The Department of Labour released the latest edition of its Annual Industrial Action Report on 11 August 2014. This report (covering 2013) makes for compelling reading says Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr.

“Despite the comprehensive legislative framework governing strike action, including a constitutionally entrenched right to strike, 52% of strikes during 2013 were unprotected. This means every second strike in the country did not comply with the requirements of the Labour Relations Act (LRA) in order to provide the strikers the statutory protection against inter alia dismissal or civil action. A strike is protected under the LRA where the trade union follows the procedure prescribed in section 64 of the LRA before embarking on the strike; and where  the issue in dispute or the subject of the strike is not prohibited in terms of section 65 of the same Act,” Botes explains.

Botes explains that  this is cause for concern when considering that the procedural requirements requiring compliance are not very onerous and there are but a handful of substantive limitations that will deprive the strike of its protected status.

“As the law stands at present, even violence that accompanies industrial action does not justify the strike losing its protected status. This means that in at least half the strikes trade unions fail, refuse or neglect to adhere to basic requirements to clothe their members with statutory protection against unfair dismissal or civil action.  Participation in unprotected industrial action generally constitutes misconduct on the part of the employee and exposes the worker to dismissal at the hands of the employer. Whilst not every act of participation will lead to the dismissal of the employees involved, employees are largely placed at the mercy of an employer where their work stoppage takes place outside the ambit of the LRA,” he explains.

“More worrying,” notes Botes, “is the fact that the percentage of unprotected strikes has increased from 2012 to 2013. The Department's Report indicate that during 2012, 54% of strikes were protected whilst this number fell by 6% in 2013. This may suggest a number of troublesome issues, including lack of regard for the law or the consequences of unlawful conduct, growing frustration and antipathy towards employers, or further support for the view that our collective bargaining processes and practices are in dire need of an overhaul.”

Botes explains that while the Department  of Labour repeats prior analyst predictions that low wages, rising income inequalities and tough economic conditions would have led to tough negotiations in 2013, this does not explain why South Africa saw an increase in the percentage of unprotected strikes.

“The outlook in respect of the factors influencing bargaining in 2013 arguably do not differ greatly in respect of negotiations for the remainder of 2014 or 2015 – we have not seen significant increases in wages, closing of the wage gap or relaxation of the economic conditions.

“It is worrisome that large groups of employees are being exposed to dismissal as result of their participation in unprotected industrial action where our focus surely ought to be on how we save jobs and limit or prevent unnecessary dismissals.

“The need for greater compliance with legal requirements before embarking on industrial action is emphasized when considering the alarming reports of other unlawful activities connected with strikes, whether protected or unprotected, which activities include assault, intimidation and causing damage to property,” he notes.

“Our efforts should be focused on gaining greater adherence to our legal framework pertaining to strikes in the hope of increasing legal compliance in those areas that are more difficult to police.  Allowing staff to strike in defiance of the LRA cannot assist in spreading the gospel of refraining from other unlawful conduct such as assaulting non-striking workers, intimidating customers from supporting a business or damaging cars, busses or the premises of employers,” Botes adds.