolved
by adjudication or arbitration. An example is a dispute

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

WHAT ARE THE ESSENCE OF THE AMENDMENTS TO THE WHO IS APPOINTED TO SIT ON THE ADVISORY
LRA RELATING TO THE ESTABLISHMENT OF AN ADVISORY ARBITRATION PANEL?
ARBITRATION PANEL?
A senior commissioner will be appointed as the chairperson,
The amendments permit the director of the CCMA to and two assessors (one appointed by the employer and the
establish an advisory arbitration panel. The circumstances other by the trade union).
of the strike or lockout will be considered by the panel
and an advisory award will be established aimed at WHAT HAPPENS IF THE EMPLOYER OR THE TRADE UNION
helping the parties resolve the dispute. The award DOES NOT APPOINT AN ASSESSOR?
will, among others, set out recommendations for the The director must appoint an assessor from lists provided
resolution of the dispute and the parties will have seven by NEDLAC.
days to accept or reject the award. The award is binding
on parties who accept it or persons to whom it has been WHAT IF THE EMPLOYER OR TRADE UNION REFUSES TO
extended to by the Minister. PARTICIPATE IN THE PROCEEDINGS OF THE PANEL?

WHEN WILL AN ADVISORY ARBITRATION PANEL BE The director is required to appoint a person with the
ESTABLISHED? requisite expertise to represent the interests of that party
refusing or failing to participate in the proceedings.
The director must appoint an advisory arbitration panel if
ordered to do so by the Labour Court or if the parties to the DOES THE APPOINTMENT OF THE PANEL INTERRUPT OR
dispute agree to the panel being established. SUSPEND THE RIGHT TO STRIKE OR LOCKOUT?
The director may also appoint an advisory arbitration panel No.
on his/her own accord or on application by a party to the
dispute. If a party to the dispute applies for an advisory WHAT WILL AN AWARD SET OUT?
arbitration panel to be established or the Minister directs A report on factual findings, recommendations to resolve
that a panel be established, before establishing the panel, the dispute, motivations as to why the recommendations
the director must have grounds to believe one or more of should be accepted, the seven-day period within which the
the listed circumstances exist: parties must either accept or reject the award.
(i) ”The strike or lockout is no longer functional to
CAN A PARTY REJECT THE AWARD?
collective bargaining in that it has continued for a
protracted period of time and no resolution of the Yes, but before doing so the trade union or employer’s
dispute appears to be imminent; organisation must in accordance with its constitution,
consult with its members. Any rejection is required to
(ii) there is an imminent threat that constitutional
be motivated.
rights may be or are being violated by persons
participating in or supporting the strike or lockout
WHAT IF A PARTY DOES NOT ACCEPT OR REJECT THE
through the threat or use of violence or the threat
AWARD WITHIN THE PRESCRIBED TIME PERIOD?
of or damage to property; or
If a party fails to accept or reject the award within seven
(iii) the strike or lockout causes or has the imminent
days, the party is deemed to have accepted the award.
potential to cause or exacerbate an acute national
or local crisis affecting the conditions for the IS THE AWARD BINDING AND WHO DOES IT BIND?
normal social and economic functioning of the
community or society.” The award will be binding on the party and its members who
accepted the award or who are deemed to have accepted
WHEN WILL THE LABOUR COURT ORDER THE DIRECTOR the award. If the award is extended by the Minister in terms
TO ESTABLISH AN ADVISORY ARBITRATION PANEL? of s32 of the LRA it will be binding on persons who are not
members of the parties to the council or on persons who
The Labour Court will order the director to establish a panel
have rejected the award.
if there is an application to the Labour Court by a person
or association materially affected by the circumstances in
(ii) or (iii) above and the Labour Court considers that the
circumstances in (ii) and (iii) exist.

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

QUESTIONS FOR CONSIDERATION: The Labour Court may also order the payment of compensation
for loss arising from the unprotected strike after having regard
CAN A PROTECTED STRIKE LOSE THAT STATUS WHERE THE to a number of factors, including the “financial position of the
VIOLENCE IS EXTREME AND UNCONTROLLABLE? employer, trade union or employees”.

Despite attempts to interdict a protected strike on account In addition, in the recent decision of Numsa and Others v Dunlop
of violence and declare the strike unprotected, the Labour Mixing and Technical Services (Pty) Ltd 2021 (4) SA 144 (SCA),
Court is yet to make such a ruling. In previous judgements, the the nSCA concurred with the decisions of the LAC which stated
Labour Court has stated that it is possible to obtain this form of that where a picket is authorised in terms of the LRA and damage
relief, but that the court should not easily adopt an approach is suffered as a result of said picket, the LRA takes preference
which so severely limits the constitutional right to strike. over the Regulations of Gatherings Act 205 of 1993 and an
aggrieved employer may only seek relief from the Labour Court.
The test currently suggested by the Labour Court in order to
Accordingly, where a strike or picket has resulted in damage,
succesfully declare a protected strike as unprotected, is that the
including damage to property, an employer is entitled to make an
nature and degree of the strike violence must be such that the
application to the Labour Court for an award of just and equitable
strike is no longer functional to collective bargaining and that it no
compensation for the damage suffered as a result of a strike or
longer supports the legitimate purpose of collective bargaining.
picket that turns violent.
While this relief has in theory been mentioned by the Labour
Court as being possible, it is yet to grant such an order and/or set IF A BALLOT IS NOT CONDUCTED WILL THE STRIKE
out guidelines as to what degree of violence it considers sufficient BE UNPROTECTED?
for such an order. Trade unions and employer organisations who apply for
registration must have adopted a constitution meeting the
CAN AN EMPLOYER DISMISS EMPLOYEES AS A RESULT
requirements in LRA. One of the requirements is that the
OF OPERATIONAL REQUIREMENTS FLOWING FROM A
constitution must provide that before calling a strike or lock-out,
PROTECTED STRIKE?
the trade union or employer’s organisation must conduct a
Although employees are protected from dismissal for participating ballot of members in respect of whom it intends to call the strike
in protected strike action, the LRA does not preclude employers or lock-out. The LRA has been amended to clarify that a ballot
from dismissing employees based on operational requirements. means any system of voting by members that is recorded and
However, in circumstances where the intention of a strike is to secret. The LRA now also requires every registered trade union
put financial pressure on an employer’s business, an employer and employer’s organisation to keep the ballot papers or any
will have to prove that the main reason for the dismissal was the documentary or electronic record of the ballot for a period of
operational requirements of the employer and did not relate three years from the date of every ballot.
to employees’ participation in the protected strike and that the
In Mahle BEHR SA (Pty) Ltd v NUMSA and Others;
reason for the dismissal and procedure followed was fair. The
FOSKOR (Pty) Ltd v NUMSA and Others (2019) 40 ILJ 1814 (LC),
employer will also have to show that it considered alternatives to
the Labour Court held that the language of the amendments
retrenchment and paid attention to letting the outcome of the
to s95(5)(p) of the Labour Relations Act are peremptory and
strike be determined by the normal exercise of economic power.
accordingly, trade unions and employer oraganisations must
WHAT REMEDIES ARE AVAILABLE TO AN EMPLOYER IF STRIKE engage in a secret ballot prior to embarking on strike action or a
ACTION IS UNPROTECTED? lock-out.

Therefore trade unions and employer organisations must comply

TIPS ON EVIDENCE IN SUPPORT OF AN INTERDICT with the balloting provisions of their respective constitutions in
OR DISCIPLINARY ACTION RELATING TO VIOLENCE, order to engage in a protected strike.
INTIMIDATION OR DAMAGE TO PROPERTY:
Accordingly a strike or lock-out may be interdicted on the basis
that a trade union or employer organisation has failed to conduct
Keep a strike diary detailing all incidents relating to the and record a secret ballot.
strike including incidents of violence, intimidation and
damage to property Section 19 of the Amendment Act that came into operation on
1 January 2019 provides that if there is non-compliance with
the requirement to have a provision in its constitution to hold a
Obtain written and signed statements of witnesses ballot, it must nevertheless hold a secret ballot. In the absence
detailing violence, intimidation and damage to property
of a secret ballot under those circumstances, the strike may
be interdicted.
Obtain clear photographic and video evidence
CAN AN EMPLOYER DISMISS AN EMPLOYEE FOR PARTICIPATING
IN UNPROTECTED STRIKE ACTION?
Keep evidence where the trade union was informed of the
violence, intimidation and/or damage to property Although participation in an unprotected strike constitutes
misconduct, dismissal may not necessarily be the appropriate
Unprotected strike action may be interdicted by the Labour Court remedy. The Code of Good Practice: Dismissal sets out various
on application. The LRA provides for an expedited process in such considerations when determining the fairness of the dismissals.
an event. Employers may also take disciplinary action against These considerations include whether “the strike was in response
employees for participating in unprotected strike action. to unjustified conduct by the employer.”

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

WHAT IS THE CORRECT TEST WHEN ASSESSING THE
MISCONDUCT OF AN EMPLOYEE?

In Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021]
ZALAC 3 (1 March 2021), the employees were dismissed for
misconduct namely – carrying weapons (such as sticks) during
their strike action. The Labour Appeal Court confirmed that the
correct test entails, amongst others, determining whether, on
the evidence presented, the dismissed employees were aware
of the specific rule prohibiting the misconduct or could have
reasonably been expected to have been aware of such a rule. The
Labour Appeal Court further stated that courts have consistently
cautioned against an overly technical and formulaic approach
to interpretation of a rule, for example, distinguishing between
‘brandishing’ and ‘carrying’ a weapon during a strike.

WHAT IS THE CONCEPT OF DERIVATIVE MISCONDUCT?

In National Union of Metalworkers of South Africa obo Nganezi

and Others v Dunlop Mixing and Technical Services (Pty) Ltd
and Others [2019] ZACC 25 (a case dealing with violence during
strike action), the Constitutional Court confirmed that derivative
misconduct may be described as a form of misconduct that arises
through the failure of an employee to offer reasonable assistance
in the finding and identifying of fellow employees who are actually
responsible for some form of misconduct. Simply put, those
employees who are aware of an act of misconduct but choose to
remain silent make themselves guilty of a derivative violation of
the trust relationship.

The Constitutional Court also found that where the employer

seeks to impose a duty on its employees to disclose information
about their fellow striking employees, the reciprocal nature of
the trust relationship between them requires the employer to
guarantee the safety of the disclosing employees.

CAN EMPLOYEES STRIKE IN RESPECT OF HEALTH AND SAFETY

MEASURES? A secondary strike is a strike
In De Heus (Pty) Ltd v South African Commercial and Catering held in support of a primary
Workers Union (SACCAWU) and Others (J 685/20) [2020] strike by other employees
ZALCJHB 149 (7 September 2020) the Labour Court confirmed
that the employees embarked on industrial action within the strike
against their employer
definition as envisaged in the LRA, but held that even though
health and safety issues in the light of COVID-19 are paramount
and that the safety of employees at all workplaces should not
be compromised, this does not warrant employees the right to
embark upon industrial action at a whim, without first engaging
with their employers on issues, or the department of labour,
where the regulations are not complied with, or without first
complying with the provisions of section 64 of the LRA.

CAN EMPLOYERS REWARD NON-STRIKING EMPLOYEES FOR

WORK DONE DURING A PROTECTED STRIKE?

The general principle remains that it constitutes unfair

discrimination to pay or remunerate non-striking employees for
not participating in a strike. Payments for other purposes must
be seen for what they are. The Labour Appeal Court in National
Union of Mineworkers v Cullinan Mine (Pty) Ltd (2021) 42 ILJ
785 (LAC) held that whilst trade unions may have recourse to
engage in industrial action in response to unilateral changes to
the contract of employment, so too may employers, respond
to their strike action with a unilateral exercise of managerial
prerogatives to temporarily alter the terms of the employment

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

contract. The Labour Appeal Court held that a decision to make
payment of an exceptional bonus to non-striking employees was
not objectionable provided that the measure was suitable and
proportional. In this case the employer’s conduct had not unfairly
discriminated against striking employees, as the non-striking
employees had not been advantaged for not exercising their right
to strike but for their attendance and outstanding performance
during the strike action.

IS AN EMPLOYER REQUIRED TO PAY EMPLOYEES DURING

A STRIKE?

No. The principle of “no work no pay” applies.

Should an employer provide accommodation or meals to

employees in the ordinary course of employment, the employer
is entitled to suspend such services at the commencement
of the strike. However, if the employees or their trade union
specifically request a continuation thereof, these services should
be continued, with the proviso that the employer can make the
appropriate deductions, if it has consent, once the strike is over,
or it would have to sue for such amounts.

CAN EMPLOYEES BE HELD IN CONTEMPT OF COURT FOR

DISOBEYING A LABOUR COURT INTERDICT ORDER?

Yes. If the employer has approached the Labour Court to interdict

an unprotected strike, or a protected strike which has turned
violent, and the striking employees continue to disobey the
interim court order after it has been granted, the employer may
approach the Labour Court on application to hold the employees
in contempt of court.

Contempt applications are generally done on an ex parte basis.

Employers are required to approach the court without the union
or its members being present, in order to convince the court that
it has grounds for contempt. The court will then make an order
calling on the relevant employees accused of acting in breach
of the interim order to convince the court that they are not
in contempt.

The requirements that must be satisfied by an employer in a

contempt application are

A court order must have been obtained

1
The order must be served on each employee
subject to contempt proceedings (in some
circumstances actual service is not necessary
2 and notification of order may be sufficient)

Non-compliance with the order

3
Non-compliance must be perpetrated in a wilful
and mala fide manner
4

It must be borne in mind that contempt applications require

proof of beyond reasonable doubt and carries the onus required
in criminal proceedings.
CAN TES EMPLOYEES STRIKE AT THE CLIENT’S PREMISES? WHAT IS THE OBJECT OF AN ULTIMATUM?

Yes, the CCMA may establish picketing rules that provide that The object of an ultimatum is to give striking employees the
temporary employment service (TES) employees can picket at the opportunity to reconsider their action. AMCU obo Rantho and
client’s premises. Others v SAMANCOR Western Chrome Mines (JA62/19) [2020]
ZALAC 46; (2020) 41 ILJ 2771 (LAC) (1 October 2020) (Samancor).
WHERE THERE IS NO BARGAINING COUNCIL AND THE PARTIES
BARGAIN AT PLANT LEVEL, IF THE EMPLOYER AND MAJORITY WHAT SHOULD AN ULTIMATUM CONTAIN?
TRADE UNION CONCLUDE A COLLECTIVE AGREEMENT, WILL
The Labour Appeal Court in Samancor emphasised that Item 6(2)
THAT AGREEMENT BIND THE EMPLOYEES WHO ARE NOT
of the Dismissal Code of Good Practice of Schedule 8 of the LRA
MEMBERS OF THAT TRADE UNION?
(Item 6(2)) provides that, prior to a dismissal of employees for their
Yes. In terms of the LRA a collective agreement will bind participation in unprotected strike action, the employer should
employees who are not members of a trade union, if those issue an ultimatum in clear and unambiguous terms that should
“employees are identified in the agreement; the agreement state what is required of the employees and what sanction will be
expressly binds the employees and the trade union has as its imposed if they do not comply with the ultimatum. The employees
members the majority of employees employed by the employer in should be allowed sufficient time to reflect on the ultimatum and to
the workplace.” It calls into debate what constitutes ‘a workplace’ respond to it, either by complying with it or rejecting it.
for the purpose of such extension. Recently the Constitutional
CAN AN EMPLOYER DISMISS AN EMPLOYEE WHO HAS
Court held that the term “workplace”, for the purposes of the
COMPLIED WITH AN ULTIMATUM?
LRA, has a “special statutory meaning” that focuses on “workers
as a collectivity rather than as isolated individuals” and where In Samancor, the Labour Appeal Court, held that where illegally
geographical location is de-emphasised. The Constitutional Court striking employees obey an ultimatum and return to work within the
held that the determination is whether the employer conducts stipulated time, the employer will not be entitled to dismiss them. To
two or more operations “that are independent of one another by hold otherwise would render the purpose of an ultimatum nugatory.
reason of their size, function or organisation.” An ultimatum (by the employer) is a waiver of the right to dismiss for
the period of its duration. Therefore, where there is compliance with
NOTE: The LRA prohibits a person from striking if that person
the ultimatum, the threatened dismissal cannot follow.
is bound by a collective agreement that prohibits a strike in
respect of the issue in dispute. CAN AN EMPLOYER DISMISS STRIKING EMPLOYEES WITHOUT
HEARING THE STRIKING EMPLOYEES?
WHAT IS A SECONDARY STRIKE?
In Modise & others v Steve’s Spar Blackheath [2000] 5 BLLR 496 (LAC)
A secondary strike is a strike held in support of a primary strike by -prior to dismissing its striking employees, the employer issued an
other employees against their employer. ultimatum giving its striking employees a chance to halt the strike as
a means of avoiding dismissal. Despite this the Labour Appeal Court
WHEN WILL A SECONDARY STRIKE BE PROTECTED?
found the dismissal was unfair because there had been no hearings.
A secondary strike cannot be protected unless it is in support of The Labour Appeal Court said that, irrespective of an ultimatum, no
a protected primary strike. In addition, more notice (seven days) employee should be fired before he has had a chance to be heard in
is required in respect of a secondary strike and the secondary terms of the universal principle of audi alteram partem.
strike must not have a disproportionate impact on the business
WHAT IS A REASONABLE TIME TO RETURN TO WORK?
of the secondary employer when having regard to the possible
impact the secondary strike could have on the business of the It is unreasonable to expect striking employees to resume work
primary employer. in too short a time. A reasonable time ultimately will depend on
the circumstances, but an ultimatum should afford the striking
In the recent constitutional court judgment of Association
employees “a proper opportunity for obtaining advice and taking a
of Mineworkers and Construction Union and Others v Anglo
rational decision as to what course of action to follow” (Transport
Gold Ashanti Limited t/a Anglo Gold Ashanti and Others [2021]
and Allied Workers Union of South Africa obo Ngedle and others v
ZACC 42, the court held that in balancing the potential harm
Unitrans Fuel and Chemical (Pty) Ltd [2016] 11 BLLR 1059 (CC)).
which may be caused to the secondary employer against the
potential harm, which may be caused to the primary employer, WHAT IS AN ADEQUATE COOLING-OFF PERIOD?
relevant factors must be considered. Such factors would include
In Transport and Allied Workers Union of South Africa obo Ngedle
inter alia the duration and form of the strike, the number of
and others v Unitrans Fuel and Chemical (Pty) Ltd [2016] 11 BLLR
employees involved, the membership of trade unions, the
1059 (CC), the Constitutional Court held that the period of time
conduct of the strikers, including whether the primary strike is
(period) conferred by the ultimatum must be considered in light
peaceful or violent, and the sector involved in the primary and
of the conditions prevailing at the time it was issued. The period
secondary strikes. The court further held that the prospects of
conferred by an ultimatum must be viewed in the context of whether
violence during a secondary strike would be a factor to consider
the ultimatum provided an adequate opportunity for employees
when assessing its reasonableness.
involved to engage with its contents and to respond accordingly.
This is in line with Item 6(2) encompassing the audi alteram partem
ULTIMATUM FAQS principle, which extends into the terrain of unprotected strike action.
WHAT IS AN ULTIMATUM? The importance of conferring an adequate “cooling-off” period
must be emphasised. An adequate cooling off period ensures that an
An ultimatum is a warning from an employer, informing its employer does not act in anger or with undue haste and that in turn
employees, that it intends to dismiss striking employees if they do the striking employees act rationally having been given the time and
not return to work within a specified time. opportunity to reflect.

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

WHAT IS THE “WORKER SOLIDARITY PRINCIPLE?” WHO CAN AN EMPLOYER LAWFULLY LOCK-OUT OF
THE WORKPLACE?
The “worker solidarity principle” allows employees to join a strike
even if they are not directly involved in the dispute (Transport and An employer may only lock-out employees who are party to a
Allied Workers Union of South Africa obo Ngedle and others v dispute and with whom the employer has attempted to conciliate.
Unitrans Fuel and Chemical (Pty) Ltd [2016] 11 BLLR 1059 (CC)).
NOTE: The Constitutional Court confirmed that an employer
cannot lock-out members of a trade union that were not a party
LOCK-OUT FAQS to a bargaining council where the dispute arose and who were
not part of the conciliation process.
WHAT IS A LOCK-OUT?

A lock-out is a mechanism available to an employer to exclude WHEN CAN AN EMPLOYER USE REPLACEMENT LABOUR?
employees from the workplace, in order to compel them to accept An employer may use replacement labour except in the following
a demand of the employer relating to a matter of mutual interest. circumstances:

WHAT IS THE DIFFERENCE BETWEEN A DEFENSIVE LOCK-OUT • Where there is “a protected strike and the whole or a part of
AND AN OFFENSIVE LOCK-OUT? the employer’s service has been designated a maintenance
service”
A defensive lock-out is where employers lockout the employees in • To perform the work of an employee who is locked out of the
response to a strike called by the employees and if it does so the employer’s workplace due to an offensive lock-out
employer may use replacement labour for the duration of
the strike. NOTE: Replacement labour is permissible when the lock-out is
in response to a strike.
An offensive lock-out is initiated by an employer, without a strike
first being called. The employer may not employ replacement
labour for the duration of the lock-out.
PICKETING FAQS
The Code issued by the Minister must be taken into
NOTE: These terms are not used in the LRA but it has become
account when interpreting or applying the LRA in respect
common to distinguish a defensive lock-out from an offensive
of any picket. The Picketing Regulations, effective
lock-out.
1 January 2019 are also applicable.
WHEN WILL A LOCK-OUT BE PROTECTED?
WHAT IS THE PURPOSE OF A PICKET?
As with strikes, an employer’s recourse to lock-out is subject to
In terms of the Code, the purpose of a picket is “to peacefully
limitations and requirements.
encourage non-striking employees and members of the
A lock-out will be protected if: public to oppose a lock-out or to support strikers involved in a
• A demand has been made of employees who are to be protected strike…
excluded from the employer’s workplace
MAY A PICKET TAKE PLACE IF THERE ARE NO PICKETING RULES?
• The dispute relates to a matter of mutual interest
• Employees are excluded from the employer’s workplace No. The trade union and employer or employer’s organisation
• The following procedural requirements are complied with: must conclude a collective agreement regulating picketing.

WHAT IF THE PARTIES HAVE NOT CONCLUDED A COLLECTIVE

The issue in dispute must be referred to NOTE: A picket will only be protected in terms of the LRA if it is
CCMA or Bargaining Council in support of a protected strike or in opposition to a lock-out
Referral
(unprotected or protected).

AGREEMENT REGULATING PICKETING?

Before a lock-out notice is issued:
No picket may take place. The parties must try to agree picketing
A. 30 days must lapse from when the dispute rules before the protected strike or lockout.
30 Days/ was received by the CCMA or Bargaining
Certificate Council; or WHAT IF THE PARTIES CANNOT AGREE PICKETING RULES?

B. A certificate must be issued stating that the The commissioner conciliating the dispute will try to get the
dispute remains unresolved parties to conclude a collective agreement regulating picketing
before issuing a certificate of non-resolution. If no such
(The first to occur of A or B) agreement is reached the commissioner must determine the rules
in accordance with published default rules at the same time as
issuing the certificate of non-resolution.

A written notice stipulating the commencement

Lock-out of the lock-out must be issued at least 48 hours
notice before the lock-out commences

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

WHAT WILL THE COMMISSIONER TAKE ACCOUNT OF WHEN MAY PICKETERS PREVENT CUSTOMERS FROM GAINING ACCESS
DETERMINING PICKETING RULES? TO THE EMPLOYER’S PREMISES?

The commissioner must take account of any relevant code of No, picketers may also not commit unlawful acts during
good practice, the particular circumstances of the workplace the picket.
or premises where it is intended that the right to picket will be
Picketers may also not intimidate any person or threaten to cause
exercised and representations made by the parties at conciliation.
damage to any property. Picketers may not incite violence, wear
WHERE CAN A PICKET BE HELD? masks nor have in their possession any dangerous weapons.

Picketing may take place outside the employer’s premises, WHAT IS THE ROLE OF POLICE DURING A PICKET?
unless the employer has agreed that it may take place inside
The police have the power to take measures to ensure the
the employer’s premises (the employer may not unreasonably
picket remains peaceful, unarmed and orderly. However, the
withhold permission to picket inside its premises).
Code indicates that the police may only intervene with picketers
The rules established by the commissioner may provide for in certain circumstances. Such circumstances include when
picketing on the employer’s premises if the commissioner is the police believe a person is in possession of a firearm or
satisfied that employer’s permission was unreasonably withheld. dangerous weapon or where picketer/s prevent the employer
from conducting its business or working. The police can also
The CCMA may establish picketing rules that provide for
interfere where picketers threaten or commit assault or damage
employees to picket in a place which “is owned or controlled
to property.
by a person other than the employer” (ie shopping centre
owner). However, that other person must have an opportunity ARE POLICE RESPONSIBLE FOR ENFORCING PICKETING RULES?
to make representations to the CCMA before picketing rules
were established.How will a commissioner determine if the No. Police are not responsible for enforcing a court order
employer’s permission was unreasonably withheld? interdicting a strike or picket unless the court orders them to do so.

In terms of the Code, the factors that will be taken into

account include:
ESSENTIAL/MAINTENANCE SERVICES FAQS
• The nature of the workplace WHAT ARE ESSENTIAL AND MAINTENANCE SERVICES?
• The situation of the workplace
An essential service is:
• Number of employee partaking in the picket inside the
• A service the interruption of which endangers life, personal
employer’s premises
safety or health of the whole or any part of the population
• Potential for violence
• The Parliamentary service
• Areas designated for the picket
• The South African Police Service
• Time and length of the picket
• Proposed movement of those participating in the picket A maintenance service is one whose interruption results
in material physical destruction to any working area, plant
• The trade unions proposals to control the picket
or machinery.
• The picketers’ conduct
WHAT IS THE SIGNIFICANCE OF A SERVICE BEING DESIGNATED
HOW MUST PICKETING RULES BE DISSEMINATED?
AN ESSENTIAL OR MAINTENANCE SERVICE?
Employers and trade unions must take measures to circulate the
Parties engaged in essential or maintenance services are
rules. Those measures may include placing the rules on notice
precluded from participating in a strike or a lock-out.
boards and giving copies to employees.

Employers must give copies of the picketing rules to appointed WHAT IS A MINIMUM SERVICE AGREEMENT?
representatives and managers on duty during the strike or lockout A minimum service agreement is an agreement relating to the
and to its private security company it contracted with. minimum services that must be maintained in a strike or lock-out.
Trade unions must give copies of the picketing rules to its The effect of the agreement is that employees who are employed
covenors and marshalls and make sure that they understand the outside of the agreed minimum services are permitted to strike,
rules. The trade unions must also ensure the picketers understand even though they are employed in a designated essential service
the rules. and the employer may lock-out those employees.

A panel of the essential services committee may direct parties to

HOW IS A PICKETING AGREEMENT CONCLUDED?
negotiate such agreement. If parties do not conclude a minimum
Parties are encouraged to enter into a picketing agreement before services agreement or the agreement is not ratified by the
a strike or picket commences. However, if no such agreement can essential services committee, the minimum services required to
be reached, the trade union or the employer can request that the be maintained may be determined by a panel appointed by the
CCMA assist in negotiating an agreement on the rules that should essential services committee.
apply to the picket. If the parties still cannot reach agreement the
CCMA must establish picketing rules.

STRIKE GUIDELINE | cliffedekkerhofmeyr.com

MARKET RECOGNITION
Our Employment Law team is externally praised for its depth of resources, capabilities and experience.

Chambers Global 2014–2021 ranked our Employment Law practice in Band 2 for employment. The Legal 500 EMEA 2020–2021
recommended us in Tier 1 for employment and in Tier 2 from 2009–2019.

The way we support and interact with our clients attracts significant external recognition.

Aadil Patel is the Practice Head of the Employment Law team, and the Joint Head of the Government & State-Owned Entities sector.
Chambers Global 2015–2021 ranked him in Band 2 for employment. The Legal 500 EMEA 2021 recommended Aadil as a leading individual
for employment and recommended him from 2012–2020.

The Legal 500 EMEA 2021 recommended Anli Bezuidenhout for employment.

Jose Jorge is the Head of the Consumer Goods, Services & Retail sector, and a director in our Employment Law practice.
The Legal 500 EMEA 2020–2021 recommended Jose for employment.

Fiona Leppan is the Joint Head of the Mining & Minerals sector, and a director in our Employment Law practice. Chambers Global
2018–2021 ranked her in Band 2 for employment. Chambers Global 2016–2017 ranked her in Band 3 for employment. The Legal 500 EMEA
2019–2021 recommended her as a leading individual for employment and recommended her from 2012–2018.

Chambers Global 2020–2021 ranked Gillian Lumb in Band 3 for employment. Chambers Global 2017–2019 ranked Gillian in Band 4 for
employment. The Legal 500 EMEA 2017–2018, 2020–2021 recommended her for employment.

Chambers Global 2021 ranked Imraan Mahomed in Band 2 for employment and in Band 3 from 2014–2020. The Legal 500 EMEA 2013–2018
and 2020–2021 recommended him for employment.

Hugo Pienaar is the Head of the Infrastructure, Logistics, and Transport sector, and a director in our Employment Law practice.
Chambers Global 2014–2021 ranked Hugo in Band 2 for employment. The Legal 500 EMEA 2014–2021 recommended him for employment.

Chambers Global 2020–2021 ranked Michael Yeates as an up and coming employment lawyer. The Legal 500 EMEA 2020 recommended
him for employment.

2020
Cliffe Dekker Hofmeyr
2020 1st by M&A Deal Flow.
2020 1st by BEE Deal Flow.
2022
2020 1st by BEE Deal Value.
2020 2nd by General Corporate
Finance Deal Flow.
TIER 1 2020 2nd by General Corporate
EMPLOYMENT Finance Deal Value.
TOP TIER FIRM
BAND 2 LAW 2020 3rd by M&A Deal Value.
2020 Catalyst Private Equity Deal
Employment Cliffe Dekker Hofmeyr
2020-2021 of the Year.

EMPLOYMENT LAW | cliffedekkerhofmeyr.com

OUR TEAM
For more information about our Employment Law practice and services in South Africa and Kenya, please contact:

Aadil Patel Bongani Masuku Njeri Wagacha

Practice Head Director Partner | Kenya
Director T +27 (0)11 562 1498 T +254 731 086 649
T +27 (0)11 562 1107 E bongani.masuku@cdhlegal.com +254 204 409 918
E aadil.patel@cdhlegal.com +254 710 560 114
E njeri.wagacha@cdhlegal.com

Anli Bezuidenhout Phetheni Nkuna Michael Yeates

Director Director Director
T +27 (0)21 481 6351 T +27 (0)11 562 1478 T +27 (0)11 562 1184
E anli.bezuidenhout@cdhlegal.com E phetheni.nkuna@cdhlegal.com E michael.yeates@cdhlegal.com

Jose Jorge Desmond Odhiambo Mohsina Chenia

Director Partner | Kenya Executive Consultant
T +27 (0)21 481 6319 T +254 731 086 649 T +27 (0)11 562 1299
E jose.jorge@cdhlegal.com +254 204 409 918 E mohsina.chenia@cdhlegal.com
+254 710 560 114
E desmond.odhiambo@cdhlegal.com

Fiona Leppan Hugo Pienaar Faan Coetzee

Director Director Executive Consultant
T +27 (0)11 562 1152 T +27 (0)11 562 1350 T +27 (0)11 562 1600
E fiona.leppan@cdhlegal.com E hugo.pienaar@cdhlegal.com E faan.coetzee@cdhlegal.com

Gillian Lumb Thabang Rapuleng Jean Ewang

Director Director Consultant
T +27 (0)21 481 6315 T +27 (0)11 562 1759 M +27 (0)73 909 1940
E gillian.lumb@cdhlegal.com E thabang.rapuleng@cdhlegal.com E jean.ewang@cdhlegal.com

Imraan Mahomed Hedda Schensema

Director Director
T +27 (0)11 562 1459 T +27 (0)11 562 1487
E imraan.mahomed@cdhlegal.com E hedda.schensema@cdhlegal.com

EMPLOYMENT LAW | cliffedekkerhofmeyr.com

OUR TEAM
For more information about our Employment Law practice and services in South Africa and Kenya, please contact:

Amy King Asma Cachalia Peter Mutema

Professional Support Lawyer Associate Associate | Kenya
T +27 (0)11 562 1744 T +27 (0)11 562 1333 T +254 731 086 649
E amy.king@cdhlegal.com E asma.cachalia@cdhlegal.com +254 204 409 918
+254 710 560 114
E peter.mutema@cdhlegal.com

Riola Kok Jaden Cramer Mayson Petla

Professional Support Lawyer Associate Associate
T +27 (0)11 562 1748 T +27 (0)11 562 1260 T +27 (0)11 562 1114
E riola.kok@cdhlegal.com E jaden.cramer@cdhlegal.com E mayson.petla@cdhlegal.com

Tamsanqa Mila Rizichi Kashero-Ondego Kgodisho Phashe

Senior Associate Associate | Kenya Associate
T +27 (0)11 562 1108 T +254 731 086 649 T +27 (0)11 562 1086
E tamsanqa.mila@cdhlegal.com T +254 204 409 918 E kgodisho.phashe@cdhlegal.com
T +254 710 560 114
E rizichi.kashero-ondego@cdhlegal.com

Dylan Bouchier Jordyne Löser Taryn York

Associate Associate Associate
T +27 (0)11 562 1045 T +27 (0)11 562 1479 T +27 (0)21 481 6314
E dylan.bouchier@cdhlegal.com E jordyne.loser@cdhlegal.com E taryn.york@cdhlegal.com

Abigail Butcher Christine Mugenyu

Associate Associate | Kenya
T +27 (0)11 562 1506 T +254 731 086 649
E abigail.butcher@cdhlegal.com T +254 204 409 918
T +254 710 560 114
E christine.mugenyu@cdhlegal.com

BBBEE STATUS: LEVEL ONE CONTRIBUTOR

Our BBBEE verification is one of several components of our transformation strategy and we continue to seek ways of improving it in a meaningful manner.

PLEASE NOTE
This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought
in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.

JOHANNESBURG
1 Protea Place, Sandton, Johannesburg, 2196. Private Bag X40, Benmore, 2010, South Africa. Dx 154 Randburg and Dx 42 Johannesburg.
T +27 (0)11 562 1000 F +27 (0)11 562 1111 E jhb@cdhlegal.com

CAPE TOWN
11 Buitengracht Street, Cape Town, 8001. PO Box 695, Cape Town, 8000, South Africa. Dx 5 Cape Town.
T +27 (0)21 481 6300 F +27 (0)21 481 6388 E ctn@cdhlegal.com

NAIROBI
Merchant Square, 3rd floor, Block D, Riverside Drive, Nairobi, Kenya. P.O. Box 22602-00505, Nairobi, Kenya.
T +254 731 086 649 | +254 204 409 918 | +254 710 560 114 E cdhkenya@cdhlegal.com

STELLENBOSCH
14 Louw Street, Stellenbosch Central, Stellenbosch, 7600.
T +27 (0)21 481 6400 E cdhstellenbosch@cdhlegal.com

©2022 1107/JAN

EMPLOYMENT LAW | cliffedekkerhofmeyr.com