LESSON 0

LEARNING UNIT NUMBER 0

TITLE OF LEARNING UNIT GENERAL INFORMATION AND MODULE

ORIENTATION
NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF- N/A

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT N/A

LINKED ACTIVITIES

NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where necessary/applicable)

DESCRIPTION
(Insert relevant icons)

1. INTRODUCTION

Welcome to the Labour Law module (LLW2602). We hope that you will find it interesting and
rewarding. We will do our best to help you succeed in this module. Please note that this
learning material only provides guidance so that you better understand your prescribed
textbook. You must therefore buy a copy of the prescribed book and refer to it.

2. THE PRESCRIBED TEXTBOOK

The prescribed textbook for this module is:

McGregor, M & Dekker, AH. 2021. Labour law rules! 4th edition.
Cape Town: Siber Ink.

You must purchase the prescribed book and work through it with the help of this
tutorial letter.

Please take note that only the following chapters of the prescribed textbook are
prescribed for this module:

• Chapter 11
• Chapter 12
 • Chapter 13
• Chapter 14
• Chapter 15
• Chapter 16
• Chapter 17

3. OVERVIEW OF THE PRESCRIBED TEXTBOOK

The prescribed textbook consists of four parts:

Part A : Individual labour law

Part B : Collective labour law
Part C : Social security law
Part D : Other labour-related legislation

PART A: INDIVIDUAL LABOUR LAW

Labour law deals with the legal consequences flowing from the employment
relationship. It regulates both the individual and the collective employment relationship.
The individual employment relationship is between one employer and one employee.

It is important to understand that the contract of employment forms the basis of the
relationship between the employer and the employee and that the principles of the law
of contract apply to this relationship. The law of contract assumes that the parties to a
contract are in an equal bargaining position. However, in the employment contract, the
employer is in a stronger bargaining position than the employee and can, to a large
extent, dictate the terms and conditions of employment. Hence, the principles of law of
contract had to be supplemented by labour laws designed to balance the interests of
employees and employers and ensure fairness in the employment relationship.

Part A focuses on the rights, duties and related provisions regulating the individual
employment relationship. The impact of the law of contract on the employment contract,
as a unique species of contract, is discussed, as well as the ways in which it is affected
by various labour statutes such as the EEA, BCEA and LRA. The BCEA deals with the
minimum conditions of service. The EEA is about discrimination and affirmative action
in the workplace. The LRA regulates unfair labour practices, dismissals and transfers
of businesses (this is only in as far as the Act relates to individual labour law).

Chapter 1 is an introduction to labour law.

Chapter 2 deals with the impact of the law of contract and the Constitution on labour
law. The Constitution, the law of contract and common law are sources for determining
the rights and duties of employers and employees flowing from the employment
relationship.

Chapter 3 focuses on the exclusive protection that labour laws offer employees. The
tests applied to determine the difference between an employee and an independent
contractor are discussed.

Chapter 4 concerns the Basic Conditions of Employment Act 75 of 1997 (BCEA), which
regulates minimum terms and conditions of employment, and the National Minimum
Wage Act 9 of 2018 (NMWA), which regulates the minimum wage.

Chapter 5 discusses the Employment Equity Act 55 of 1998 (EEA), which prohibits
unfair discrimination in the workplace and regulates the implementation of affirmative-
action measures.

Chapter 6 focuses on the Labour Relations Act 66 of 1995 (LRA), but only in so far as
unfair labour practices (unfair acts or omissions by an employer against an individual
employee) are concerned. Unfair labour practices are discussed separately from
dismissal because they occur during actual employment.

Chapter 7 looks at the different ways of terminating a contract of employment. The less
confrontational ways (such as resignation, retirement, death and insolvency) are briefly
discussed. The focus is on the confrontational form of termination, namely dismissal.
The LRA allows dismissal for three reasons, namely:

(1) misconduct
(2) incapacity and
(3) operational reasons

Dismissal for misconduct or “fault” dismissal implies that the employee is guilty of
misbehaving and is then dismissed. Dismissal for incapacity and operational reasons
are termed “no-fault” dismissals because the employee is regarded as a “victim” or is
caught in circumstances beyond his or her control that warrant dismissal. Examples are
an employee who cannot perform the required work because of a lack of skills or injury,
or when he or she is retrenched because of poor economic conditions. The focus of
chapter 7 is on when the conduct of the employer will be regarded as dismissal of the
employee. If such conduct does constitute dismissal, the next step is to determine
whether or not the dismissal was automatically unfair (chapter 8) and, if not, whether it
was fair or unfair based on either misconduct, incapacity or operational reasons
(chapter 9). The type of dismissal will determine which requirements apply to establish
whether or not it was both substantively and procedurally fair. In chapter 10, the transfer
of a business as a going concern is discussed.

PART B: COLLECTIVE LABOUR LAW

The power play between employers and employees is best displayed when they
engage in collective bargaining. The LRA and other labour legislation lay down basic
rights, duties and remedies to ensure fairness in the employment relationship. Matters
relating to the rights of employees are called “rights issues”. When it comes to creating
new terms and conditions of employment ("interest issues" or "matters of mutual
interest") or changing existing terms, there is no legislation to regulate it because the
parties themselves know best how to solve these issues. For example, a court cannot
determine an annual increase for employees.

The LRA also regulates collective labour law. It recognises the importance of collective
bargaining and supports it by protecting the rights of employees and employers to form
and join organisations of their choice and to participate in the activities of those
organisations. The LRA regulates the registration of these organisations. It further
creates bargaining forums, guarantees the right to freedom of association, and
regulates the right to freedom of association and organisational rights. Lastly, it
regulates industrial action for both employees and employers.

Part B deals with collective labour law, which has an impact on the employment
relationship. It provides an overview of what collective bargaining entails and the
importance of protecting workers’ right to freedom of association. Collective
agreements and collective bargaining parties are discussed, as well as workplace
forums. Strikes, lockouts, pickets and protest action are important tools both employers
and employees have and are discussed in detail.

Part B consists of chapters 11, 12, 13, 14, 15, 16 and 17. Chapter 11 deals with the
foundations of collective labour law, namely freedom of association and bargaining
agents. Chapter 12 deals with collective bargaining and chapter 13 investigates the
organisational rights of trade unions. Chapter 14 concerns workplace forums and
chapter 15 is about strikes and lockouts. The consequences of protected and
unprotected strikes and lockouts are discussed in chapter 16. Chapter 17 deals with
pickets and protest action.

PART C: SOCIAL SECURITY LAW

Part C covers social security law. It gives an overview of the South African social safety
net and its shortcomings. The emphasis is on social insurance and two aspects of it,
namely: (i) measures to prevent people becoming destitute and reliant on systems such
as the OHSA and MHSA; and (ii) measures to assist workers who need monetary
support such as the COIDA and UIA. The focus of this part is on social insurance
matters that influence the employment relationship. The chapter discusses social
insurance legislation aimed at:

 the prevention of occupational injuries and diseases (in terms of the Occupational
Health and Safety Act 85 of 1993 [OHSA] and the Mine Health and Safety Act 29
of 1996 [MHSA]), and compensation for employees who have suffered
occupational injuries or have contracted diseases or have lost their employment
(COIDA, the Occupational Diseases in Mines and Works Act 78 of 1973
[ODMWA] and the Unemployment Insurance Act 63 of 2001 [UIA]).
 PART D: OTHER LABOUR LEGISLATION

Part D gives an overview of and discusses various lesser known statutes affecting the
employment relationship. Although they can be regarded as non-core labour legislation,
these statutes play an important role in labour law. It is important to be aware of them
and to know why they are important in the workplace. They include, for example, the
Skills Development Act (SDA), the Employment Services Act (ESA) and the Protection
of Personal Information Act (POPI Act).

Reminder: Please read the prescribed textbook and follow the guidelines in this learning
material.
 LESSON 1
LEARNING UNIT NUMBER
1
TITLE OF LEARNING UNIT FREEDOM OF ASSOCIATION AND THE ROLE OF
BARGAINING AGENTS
NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF-

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT
LINKED ACTIVITIES

NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)

INTRODUCTION

Study paragraph 1 of chapter 11 in the prescribed book.

The right to freedom of association is important in collective bargaining. Freedom of

association means that people have the right to associate with others to protect their
common interests. In the workplace, freedom of association entails the right of workers
to form and join trade unions of their choice and to participate in their lawful activities.
Employers can also form and join employer organisations. Freedom of association is in
line with the African (Sepedi) idioms such as ‘motho ke motho, ka batho’ (you are,
because of others); ‘bobedi bo bolaya noga’ (It is easier for two or more people to
conquer the enemy) and ‘kopano ke matla’ (unity is power).

LEARNING OUTCOMES

After working through this learning unit, you should be able to:

• recognise and comment on employees’ and employers’ right to freedom of association

in terms of not only international, regional and sub-regional law, but also the Constitution
and the LRA
• comment on the distinction between closed shop agreements and agency shop
agreements and discuss how they limit employees’ right to freedom of association

KEY CONCEPT
• freedom of association
PRESCRIBED MATERIAL
• Study chapter 11 of the prescribed textbook.
• See the recommended material on page 311 of the prescribed book.

IMPORTANT MATTERS TO UNDERSTAND

(a) Historical background to freedom of association and trade unionism in South

Africa
Study paragraph 2 of chapter 11 in the prescribed textbook.

It is important to consider the history of South Africa to understand workers’ right to freedom of
association and trade unionism. For a long time, no freedom of contract, fairness or trade
unionism existed in this country. British artisans who came to South Africa in the latter part of
the nineteenth century brought with them the concept of trade unionism. At first, black workers
were not allowed to form trade unions because their right to freedom of association was
restricted through legislation, but the democratic dispensation brought changes through the
Constitution (which protects the right to freedom of association) and the LRA (which gives effect
to this right).

South Africa is one of many countries supporting the United Nations Global Compact (UNGC).
The UNGC is the world’s largest corporate social responsibility imitative and has thousands of
corporate participants in member countries. It requires companies to embrace, support and
enact, within their sphere of influence, a set of core values (principles) regarding human rights,
labour standards, the environment, and anti-corruption. The UNGC Global Compact Principle
3 outlines freedom of association and the right to collective bargaining. These principles are
derived from international instruments such as the Universal Declaration of Human Rights and
the ILO’s Declaration on Fundamental Principles and Rights at Work. They are also in line with
the provisions of the Constitution of the Republic of South Africa. Over 200 South African
companies (employers) are members of this initiative and subscribe to its principles.

(b) Freedom of association

Study paragraph 3 of chapter 11 in the prescribed book.

Freedom of association means that people have the right to associate with others for the
purpose of protecting their common interests.

(c) Protection in terms of international, regional and sub-regional law

Study paragraph 4 of chapter 11 in the prescribed book.

Regionally and sub-regionally, the right to freedom of association is protected by the African
Charter on Human and People’s Rights and the Southern African Development Community:
Charter of Fundamental Social Rights. Internationally, this right is protected in terms of ILO
Conventions 87 of 1948 and 98 of 1949.

(d) Protection under the Constitution

Study paragraph 5 of chapter 11 in the prescribed book.

The general right to freedom of association is protected in terms of section 18 of the
Constitution. Section 23 of the Constitution grants this right to especially employees, trade
unions, employers and employer organisations.

(e) Protection in terms of the LRA

Study paragraph 6 of chapter 11 in the prescribed book.

Sections 4, 5, 6 and 7 of the LRA give effect to the right to freedom of association for both
employees and employers. Note that senior managerial employees also have the right to
freedom of association.

(f) Trade union security arrangements

Study paragraph 7 of chapter 11 in the prescribed book.

Trade union security arrangements refer to closed shop agreements and agency shop
agreements. Study the two types of agreements in paragraphs 7.1 and 7.2 of chapter 11 of the
prescribed book.

The Constitution and the LRA also provide for the limitation of the right to freedom of association
by, amongst other things, allowing trade union security arrangements (section 23(6) of the
Constitution and sections 25 and 26 of the LRA). This limitation infringes on the right to freedom
of association but is justified in terms of section 36 of the Constitution.

An agency shop agreement requires the employer to deduct an agreed agency fee from the
wages of employees who are identified in the agreement and who are not members of the trade
union that is party to the agreement. A closed shop agreement, on the other hand, requires
all employees covered by the agreement to be members of the trade union that is party to the
agreement.

REFLECTIVE QUESTIONS

Is it fair to employees who do not want to be members of trade unions to be bound by

these agreements? Explain why you think so.
List some important court decisions that dealt with freedom of association.
In which ways do close shop agreements affect trade unions’ ability to attract members?
Do you think the UNGC Principles add value to workers and their rights?

ACTIVITY 1

Read the following set of facts and answer the question below.

BB (Pty) Ltd concluded an agency shop agreement with BB Union, a majority trade union within
the workplace. John, who is an employee of BB (Pty) Ltd and not a member of BB Union,
notices a monthly deduction of R50 from his salary. On enquiry, he is informed that it is an
agency fee. John is dissatisfied and wants to stop the deduction because he didn’t authorised
it.
Advise John on whether or not he will succeed in stopping the agency fee deduction from his
salary.

FEEDBACK ON ACTIVITY 1

This is an agency shop agreement concluded by a majority union and an employer in terms of
which the employer must deduct the agreed agency fee from employees identified in the
agreement subject to the following:

• The employer may only deduct from non-members who are eligible for membership.
Conscientious objectors to the policies of the union (on religious or moral grounds) must
pay the fee, which is to be paid into a fund administered by the Department of
Employment and Labour.
• The fee of non-members cannot be higher than the subscription fee payable by
members of the majority union.
• The employer can deduct agency fees from the wages of employees without their
authorisation. Therefore, John will not succeed in his claim.

CONCLUSION

The right to freedom of association is fundamental to effective collective bargaining. This allows
workers and employers to understand and work towards common interests. The formation and
participation of trade unions and employer organisations, as well as the UNGC principles, are
vital to collective bargaining.
 LESSON 02
LEARNING UNIT NUMBER
2
TITLE OF LEARNING UNIT COLLECTIVE BARGAINING

NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF- 1

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT 1
LINKED ACTIVITIES

NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)
INTRODUCTION

Study paragraph 1 of chapter 12 in the prescribed textbook.

The concept of collective bargaining implies willingness on the part of both parties (employers
and employees represented by trade unions) to not only listen to and consider representations
made by the other party, but also abandon fixed positions to find a common ground and reach
an agreement, if possible. It is called collective bargaining because employees (collectively)
represented by a trade union (and not as individuals) negotiate with the employer or employer
organisation.

Labour law and ubuntu both encourage a sound relationship based on accommodating
opposing views and conciliating competing interests. Both adopt an inclusive approach in terms
of which negotiations take place and a decision is reached. Such a horizontal approach means
that decisions are not made at the top. Collective bargaining is based on freedom of association
discussed in the previous study unit, which is an important principle of ubuntu, which
encourages people to work together because, when they do, their strength is greater and their
voice is stronger.

The purpose of collective bargaining is to reach consensus about employees’ conditions of

employment and to formalise them by means of a collective agreement. A collective agreement
regulates the rights and duties agreed upon by the parties. It promotes peace and reduces
conflict in the workplace because once an agreement has been reached, it must be adhered to
for as long as it is valid.
LEARNING OUTCOMES

After working through this learning unit, you should be able to:

• explain and apply the concept of collective bargaining

• list examples of employers’ refusal to bargain
• define a collective agreement
• explain the binding effect of collective agreements in general and those concluded in a
bargaining council
• describe the role of bargaining councils and statutory councils
• explain how collective agreements are extended
• discuss the dispute resolution process for collective agreements

PRESCRIBED MATERIAL
• Study chapter 12 of the prescribed textbook.
• See the recommended material on pages 311 and 312 of the prescribed textbook.

IMPORTANT MATTERS TO UNDERSTAND

(a) The duty to bargain

Study paragraph 2 of chapter 12 in the prescribed book.

Although he Constitution provides for the right to engage in collective bargaining (section 23(5)),
there is no duty (obligation) to bargain in South Africa. The LRA adopted a voluntary approach
to collective bargaining but encourages it by, amongst other things, granting organisational
rights, recognising union security arrangements (discussed in the previous study unit) for trade
unions, and allowing parties to establish bargaining structures (for example, bargaining
councils). The employer’s refusal to bargain can result in industrial action (for example, a strike)
by employees to persuade the employer to bargain. In terms of section 64(2) of the LRA, the
refusal to bargain includes the following:

• the employer’s refusal to recognise a trade union as a bargaining agent

• the employer’s refusal to establish a bargaining council
• the employer’s withdrawal of the recognition of a collective bargaining agent
• the employer’s resignation as a party to a bargaining council, and
• the employer disputing appropriate bargaining units, levels and topics

REFLECTIVE QUESTIONS

Do you think the law must impose a duty to bargain in South Africa? Explain why you
think so.
Reflect on the concept of collective bargaining and the role it plays in facilitating
negotiations between employers and employees.
Provide examples of how collective bargaining takes place in South Africa. Give
examples from real South African scenarios.
Consider how effective current dispute resolution processes are in resolving conflict
arising from collective agreements.
(b) Bargaining Levels

Study paragraph 3 of chapter 12 in the prescribed book.

Bargaining can take place at the following levels:

Table 1: Levels of bargaining

Bargaining level Explanation

Plant level This takes place between employees (represented by a trade
union) and their employer at a specific plant or factory.
Sector level This takes place in a specific sector of the economy and is
linked to a specific geographical area.

(c) Trade unions

Study paragraph 4 of chapter 12 of the prescribed book.

A trade union is defined by the LRA as “an association of employees whose principal purpose
is to regulate the relations between an employer, employers or employers’ organisations and
employees”. Although registration is not a requirement for a trade union to exist; the LRA
provides some benefits (for example, organisational rights) to registered trade unions.

(d) Statutory bargaining structures

Study paragraph 5 of chapter 12 of the prescribed book.

(i) Bargaining councils

Study paragraph 5.1 in chapter 12 of the prescribed book.

The parties (registered trade unions and employers' organisations) to the council
may apply to the Registrar of Labour Relations for registration by submitting the
documents prescribed by the LRA (see section 5.1.4 of chapter 12 of the prescribed
textbook). The powers and functions of a bargaining council include the authority to
conclude collective agreements, enforce such agreements, and prevent and
resolve disputes (see section 5.1.5 of chapter 12 of the prescribed book for other
powers and functions).

(ii) Statutory councils

Study paragraph 5.2 under chapter 12 of the prescribed book.

(e) Collective agreements

Study paragraph 6 under chapter 12 of the prescribed book.

At the end of a successful collective bargaining process, a collective agreement is concluded

between the employer and one or more trade unions. A collective agreement regulates the
terms and conditions of employment on which the parties have agreed. The binding effect of a
collective agreement concluded between a trade union and an employer is provided for in
section 23 of the LRA. Collective agreements vary according to the contracts of employment
concluded between an employee and an employer who are both bound by the agreement. The
agreement may be extended to non-parties to the agreement if the employees are identified in
the agreement; the agreement expressly binds employees; and the trade union represents the
majority of the employees in the workplace.

(f) Collective agreements concluded in a bargaining council

Study paragraph 7 of chapter 12 of the prescribed book.

As stated above, the main function of a bargaining council is to negotiate and conclude
collective agreements on behalf of members. These agreements regulate terms and conditions
of employment or any other matter of mutual interest between the parties. The binding effect of
collective agreements concluded in a bargaining council is provided for in section 31 of the
LRA. These agreements may also be extended in terms of section 32 of the LRA.

ACTIVITY 1

Abner’s contract of employment stipulates that he is entitled to 20 days’ sick leave per annum.
A collective agreement concluded at the bargaining council of the sector in which Abner works,
provides that employees are entitled to 23 days’ sick leave per annum. Discuss whether Abner
will be entitled to 20 or 23 days’ sick leave per annum.

FEEDBACK ON ACTIVITY 1

You must discuss the legal effects of a collective agreement. Abner will be entitled to 23 days’
sick leave as provided by the collective agreement concluded at the bargaining council.

CONCLUSION

Collective bargaining is a collaborative process according to which employers (or employers’

organisations) and employees (represented by trade unions) negotiate and reach agreements
on matters of mutual interest. Collective agreements promote harmony in the workplace and
ensure that agreements are enforced to the benefit of both parties.
 LESSON 03
LEARNING UNIT NUMBER 3

TITLE OF LEARNING UNIT ORGANISATIONAL RIGHTS OF TRADE UNIONS

NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF- 1

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT
LINKED ACTIVITIES

NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)

INTRODUCTION

Study paragraph 1 of chapter 13 of the prescribed book.

The purpose of organisational rights is to enable trade unions to be more effective in their
collective bargaining. Organisational rights are granted to only trade unions that are registered
and have a certain level of representation in the workplace.

LEARNING OUTCOMES

After working through this learning unit, you should be able to:

• list and explain organisational rights that registered trade unions may acquire, and the
level of representation required to acquire them
• list and explain different methods of acquiring organisational rights
• explain how a workplace is determined and
• understand the dispute resolution process relating to organisational rights

KEY CONCEPTS

• organisational right
• workplace
• strike
• bargaining council
PRESCRIBED MATERIAL
• Study chapter 13 of the prescribed book.
• See the recommended material on page 312 of the prescribed book.

IMPORTANT MATTERS TO UNDERSTAND

(a) Which organisational rights can be obtained?

Study paragraph 2 of chapter 13 of the prescribed book.

The LRA provides for the following organisational rights:

Organisational right
Access to premises of the employer (workplace)
Deduction of trade union membership fees (subscription fees)
Election of trade union representatives (shop stewards)
Leave (time-off) for trade union activities
Disclosure of information

(b) What constitutes a workplace?

Study paragraph 3 of chapter 13 in the prescribed textbook.

Section 213 of the LRA defines a workplace. This definition determines what a workplace is,
especially when an employer has branches in different provinces.

(c) What is a union’s level of representation?

Study paragraph 4 of chapter 13 in the prescribed textbook.

A trade union can either have majority representation or be sufficiently representative. Note
that a trade union with majority representation in the workplace is, in principle, entitled to all five
organisational rights, whereas a sufficiently representative trade union enjoys only three of
them.

A majority trade union represents at least 51% of all employees in the workplace. Although the
LRA does not define “sufficiently representative”, it gives guidelines (a union that represents
approximately 30% of the employees in the workplace).

(d) How can organisational rights be acquired?

Study paragraph 5 of chapter 13 of the prescribed book.

The following are methods according to which a trade union may acquire organisational
rights:

Method
Collective agreement
Membership of a bargaining council
Strike action
Section-21 procedure

(e) Section-21 process to obtain organisational rights

Study paragraph 6 of chapter 13 of the prescribed book.

Section 21 of the LRA contains a procedure or process that must be followed if an employer
refuses to grant a union organisational rights. The process is aimed at bringing the two parties
together. You should understand this process.

CONCLUSION

Organisational rights are important to effective collective bargaining. This learning unit has
outlined the types of organisational rights available to trade unions. You must understand the
level of representation to acquire these rights and the way to acquire them. You must also know
how disputes about organisational rights are resolved.
 LESSON 04
LEARNING UNIT NUMBER
4
TITLE OF LEARNING UNIT WORKPLACE FORUMS

NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF- 1

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT
LINKED ACTIVITIES

NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)

INTRODUCTION

Study paragraph 1 of chapter 14 in the prescribed book.

Workplace forums were introduced so that all employees can participate in decision-making in
the workplace, irrespective of their trade union membership. They deal with non-wage matters,
separate from the collective bargaining system, which is adversarial in nature.

Labour law and ubuntu require an inclusive approach of consultation and joint decision-making.
They both encourage fairness and transparency in decisions. Workplace forums were
introduced to encourage this approach within the workplace. The main functions of workplace
forums are consultation and joint decision-making. ‘Dikgoro’, according to African practice,
serve as forums for consultation and joint decision-making when important decisions affecting
the community are taken. It means that not all decisions are made at the top, but that all parties
are involved. This approach humanises the law because decisions are based on consensus. It
also encourages and allows for a transparent and accommodative way of dealing with matters.

LEARNING OUTCOMES

After working through this learning unit, you should be able to:

• distinguish between workplace forums and trade unions

• explain how workplace forums are established
• describe the main functions of workplace forums
• comment on the organisational rights for workplace forums
KEY CONCEPTS

• trade union
• workplace forum
• joint decision-making
•
PRESCRIBED MATERIAL

• Study chapter 14 of the prescribed book.

• See the recommended material on page 312 of the prescribed textbook.

IMPORTANT MATTERS TO UNDERSTAND

(a) The differences between a union and a workplace forum

Study paragraph 2 of chapter 14 in the prescribed book.

Trade union Workplace forum

It is a juristic body It is an in-house institution and not a juristic body

It deals with both wage and It deals with non-wage related matters only
non-wage related matters
It can embark on industrial It cannot embark on industrial action
action

(b) Formation of a workplace forum

Study paragraph 3 of chapter 14 of the prescribed textbook.

A workplace forum can be established in any workplace where there are more than 100
employees. Employees, in this context, exclude senior managerial employees. Take note of
the meaning of employee for purposes of workplace forums defined in section 78(a) of the LRA.

(c) Procedure for formation

Study paragraph 4 of chapter 14 in the prescribed textbook.

There are two procedures for establishing workplace forums. They can be established either
through a collective agreement or through the intervention of the CCMA.

(d) Meetings of a workplace forum

Study paragraph 5 of chapter 14 of the prescribed textbook.

Section 83 of the LRA requires a forum to meet regularly to ensure its effective functioning. The
meetings should be held during working hours at a time and place agreed upon by both the
forum and the employer.
(e) Functions of workplace forums

Study these matters in paragraph 6 of chapter 14 of the prescribed textbook.

A workplace forum has the following functions:

• It promotes the interests of all employees in the workplace.

• It enhances efficiency in the workplace.
• The forum can consult with the employer on certain matters.
• Employees and employers jointly make decisions on specific matters.

The following is a summary of the consultation and the joint decision-making function:

Consultation The forum makes representations and alternative proposals regarding a

certain matter to the employer. The employer must consider the
proposals and if they are rejected, the employer must provide reasons.
Matters for consultation:

• restructuring of the workplace (for example, the introduction of new

technology)
• changes in the organisation of work
• the total or partial closure of the plant
• mergers and transfers of ownership if they affect employees
• the retrenchment of employees
• exemptions from a collective agreement or law
• job grading
• criteria for merit increases or the payment of discretionary bonuses
• education and training
• product development plans
• the promotion of exports
Joint The employer must consult and reach consensus with the workplace
decision- forum.
making
Matters for joint decision-making:

• disciplinary codes and procedures

• proper regulation of the workplace
• measures to protect and advance persons disadvantaged by unfair
discrimination
• changes of employer representatives on boards of employer-
controlled schemes with regard to social benefits

Study paragraph 6.3 of chapter 14 regarding workplace forums and disclosure of information.
Also study paragraph 6.4 of chapter 14 regarding organisational rights of workplace forums.

ACTIVITY 1

Draw a distinction between consultation and joint decision-making as functions of workplace

forums.
FEEDBACK ON ACTIVITY 1

Study paragraphs 6.1 and 6.2 of chapter 14 in the prescribed book.

CONCLUSION

Workplace forums encourage employee participation in the workplace and are opportunities for
employers and employees to cooperate in a meaningful way. You must be able to distinguish
between workplace forums and trade unions. Dispute resolution processes regarding
workplace forums have also been discussed.
 LESSON 05
LEARNING UNIT NUMBER
5
TITLE OF LEARNING UNIT STRIKES AND LOCKOUTS

NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF-

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT
LINKED ACTIVITIES

NUMBER OF E-TUTOR
ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)
INTRODUCTION

Study paragraph 1 of chapter 15 of the prescribed textbook.

The aim of collective bargaining is to negotiate and conclude a collective agreement. If no

agreement can be reached after the prescribed process have been followed, one party may
decide on industrial action to exert pressure on the other party. This learning unit discusses
industrial action, which can take the form of either strikes or secondary strikes by employees
or lockouts by employers. The use of power may sound inhumane and contrary to ubuntu.
Before any form of industrial action may take place, procedural requirements must be met to
ensure fairness and justice. If the requirements are not met, then the action will not be protected
and will have negative consequences (which will be discussed in the next learning unit).

Industrial action through strikes and lockouts is an integral part of collective bargaining.
Industrial action should, however, be used as measures of last resort. Employees resort to
strikes to support their demands and defend their employment-related interests. Employers, on
the other hand, resort to lockouts to support their demands.

Industrial action is recognised in South Africa because the right to strike is entrenched in the
Constitution. Although the Constitution guarantees every worker the right to strike, it does not
grant employers the right to lock out employees as this right is implied in the express protection
of the constitutional right to bargain collectively. The LRA gives effect to it by providing that
every employee has the right to strike and that every employer has recourse to lockout.
Furthermore, we can add the importance of the United Nations Global Compact (UNGC
Principles). Did you know that Unisa has signed this important compact? This global compact
is of great significance to students, specifically Principle 3, which states that:
Businesses should uphold the freedom of association and the effective recognition of
the right to collective bargaining;” The Ten Principles | UN Global Compact

The Ten Principles | UN Global Compact

You must be able to distinguish between the different types of industrial action and must know
when industrial action is protected in terms of the LRA.

LEARNING OUTCOMES

After working through this learning unit, you should be able to:

• define the concepts of strike, lockout and secondary strike

• comment on and describe procedural requirements for a protected strike and lockout
• explain “matters of mutual interest” for the purposes of strikes and lockouts
• reflect on and explain the limitations or prohibitions related to strikes and lockouts
• recognise and explain the procedural requirements for a protected secondary strike

KEY CONCEPTS

• strike
• primary strike
• secondary strike
• lock-out

PRESCRIBED MATERIAL

• Study chapter 15 of the prescribed textbook.

• See the recommended material on pages 312 and 313 of the prescribed textbook.

IMPORTANT MATTERS TO UNDERSTAND

(a) Legislative protection of the right to strike and lockout

Study paragraph 2 of chapter 15 of the prescribed textbook.

Even though section 23 of the Constitution protects the right of employees to strike, the
Constitution does not make provision for employers’ right to lock out. The LRA gives effect to
employees’ right to strike and employers’ right to lock out (section 64 of the LRA).

(b) Protected industrial action (strikes and lockouts)

Requirement 1: Definition

Study the definitions of these two concepts in paragraphs 4 and 5 of chapter 15 of the
prescribed textbook.

Each definition has important elements that you should know. Study them in paragraphs
4.2 to 4.5 of chapter 15 in the prescribed textbook. The three elements of a strike are:
 Refusal to work The refusal can be partial or complete or involve
the retardation or obstruction of work. Work
includes overtime work.

by persons employed by the same or Seeing that the right to strike cannot be exercised
different employers individually, a strike must be a collective action.

for remedying a grievance or resolving If there is no dispute of mutual interest between

a dispute in respect of any matter of the parties, an action does not comply with the
mutual interest between an employer definition.
and an employee.

Refusal The refusal can be partial or complete or involve the

to work
retardation or obstruction of work. Work includes overtime
work.

by persons
The right to strike cannot be exercised individually; any
employed
by the action must be collective.
same or

for If there is no dispute of mutual interest between the

remedy- parties, the action will not comply with the definition.
ing a
grievance

In line with ubuntu, collective labour law promotes oneness when it comes to strikes since an
individual employee is not allowed to engage in strike action. This emanates from the Sepedi
expression that ‘kopano ke matla’ (unity is power). The right to strike can therefore be exercised
only collectively.

Study the two elements of a lockout in paragraphs 5.1 and 5.2 of chapter 15 in the prescribed
book. The two elements of a lockout are as follows:

The exclusion of employees from the It is not a lockout if the employer excludes an
employer’s workplace individual employee from the workplace.

for the purpose of compelling them to If the purpose is not to compel employees to
accept a demand in respect of any accept a demand in respect of a matter of
matter of mutual interest. mutual interest, the action will not comply
with the definition.
ACTIVITY 1

Read the following set of facts and decide whether or not the actions fall within the first
element of the definition of a strike:

• Members of Together We Win Union working in the packaging department of Aroma

Soaps embark on an action in terms of which they report for duty every morning but
refuse to work during their lunch hour.

• Employees in the dispatch section of Cheap Cements lock the doors to their section
and refuse to dispatch any cement for a few hours every day. Despite that, they still
pack the cement bags in their section during this time.

FEEDBACK ON ACTIVITY 1

The actions in the examples above comply with the first element of a strike. Both constitute
partial refusals to work. In the first case, the employees refuse to work their full hours. In the
second case, they refuse to perform all the tasks allocated to them. Although these actions
comply with the first element of the definition of a strike, they are not strikes. To be regarded
as strikes, they must also comply with the other elements of the definition.

Requirement 3: Prohibitions or limitations on strikes and lockouts

Study paragraph 6 of chapter 15 in the prescribed textbook.

In terms of the LRA, strikes and lockouts are prohibited in the following circumstances:

striking or locking out is prohibited in a If the parties agreed that they would not engage
collective agreement in industrial action on a certain issue, they are
not allowed to do so.
arbitration is prescribed by agreement Parties are bound by any agreement in terms of
which the particular issue should be arbitrated.
the parties have a right to refer a dispute If a party has the right to refer the dispute to
to arbitration or adjudication arbitration or to the Labour Court for
adjudication, that party may not resort to a strike
or lockout to resolve the dispute.
employees who work in essential or Employees who provide essential and
maintenance services. Make sure you maintenance services are prohibited from
understand this important limitation striking, unless an agreement regarding
discussed in paragraph 6.5 of your minimum services has been concluded.
prescribed textbook.

an award, agreement, or determination No one may take part in a strike or a lockout if

regulates the issue he or she is bound by an arbitration award or an
agreement or a determination by the Minister of
Labour that regulates the issue.
Requirement 4: The action should comply with procedural requirements for strikes
and lockouts

Study paragraph 7 of chapter 15 in the prescribed textbook in this regard.

Through the procedural requirements, the LRA lays down the rules for fair play in collective
bargaining. A strike or lockout will be protected if these requirements have been met, except in
a few exceptional cases that will be discussed later.

Take note that the LRA requires all registered trade unions to have in their constitutions a
provision dealing with a secret ballot to be conducted before a strike can be called.

The purpose of the procedural requirements is to give parties an opportunity to resolve their
disputes before they engage in a strike or lockout. The following are the procedural
requirements prescribed by the LRA for protected strikes and lockouts:

(i) The issue in dispute must be referred for conciliation. The LRA requires that there be
an issue in dispute. In addition, it requires that the parties try to resolve the issue by, first,
referring it to a bargaining council (if there is one for the sector) or to the CCMA for
conciliation (if there is no bargaining council).
(ii) Certificate of outcome. The forum to which the dispute was referred must attempt to
resolve it through conciliation within 30 days of the referral. If no agreement is reached, a
certificate must be issued to indicate that the matter has not been resolved.
(iii) Notice. If the matter is not resolved or if 30 days have passed, the LRA prescribes that at
least 48 hours’ written notice must be given before the commencement of the strike or
lockout. If the state is the employer, at least seven days’ notice must be given. If the
employer is a member of an employers’ organisation, notice must be given to the
employers’ organisation. This promotes fairness, which is a constitutional value, and it is
also in line with ubuntu as the employer is informed in advance that action will be taken
against it. It gives the employer an opportunity to prepare for the looming action.

The LRA does not prescribe the details that the notice must contain; it only prescribes that it
must be in writing and must be issued at least 48 hours before the action.

The exceptions when the parties do not need to follow the procedures prescribed by
the LRA are the following:

• when the parties to the dispute are members of a bargaining council and when the dispute
was dealt with in terms of the procedure prescribed by that council’s constitution
• if the parties have concluded a collective agreement that prescribes the procedures to be
followed before a strike or lockout, and if the procedures have been followed
• when employees strike in response to an unprotected lockout or the employer resorts to a
lockout in response to an unprotected strike and
• if the strike takes place because the employer has unilaterally changed the terms and
conditions of employment, and if the employer has failed to rectify this despite prior
warnings

When an employer refuses to bargain with a union, the dispute must be referred for advisory
arbitration after conciliation has failed before notice of the strike can be issued.
(c) Secondary strikes
Study paragraph 8 of chapter 15 in your prescribed textbook and make sure that you
understand how a secondary strike differs from a primary strike (discussed above).

A primary strike is a strike by employees who have a dispute with their employer. A secondary
strike is by employees who are employed by another employer (secondary employer) and who
do not have a dispute with their employer. A secondary strike is in support of employees who
are engaged in a primary strike.

A secondary strike will be protected if, first, the primary strike is protected; second, if strikers
have given their employer seven days’ written notice before the strike; third, if the harm to
the secondary employer is not more than that which is necessary to make an impact on the
primary employer. Through secondary strikes, also known as sympathy strikes, employees
show solidarity and sympathise with other workers who are in dispute with their employer. This
is solidarity in action, which is in line with ubuntu, which requires that people support those who
are in need of support.

REFLECTIVE QUESTIONS

Are secondary strikes necessary and fair?

Distinguish between a strike, a protest action and picketing.
When are parties allowed to dispense with the procedural requirements of a strike action
in terms of the LRA?

CONCLUSION

Industrial action is an essential element of collective bargaining. Nonetheless, it should be used

as a measure of last resort since it inflicts harm on another party to force it to accede to
employees’ demands. This learning unit has examined various forms of industrial action and
their requirements.
 LESSON 06
LEARNING UNIT NUMBER
6
TITLE OF LEARNING UNIT CONSEQUENCES OF STRIKES AND LOCKOUTS

NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF-

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT
LINKED ACTIVITIES

NUMBER OF E-TUTOR
ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)

INTRODUCTION

Under common law, striking employees are guilty of a breach of contract and, as a result, their
employer is entitled to summarily dismiss them. But in terms of the LRA, employees who
participate in strike action are not liable for delict or breach of contract. This learning unit will
discuss the consequences of strikes and lockouts.

LEARNING OUTCOMES

After working through this learning unit, you should be able to:

• compile a list of and explain the legal consequences of a protected strike and lockout
• draw up a list of and explain the legal consequences of an unprotected strike and a
lockout

KEY CONCEPTS
• strike
• primary strike
• secondary strike
• lock-out

PRESCRIBED MATERIAL
• Study chapter 16 of the prescribed textbook.
• See the recommended material on page 313 in the prescribed textbook.
IMPORTANT MATTERS TO UNDERSTAND

(a) Legal consequences of strikes and lockouts

(i) Protected strikes and lockouts

Study paragraph 1 of chapter 16 in the prescribed book.

The action of either the employees or their employer will be protected if all the requirements set
by the LRA are met (see the previous study unit). Consequently, the employees or their
employer (whatever the case may be) will enjoy the following protection:

• The employee may not be dismissed, except for misconduct and for the operational
requirements of the business. Dismissal of the employee for his or her participation in a
protected strike will amount to an automatically unfair dismissal.
• The action of the employer or the employee does not constitute a delict or breach of
contract.
• The employer may not discriminate against the employee because of his or her
involvement in a strike.
• No claims for compensation can be instituted against employees or employers.

This is in line with the constitutional value of fairness and ubuntu, which encourages compliance
with the rules. Those who comply with the rules should be protected. On the other hand, there
must be consequences for those who do not comply with the rules as will be seen below.

REFLECTIVE QUESTIONS

Given the above, what is your opinion about strikes and violence in South Africa?
Is an employer obliged to remunerate striking employees?
Discuss how the courts have dealt with the dismissal of striking workers.

Other consequences of a protected strike:

• The employer does not have to pay employees who are on strike or are locked out since
the no-work-no-pay rule applies. What is your opinion about this rule?
Take note that when the remuneration of employees include payment in kind in the form
of accommodation, the provision of food and other basic amenities of life, the employer
may not withhold that payment in kind during a strike or lockout. Nonetheless, employees
must request that such payment in kind continue.
• The employer may not use replacement labour if the service is designated as a
maintenance service or if the employer embarks on an offensive lockout.

ACTIVITY 2

Answer the following question:

• Explain, by stating reasons, whether or not employees who participate in a protected

strike may be dismissed.
FEEDBACK ON ACTIVITY 2

Employees who participate in a protected strike may not be dismissed because it will amount
to an automatically unfair dismissal. However, they may be dismissed for misconduct or
operational reasons.

(ii) Unprotected strikes and lockouts

Study paragraph 2 of chapter 16 in the prescribed book.

The following are the consequences of an unprotected strike or lockout:

Interdict

The Labour Court has jurisdiction to grant an interdict or an order restraining any person from
participating in or acting in contemplation or furtherance of an unprotected strike.

Compensation

The Labour Court may order the payment of "just and equitable compensation" to either
employees or employers who suffered any loss caused by an unprotected strike or lockout.

This is in line with the African practice in the ‘kgoro’ according to which a person who is found
guilty of causing damage to another is required to pay damages or compensate the victim for
the damage. This is also in line with the ubuntu principle of fairness entrenched in the
Constitution.

Dismissal of strikers

Employees who participate in an unprotected strike, or who commit certain forms of conduct in
contemplation or furtherance of an unprotected strike, may be dismissed. Participation in
unprotected action will be the reason for dismissal. The Code of Good Practice: Dismissal
provides that participation in an unprotected strike constitutes misconduct. However, as is the
case with any other act of misconduct, participation in an unprotected strike does not
necessarily justify dismissal as the dismissal will be fair only if it is both substantively and
procedurally fair.

This encourages the constitutional value of fairness and is in line with ubuntu according to
which a person cannot be punished unless it is clear that he/she failed to comply with certain
rules or follow a certain prescribed procedure.

 Substantive fairness of dismissal for participation in an unprotected strike

Study paragraph 2.3.1 in chapter 16 of the prescribed book.

The substantive fairness of the dismissal of strikers who participated in an unprotected strike
must be evaluated in light of the following factors:

o the seriousness of the failure to comply with the LRA

o attempts to comply with the provisions of the LRA and
o unjustified conduct by the employer
  Procedural fairness of dismissal for participation in an unprotected strike

Study paragraph 2.3.2 in chapter 16 of the prescribed book.

The procedural fairness of the dismissal of strikers who participated in an unprotected strike
requires the following:

o contact the union and

o issue an ultimatum

CONCLUSION

This learning unit dealt with the results of engaging in unprotected strikes and lockouts. Non-
compliance with the LRA when engaging in these forms of industrial action was discussed.
 LESSON 07
LEARNING UNIT NUMBER
7
TITLE OF LEARNING UNIT PICKETING AND PROTEST ACTION

NOTIONAL STUDY HOURS

NUMBER OF PLANNED SELF-

REFLECTIVE ACTIVITIES

NUMBER OF ASSESSMENT N/A

LINKED ACTIVITIES

NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where necessary)

DESCRIPTION
(Insert relevant icons)

INTRODUCTION

Study paragraph 1 of chapter 17 in the prescribed book.

In this study unit, other forms of industrial action such as pickets and protest action, will be
discussed. Employees and trade unions may not use strike action to pursue other interests than
their workplace interests to improve their economic position. The LRA affords employees and
trade unions the right to participate in a protest action as a form of industrial action in pursuit
of their socio-economic interests.

This shows that trade unions can play a role in not only work-related matters, but also social
matters. Trade unions often engage in campaigns that go beyond matters of mutual interest
between employers and employees. In the past, South African trade unions and their
federations exerted pressure on government to bring about political change. It implies ubuntu
because any improvement in workers’ socio-economic conditions benefits not only workers, but
also society as a whole.

LEARNING OUTCOMES

After working through this learning unit, you must be able to:

• define a picket and a protest action

• mention and explain the procedural requirements of not only a protected picket but also
a protected protest action
PRESCRIBED MATERIAL
• Study chapter 17 of the prescribed book.
• See the recommended material on page 313 of the prescribed book.

IMPORTANT MATTERS TO UNDERSTAND

Pickets

A strike is the most effective weapon that trade unions and employees can use against
employers. To exert more pressure on an employer during a protected strike, trade unions may
encourage their members to engage in another type of action called a picket to reach their
objectives. A picket is, therefore, conduct in contemplation or furtherance of a strike.

A picket suggests solidarity among employees, which is inherent in ubuntu. A picket raises
awareness of a cause and binds a group of people together in the service of their cause.

(a) Requirements for protected pickets

Requirement 1: Definition/purpose of a picket

Study paragraph 2.1 in chapter 17 of the prescribed textbook.

The purpose of a picket must be to encourage non-striking employees and members of the
public to peacefully oppose a lockout or support a protected strike.

Requirement 2: Procedural requirements

Study paragraph 2.2 of chapter 17 of the prescribed textbook. In terms of section 69 of the LRA,
the requirements are the following:

• A picket must be authorised by a registered trade union. Unregistered trade unions and
employees on their own cannot authorise a picket. This requirement encourages trade
unions to register and to be regulated.
• The purpose of a picket must be peaceful demonstration. Intimidation and violence will
result in civil and criminal liability. This peaceful element of a picket is an important
element of ubuntu, which discourages violence.
• A picket must be in support of a protected strike or in opposition to a lockout. Pickets in
support of unprotected strikes will not be protected.

Study paragraph 2.3 in chapter 17 of the prescribed book regarding picketing rules.

Study paragraph 2.4 in chapter 17 of the prescribed book to learn where a picket can take place
and paragraph 2.5 of the prescribed book to learn how picketers are controlled.

(b) The legal consequences of protected and unprotected pickets

Study paragraph 2.6 in chapter 17 of the prescribed book.

Like protected and unprotected strikes and lockouts, protected and unprotected pickets have
legal consequences. Such legal consequences encourage employees and their trade unions
to comply with requirements. The following are the legal consequences of a protected picket:

• An employee who takes part in a protected picket does not commit a delict or a breach
of contract.

The employer may not sue employees or their trade union for damages suffered during a
protected picket.

• No disciplinary action may be taken against an employee for participating in a protected

picket, except for acts of misconduct (such as intimidation or threatening others). The
consequences of an unprotected picket are exactly the opposite of those of a protected
picket.

ACTIVITY 1

Members of Ultimate Power Union engage in a picket in support of demands for changes to the
tax system.

Discuss whether or not the action will qualify as a picket in terms of the LRA.

FEEDBACK ON ACTIVITY 1

The action will not qualify as a picket in terms of the LRA because a picket must be in support
of a protected strike or lockout. Furthermore, demands for changes to the tax system is not a
matter of mutual interest between an employer and its employees, but a socio-economic matter,
which can be addressed through a protest action as discussed below.

Protest action

(a) Requirements for protected protest action

Requirement 1: Definition of protest action

Study the definition of protest action in paragraph 3.1 of chapter 17 in the prescribed book.

Sometimes employees and trade unions pursue interests of general importance (beyond those
of the workplace) to promote economic development. (COSATU and other federations have
launched various campaigns for this purpose.) But they cannot strike for these purposes
because the LRA affords employees and trade unions the right to protest action as a form of
industrial action in order to improve their socio-economic circumstances.

Ubuntu is demonstrated in protest action when workers pursue not only their own interests but
also the interests of others. Through their protest action, workers exert pressure on government
to give their attention to socio-economic issues. During such actions, employers are not
required to pay employees because they do not perform their duties in accordance with their
contracts of employment. In fact, workers sacrifice (their wages) for the benefit of all, which is
an element of ubuntu.
REFLECTIVE QUESTIONS

Do you think a protest action is important? Explain why you think so.
Discuss the requirements of a protest action.
What is the role of NEDLAC in protest action?

ACTIVITY 2
Members of trade unions affiliated to Trade Unions of South Africa are engaged in an action to
demand a change in the new education system that government has introduced.
Discuss whether these workers are engaged in a strike action or a protest action.

FEEDBACK ON ACTIVITY 2
This action does not qualify as a strike action because its purpose is not to resolve a dispute
about matters of mutual interest between employees and their employers. But the action does
qualify as a protest action because it relates to the socio-economic interests of workers.

Requirement 2: Procedural requirements

Study paragraphs 3.2 and 3.3 in chapter 17 of the prescribed book.

Please note that employees engaged in essential and maintenance services may not take part
in protest action. Protest action will be protected on condition that it complies with the following
procedural requirements:

• A registered trade union or federation of trade unions must call the action.
• The National Economic, Development and Labour Council (NEDLAC) must be informed
of the protest action, its nature and the reason for the action.
• NEDLAC or any other appropriate forum must have considered the matter that gives rise
to the protest action.
• NEDLAC must have been given 14 days’ notice of the intention to protest.

(b) Legal consequences of protected and unprotected protest action

Study paragraph 3.4 in chapter 17 of the prescribed book.

A protest action that complies with the requirements discussed above will be protected.
Participants are protected against civil claims and employees are protected against dismissal.
However, if the protest action is unprotected or is in breach of an order of court, employees
may be dismissed; the action may be interdicted, and damages may be claimed from
participants.

CONCLUSION

The importance of pickets and protest action cannot be overstated. These types of industrial
action represent the link between labour and economic and social issues. It is therefore
important to understand how the LRA regulates them.