Strikes in the mining and transport industries have had severe implications for the economy and the international image of South Africa as a whole. Recently, strikes in the nursing, teaching, petroleum and municipal sectors have left not only businesses with losses, but severely inconvenienced the everyday man on the street.
"The effects of a strike have very real and damaging implications for business. We?ve only just seen the end of weeklong coal and gold sector strikes, which not only increased strain on Eskom, but the gold strike in particular was estimated to cost us $25 million a day in terms of lost production,' says Peter Winn, Managing Director for Manpower SA.
Winn continues, "With unemployment rising and the global economy still struggling, we?re seeing many countries implementing wage cuts, whereas in South Africa we?re undergoing a wave of strike action for wage increases. Ironically, these strikes will probably lead to a slightly weaker economy as well as hindered employment growth, which will have a negative effect for employees in the long run (South Africa?s GDP is already low [4,8% for 2011 Q1 as reported by StatsSA] whereas the annual wage growth rate is approximately double that of the GDP).'
With more strikes looming in the telecommunications and postal industries, businesses need to know where they stand in relation to legal strikes and the implications they have for business, what their rights are as an organisation and what they can do to minimise the impact of a strike.
The fundamental right to strike is entrenched in Section 23 of the Constitution. Employers enjoy a reciprocal right to lockout, which is also constitutionally entrenched. The Labour Relations Act 66 of 1995 (LRA) regulates the right to strike and lockout. The LRA defines a strike as a partial or complete concerted refusal to work or the retardation or obstruction of work by employees of the same employer for the purpose of remedying a grievance or resolving a dispute in respect of a matter of mutual interest.
Protected strikes and lock-outs are those which comply with the procedures as laid down in Chapter IV to the LRA, namely:
? the party to the dispute must first refer the dispute to the bargaining council with jurisdiction or if there is none, to the CCMA, for conciliation;
? if the dispute remains unresolved, a certificate of non-resolution must be obtained or alternatively, the party may wait for the statutory 30-day period to lapse;
? once the certificate has been obtained and/or the 30-day period has lapsed, the concerned party must then give the other party 48 hours notice of the strike or lockout.
The LRA extends strong protection to strikes and lockouts that comply with its provisions and guarantees immunity from the reaches of the civil law i.e. they do not constitute a breach of contract. An employer is not obliged to remunerate an employee for services not rendered during a strike and employees are protected from dismissal.
However, certain sanctions are imposed for non-compliance with its provisions, namely that the affected party can approach the Labour Court for an interdict or order restraining a strike or lockout, the Labour Court can also order the payment of just and equitable compensation in the circumstances, and participation in an unprotected strike may constitute a fair reason for dismissal.
Once a legal strike is in effect, it?s a lengthy process of legal wrangling to either come to an agreement with strikers or have the strike deemed as illegal or unfair.
"With the widespread public sector and industrial strikes, it?s important for private sector employers to be prepared for the impact of a strike should they find themselves faced with one,' says Winn.
"Not letting the strike take place is clearly the ideal situation and what every employer should aim for. This is why communication between employer and employee is one of the most fundamentally important aspects to always have in place. If you reach a point where employees are considering strike action, try to present them with the key reasons as to why it may not be in their best interest.'
"Create confidence in management by explaining the reasons for operational decisions and why they are important to the businesses survival. Explain to employees that harming the business can ultimately harm themselves through reduced business by negative association with the strike and explain the benefits of growth with a growing company. Remember that not all employees are always aligned to the strike, by winning over these employees you increase the chances of resolving issues without a strike, also emphasise the fact that a strike will negatively affect salaries.'
"Develop procedures to operate at reduced capacity with the least amount of impact to customers and as little as possible long term damage to the business. With all or most of your staff absent, consider the best ways of covering striking workers positions. Remember that though employing temporary staff to replace workers is unlawful, engaging individuals directly as employees on fixed-term contracts is permissible. You may also engage the services of a contractor for the supply of services rather than a supply of personnel. Last but not least, you can use personnel from less critical areas of the business to fill in for striking employees.'
"Remember though, keeping close ties with employees and their union leaders, open communication channels and an ear to the ground is often a way to circumvent strike action long before it has the chance to become a viable option in the minds of your employees. If it becomes absolutely unavoidable, prepare for it in advance to minimise the impact on business,' concludes Winn.
