Legal Consequences of a Protected Strike
If the Commission finds that economic strikers or strikers have unlawfully rejected unfair labour practices and have made an unconditional request for reinstatement by their employer, it may grant those strikers an additional payment from the time they should have been reinstated. In summary, there are various factors to consider when taking strike action and several consequences to follow if due process is not followed. Strikes illegal due to timing – effect of strike ban agreement. A strike that violates a strike prohibition in a contract is not protected by law, and striking workers may be dismissed or otherwise punished, unless the strike is called to protest certain types of unfair labor practices by the employer. It should be noted that not all refusals to work are considered strikes and therefore violations of strike prohibitions. A walkout due to exceptionally dangerous conditions, such as a faulty ventilation system in a spray shop, was considered a violation of a strike ban. Definition of economic strikers. If the purpose of a strike is to obtain an economic concession from the employer, such as higher wages, shorter working hours, or better working conditions, strikers are called economic strikers. They retain their status as employees and cannot be dismissed, but they can be replaced by their employer. If the employer has hired permanent replacements in good faith to fill the jobs of the economic strikers, if the strikers unconditionally request a return to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not have regular and substantially equivalent employment, they have the right to be recalled to jobs for which they are qualified, if these jobs become vacant, if they or their collective representative have submitted an unconditional request for reinstatement. Illegal strikes due to misconduct by strikers.
Strikers who have committed serious misconduct during a strike may be refused reinstatement in their former workplace. This applies to both economic strikers and unfair labour practices. Serious misconduct includes violence and threats of violence. The U.S. Supreme Court has ruled that a strike “sit-in,” in which workers simply stay at the factory and refuse to work, depriving the owner of property, is not protected by law. The following are examples of serious misconduct that could result in the workers concerned losing their right to reinstatement: A strike takes place to resolve a dispute between workers and their employer. The dispute must be over something within the employer`s control, such as wages, improved working conditions and other disputes of mutual interest. Although the right to strike is a constitutional right, section 65 of the LRA provides for restrictions on the right to strike. With respect to this section, employees are prohibited from striking if they: The following strikes are illegal and employees who participate in such strikes lose NLRA protection: Contact a SchoemanLaw attorney today for your legal needs. Visit our website in www.schoemanlaw.co.za.
The same applies – strike at the end of the contract period. Article 8(d) provides that if a party wishes to terminate or amend an existing agreement, it must comply with certain conditions. If these conditions are not met, a strike to terminate or modify a contract is illegal and the participating strikers lose their status as employees of the employer involved in the labour dispute. However, if the strike was caused by the employer`s unfair labour practices, the strikers are classified as unjust labour practices strikers and their status is not affected by the failure to follow the required procedure. In order for a strike to take place, a union or group of workers enters into negotiations with an employer. The threat of strike action is the main weapon at workers` disposal – essentially, workers will stop work if their collective demands are not met. For a strike to take place, the union leadership must call a strike, which can only take place if enough union members have voted in favour of the strike. Each union has rules that dictate what percentage of workers must vote for a strike to take place. Once workers go on strike and stop coming to work, the company could close and experience financial hardship, putting pressure on the employer and giving workers influence over negotiations.
A protected strike meets the requirements of the LRA if the purpose of the strike is legitimate and the rules of procedure are followed before the strike begins. Prior to the publication of a strike notice, 30 days must elapse after the CCMA or the collective bargaining board receives the dispute, or a certificate must be issued attesting that the dispute is still unresolved. It is followed by a written notice to the employer announcing the start of the strike at least 48 hours before the strike begins. A strike ends when the dispute between employees and their employer has been resolved or the employer`s request is met. In addition, section 8 (b) (4) of the Act prohibits striking for certain objects, although the objectives are not necessarily unlawful if they are achieved by other means. An example of this would be a strike to force Employer A to cease operations with Employer B. It is not illegal for Employer A to voluntarily cease operations with Employer B, nor is it illegal for a union to simply require it. However, it is illegal for the union to strike to force the employer to do so. These issues are discussed in more detail in the Explanatory Note to section 8 (b) (4). In any case, workers who participate in an illegal strike may be dismissed and are not entitled to reinstatement. It should be noted that the following is only a brief overview.
A detailed analysis of the right to strike and the application of the law to all factual situations that may arise in relation to strikes would be beyond the scope of these documents. Workers and employers expecting to participate in a strike should be counselled carefully and competently. Access legal advice and other benefits. Join LegalWise now. It is common for employees and employers to disagree on basic terms and conditions of employment. But when a disagreement is important and discussions to resolve the problem fail, sometimes a labor strike occurs. Read on to find answers to some common questions about strikes. At the end of a strike, unfair labour practices have the right to reinstate their previous position (even if it means the employer must dismiss replacement workers) as long as they have not been involved in misconduct. Economic strikers who offer to return to work after the employer has hired permanent replacements are not entitled to reinstatement.
However, if they cannot find equivalent employment elsewhere, they have the right to call back as soon as positions become available. In addition to NLRA-protected strikes, many states have also enacted laws regarding strikes, so it is imperative to refer to your own state laws as well as federal laws. Paragraph 8(g) – Striking or picketing a health care facility without notice. Section 8(g) prohibits a labor organization from engaging in a strike, picketing or other concerted refusal to work in a health care facility without prior written notice to the facility and to the Federal Mediation and Conciliation Service with at least 10 days` notice. Section 213 of the Industrial Relations Act No. 66 of 1995 (LRA) defines a strike as “the partial or total collective refusal to work or the delay or obstruction of work by persons who are or have been employed by the same or by different employers, for the purpose of resolving a complaint or settling a dispute relating to matters of mutual interest between the employer and the employee and any Reference to “work”. This definition also includes overtime, whether voluntary or compulsory. » Legal and illegal strikes. The legality of a strike may depend on the purpose or purpose of the strike, its timing or the behaviour of the strikers. The purpose or objects of a strike and the legality of the objects are questions that are not always easy to determine. These issues often have to be decided by the National Labour Relations Board. The consequences can be serious for strikers and striking employers, as they involve reinstatement problems and payment arrears.
A worker`s right to strike is an essential element of the right to organize, but not absolutely. Some strikes are considered protected activities under the National Labor Relations Act (NLRA), but not all strikes are protected. The main types of strikes covered by the NLRA are: Reading these two provisions, it is clear that: The law not only guarantees workers` right to strike, but also imposes restrictions and restrictions on the exercise of this right. See, for example, restrictions on strikes in health facilities (see below). Typically, strikes arise from economic grievances or disagreements, including those over wages, hours of work, leave, wage increases, promotions, health benefits and pension benefits.
