Although employers cannot afford to give into the union’s demands, they cannot afford for their employees to go on strike either as they still need the labour to run their business. Fortunately, under South African law, the employees may not go on strike the day after a deadlock is reached, like we see in the movies, as that will make the strike unprotected, which means the company has recourse and can take disciplinary action against those on strike which can ultimately lead to dismissal should they fail to return to work.

Before any employees can go on a protected strike, they need to follow the process as set out in the Labour Relations Act, section 64. The union must enter into negotiations bona fide with the employer and should they not reach any agreement they need to lodge a referral at the CCMA or Bargaining Council. Once a referral has been lodged and 30 days passed or the matter remains unresolved after the Conciliation phase, the union must give the employer a minimum of 48 hours’ notice stating:

1. Why they are going on a protected strike;
2. When it will commence and end; and
3. The required outcome.

Should they have followed the before-mentioned process, the strike is protected and they have the right to strike in an attempt to compel the employer to give in to their demands, however, this takes 3 to 5 weeks, so the employer will time to prepare and put measures in place in anticipation of the pending strike.

In the same way as the union has a strike to compel the employer to meet their demands, so does and employer have recourse to compel the union and employees to accept the employer’s terms or counter-proposal (yes, there are times where you want the union to accept your counter-proposal), and this we call a Lock Out, as set out in section 64 of the Labour Relations Act.

A lock out works similar to a strike, the obvious difference being that the employer is the party that prevents the employees from coming back to work. The main reason for this is that the employer has some terms and conditions which he/ she wants the employees to accept, like a change to the terms and conditions of employment, a specific increase amount over 2 or 3 years etc., to name just a few examples. The principle of “no work = no pay” applies and thus the manner in which the employer “force” or compels the employees to accept the employer’s terms or demand.

The employer, in order to lock out his/ her employees, must also follow the same procedure as the unions, or else it would correspondingly be an unprotected lock out, and there can be implications to the employer for same. It is also to be noted that there are 2 types of lock outs – defensive and offensive. A defensive lock out is in response to the union giving the employer notice of their intention to embark on a protected strike, whereas an offensive lock out is where the employer gives the union notice of his/ her intention to lock out, before/ without the union giving the employer notice. The main difference between the 2 is that with an offensive lock out, the employer may not use replacement/ temporary labour, whereas with a defensive lock out (the union gave notice first) the employer may use replacement/ temporary labour to do the work of those employees that are still on strike/ locked out, whist paying those replacement/ temporary labour and not those on strike.

A strike is like an arm wrestle, the person who folds first, loses. The employees’ power lies in the fact that the employer will suffer harm in the form of production delays and the employer’s power is in the fact that they can withhold payment until employees return to work, and if actioned correctly, can get replacement/ temporary labour.

Strikes and lock outs are very much strategic and it is imperative to consult an experienced advisor  who can assist  in dealing with matters like these, before things go pear-shaped and you suffer great financial losses due to production deadlines not being met, and on top of those losses, still having to pay the massive increases proposed by the unions.