The recent FlySafair strikes have once again thrust labour disputes into the national spotlight, affecting thousands of travelers and highlighting the far-reaching consequences of industrial action. Understanding the legal framework governing strikes and lockouts is crucial for both employers and employees navigating South Africa’s complex labour relations landscape.
At their core, strikes and lockouts are power mechanisms designed to break deadlock in workplace negotiations. A strike involves employees withholding their labour to pressure employers into accepting demands, while a lockout sees employers excluding employees from the workplace to compel agreement on disputed matters.
These aren’t arbitrary actions – both must relate to “matters of mutual interest” such as wage increases, working hours, or new collective agreements. Crucially, you cannot strike or lockout over “disputes of rights” – existing entitlements that should be resolved through arbitration or court proceedings.
The distinction between protected and unprotected industrial action cannot be overstated. Protected strikes offer employees constitutional protection against dismissal for participating in strike action, while unprotected strikes leave workers vulnerable to termination and employers able to seek court interdicts.
Achieving protected status requires following specific procedures. The dispute must first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), where conciliation attempts must be made. Only after receiving a certificate of non-resolution can parties proceed, and even then, 48 hours’ written notice must be given before any action begins.
This framework reflects a careful balance between constitutional rights and practical workplace realities. While employees have a constitutional right to strike, this right comes with responsibilities and procedural requirements designed to encourage resolution before resorting to industrial action.
One crucial aspect often overlooked is that even during protected strikes, the principle of “no work, no pay” applies. Employees participating in lawful strike action forfeit their wages for the duration of the strike, regardless of its protected status. This economic reality serves as a natural deterrent against frivolous industrial action.
For employers, protected strikes allow the use of replacement labour – temporary workers who can maintain operations while regular employees are on strike. However, this right comes with important limitations, particularly regarding lockouts.
Lockouts present unique challenges, especially given the distinction between defensive and offensive lockouts. When employers lock out employees in response to a strike (defensive lockout), they may use replacement labour. However, if employers initiate the lockout themselves (offensive lockout), replacement labour is prohibited – a measure designed to prevent employers from indefinitely excluding workers while maintaining full operations.
A recent Constitutional Court decision has added complexity to this area. In the NUMSA vs Trendstar case (2023), the Constitutional Court fundamentally clarified when replacement labour can be used during lockouts. The court ruled that once a strike ends – even if merely suspended rather than terminated – employers may no longer use replacement labour, even if the lockout notice was issued before the strike ended.
The case arose when NUMSA gave notice of its intention to suspend its strike and Trenstar immediately implemented a lockout with replacement labour, arguing it was responding to the ongoing strike. The Constitutional Court rejected this reasoning, holding that the existence of a strike depends on whether there is actual “concerted withholding of labour.” Once employees tender their services (as happens when a strike is suspended), there is no strike to respond to, making any lockout “offensive” rather than “defensive” for purposes of using replacement labour.
Protected status doesn’t create a legal free-for-all. While employees cannot be dismissed for participating in protected industrial action, they remain liable for misconduct committed during strikes. Property damage, assault, or interference with business operations can still result in disciplinary action and potential dismissal.
This principle maintains accountability while preserving the right to strike. The protection extends to the act of striking itself, not to any criminal or inappropriate behaviour that might occur during the strike.
The 2024 Labour Appeal Court decision in SACCAWU vs Massmart clarified another important aspect: even during protected strikes, unlawful conduct that constitutes an offence can result in compensation claims. The court held that the Labour Court has exclusive jurisdiction to order “just and equitable compensation” for losses attributable to unlawful conduct during strikes, regardless of whether the underlying strike was protected or unprotected. This means that while the strike itself may be protected, criminal or unlawful behaviour during the strike exposes participants to potential financial liability beyond just disciplinary action.
Perhaps most importantly, South African labour law emphasizes collaboration and internal dispute resolution. The Code of Good Practice for Collective Bargaining, Industrial Action and Picketing strongly encourages parties to develop internal mechanisms for resolving disputes before resorting to CCMA processes or industrial action.
Smart employers and unions invest time in crafting comprehensive collective agreements that include detailed dispute resolution procedures, escalation mechanisms, and clear guidelines for when and how industrial action might be considered. These proactive measures often prevent the need for strikes or lockouts altogether.
For employees considering strike action, the message is clear: ensure your dispute qualifies as a matter of mutual interest, follow proper CCMA procedures, and understand that protection doesn’t extend to misconduct. Remember that replacement labour is ordinarily permitted during a protected strike and that the exclusion of replacement labour only applies to offensive lockouts.
For employers, the implications of recent court decisions can be far reaching. . The NUMSA vs Trendstar judgment means that lockout strategies must be carefully timed and that replacement labour rights are more limited than previously understood. If employees suspend a strike, the right to continue using replacement labour in a parallel defensive lockout ceases; and any subsequent lockout is offensive, prohibiting replacement labour use. The SACCAWU vs Massmart decision confirms that unlawful conduct during even protected strikes can result in compensation claims through the Labour Court, providing some recourse for losses suffered due to such behaviour.
The current economic climate makes prolonged industrial action particularly costly for all parties. Lost wages for workers and lost productivity for businesses create ripple effects that extend far beyond the immediate workplace, as the FlySafair situation demonstrates.
Effective labour relations require understanding, respect, and adherence to established procedures. While strikes and lockouts remain legitimate tools for breaking deadlock, they should truly be mechanisms of last resort. The most successful workplaces are those where parties invest in relationship-building and dispute prevention, recognizing that everyone benefits when conflicts are resolved efficiently and fairly.
The goal isn’t to eliminate workplace disputes – they’re inevitable in any dynamic employment relationship. Rather, it’s to create frameworks where disputes can be resolved constructively, preserving working relationships and minimizing broader economic disruption while still allowing for the legitimate exercise of constitutional and statutory rights.
The recent FlySafair strikes have once again thrust labour disputes into the national spotlight, affecting thousands of travelers and highlighting the far-reaching consequences of industrial action. Understanding the legal framework governing strikes and lockouts is crucial for both employers and employees navigating South Africa’s complex labour relations landscape.
At their core, strikes and lockouts are power mechanisms designed to break deadlock in workplace negotiations. A strike involves employees withholding their labour to pressure employers into accepting demands, while a lockout sees employers excluding employees from the workplace to compel agreement on disputed matters.
These aren’t arbitrary actions – both must relate to “matters of mutual interest” such as wage increases, working hours, or new collective agreements. Crucially, you cannot strike or lockout over “disputes of rights” – existing entitlements that should be resolved through arbitration or court proceedings.
The distinction between protected and unprotected industrial action cannot be overstated. Protected strikes offer employees constitutional protection against dismissal for participating in strike action, while unprotected strikes leave workers vulnerable to termination and employers able to seek court interdicts.
Achieving protected status requires following specific procedures. The dispute must first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), where conciliation attempts must be made. Only after receiving a certificate of non-resolution can parties proceed, and even then, 48 hours’ written notice must be given before any action begins.
This framework reflects a careful balance between constitutional rights and practical workplace realities. While employees have a constitutional right to strike, this right comes with responsibilities and procedural requirements designed to encourage resolution before resorting to industrial action.
One crucial aspect often overlooked is that even during protected strikes, the principle of “no work, no pay” applies. Employees participating in lawful strike action forfeit their wages for the duration of the strike, regardless of its protected status. This economic reality serves as a natural deterrent against frivolous industrial action.
For employers, protected strikes allow the use of replacement labour – temporary workers who can maintain operations while regular employees are on strike. However, this right comes with important limitations, particularly regarding lockouts.
Lockouts present unique challenges, especially given the distinction between defensive and offensive lockouts. When employers lock out employees in response to a strike (defensive lockout), they may use replacement labour. However, if employers initiate the lockout themselves (offensive lockout), replacement labour is prohibited – a measure designed to prevent employers from indefinitely excluding workers while maintaining full operations.
A recent Constitutional Court decision has added complexity to this area. In the NUMSA vs Trendstar case (2023), the Constitutional Court fundamentally clarified when replacement labour can be used during lockouts. The court ruled that once a strike ends – even if merely suspended rather than terminated – employers may no longer use replacement labour, even if the lockout notice was issued before the strike ended.
The case arose when NUMSA gave notice of its intention to suspend its strike and Trenstar immediately implemented a lockout with replacement labour, arguing it was responding to the ongoing strike. The Constitutional Court rejected this reasoning, holding that the existence of a strike depends on whether there is actual “concerted withholding of labour.” Once employees tender their services (as happens when a strike is suspended), there is no strike to respond to, making any lockout “offensive” rather than “defensive” for purposes of using replacement labour.
Protected status doesn’t create a legal free-for-all. While employees cannot be dismissed for participating in protected industrial action, they remain liable for misconduct committed during strikes. Property damage, assault, or interference with business operations can still result in disciplinary action and potential dismissal.
This principle maintains accountability while preserving the right to strike. The protection extends to the act of striking itself, not to any criminal or inappropriate behaviour that might occur during the strike.
The 2024 Labour Appeal Court decision in SACCAWU vs Massmart clarified another important aspect: even during protected strikes, unlawful conduct that constitutes an offence can result in compensation claims. The court held that the Labour Court has exclusive jurisdiction to order “just and equitable compensation” for losses attributable to unlawful conduct during strikes, regardless of whether the underlying strike was protected or unprotected. This means that while the strike itself may be protected, criminal or unlawful behaviour during the strike exposes participants to potential financial liability beyond just disciplinary action.
Perhaps most importantly, South African labour law emphasizes collaboration and internal dispute resolution. The Code of Good Practice for Collective Bargaining, Industrial Action and Picketing strongly encourages parties to develop internal mechanisms for resolving disputes before resorting to CCMA processes or industrial action.
Smart employers and unions invest time in crafting comprehensive collective agreements that include detailed dispute resolution procedures, escalation mechanisms, and clear guidelines for when and how industrial action might be considered. These proactive measures often prevent the need for strikes or lockouts altogether.
For employees considering strike action, the message is clear: ensure your dispute qualifies as a matter of mutual interest, follow proper CCMA procedures, and understand that protection doesn’t extend to misconduct. Remember that replacement labour is ordinarily permitted during a protected strike and that the exclusion of replacement labour only applies to offensive lockouts.
For employers, the implications of recent court decisions can be far reaching. . The NUMSA vs Trendstar judgment means that lockout strategies must be carefully timed and that replacement labour rights are more limited than previously understood. If employees suspend a strike, the right to continue using replacement labour in a parallel defensive lockout ceases; and any subsequent lockout is offensive, prohibiting replacement labour use. The SACCAWU vs Massmart decision confirms that unlawful conduct during even protected strikes can result in compensation claims through the Labour Court, providing some recourse for losses suffered due to such behaviour.
The current economic climate makes prolonged industrial action particularly costly for all parties. Lost wages for workers and lost productivity for businesses create ripple effects that extend far beyond the immediate workplace, as the FlySafair situation demonstrates.
Effective labour relations require understanding, respect, and adherence to established procedures. While strikes and lockouts remain legitimate tools for breaking deadlock, they should truly be mechanisms of last resort. The most successful workplaces are those where parties invest in relationship-building and dispute prevention, recognizing that everyone benefits when conflicts are resolved efficiently and fairly.
The goal isn’t to eliminate workplace disputes – they’re inevitable in any dynamic employment relationship. Rather, it’s to create frameworks where disputes can be resolved constructively, preserving working relationships and minimizing broader economic disruption while still allowing for the legitimate exercise of constitutional and statutory rights.
