Workers have a right to strike, and employers have a right to lock out workers, if a dispute cannot be resolved.

Certain procedures and certain limitations apply under certain conditions. Secondary strikes and pickets may also be held. Application The Labour Relations Act applies to all employers, workers, trade unions and employers organisations, but does not apply to -

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48 hours written notice of a lockout is given to a. the trade union; or b. to the workers (if they are not trade union members); or c. a council (if the dispute relates to a collective agreement to be concluded in a council).

Strike or Lockout Procedures do not apply if

members follow the procedure in a councils constitution; a strike or lockout follows a collective agreement procedure; workers strike in response to an illegal lockout; employers lock workers out in response to an illegal strike; and employers one-sidedly change workers working conditions and refuse to restore them.

Workers Rights During legal strikes workers may not

members of the:

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be dismissed; or have civil legal proceedings brought against them.

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National Defence Force; National Intelligence Agency; or South African Secret Service.

Illegal Strikes and Lockouts Employers Rights During legal strikes employers Strikes and lockouts will be illegal if

Labour Relations Act

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do not have to pay workers, unless workers ask that payment in kind (accommodation, food, basic amenities) be continued; and may fairly dismiss a worker for misconduct or for operational needs.

a collective agreement or arbitration award binds the parties; an agreement must be referred for arbitration or to the Labour Court; a wage determination binds the parties and it is less than 1 year old; or the parties are providing an essential or maintenance service.

Applies to all workers and employers and aims to advance economic development, social justice, labour peace and the democracy of the workplace. Legal Strikes and Lockouts Every worker has the right to strike, and every employer has the option to lock out workers, if 1. a dispute has been referred to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA); a certificate that a dispute remains unresolved has been issued; 30 days have elapsed since the referral; and 48 hours written notice of a strike is given to a. the employer; or b. a council (if the dispute relates to a collective agreement to be concluded in a council); or c. to an employers organisation (if the employer is a member of an organisation that is a party to the dispute); or

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After a strike has ended, an employer may recover the monetary value of payment in kind through civil proceedings in the Labour Court. During legal lockouts, employers may

Labour Court Action If a strike or lockout is illegal, the matter must be referred to the Labour Court, which may grant an interdict or a restraining order.

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not have civil legal proceedings brought against them during legal lockouts; and recover the monetary value of payment in kind through civil proceedings in the Labour Court after legal lockouts.

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3. 4.

Secondary Strikes Special Procedure for Refusal to Bargain When a party refuses to bargain, an advisory award must be obtained before a strike can be held. An award cannot force a party to bargain. When Strike or Lockout Procedures Do Not Apply When workers strike in support of a legal strike held by other workers, it is called a secondarystrike. Secondary strikers must give their employers or employers organisation 7 days notice of their intention to strike.

A secondary strike cannot be held if

All employers must submit records when requested by

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Picketing

the dispute has been referred to a council; the workers work within the registered scope of the council; and they have a material interest in the dispute.

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a bargaining council; or commissioner; or any dispute resolution agent.

However, by way of exceptions, there are at least two instances where an employee who voluntarily resign is entitled to receive separation pay, as follows: When payment of separation pay is stipulated in the employment contract or Collective Bargaining Agreement (CBA, for companies with existing bargaining agent or union); When it is sanctioned by established employer practice or policy. Voluntary Resignation Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment. (Virgen Shipping Corp. vs. Barraquio, G.R. No. 178127, April 16, 2009 citing Valdez vs. NLRC.) The key is that resignation must be a voluntary act, and that the employee must have knowingly and voluntarily dissociate himself from his employment for his own personal reasons. It does not cover cases where the employee is forced to resign with the use of threats, intimidation, coercion or manipulation, or where resignation is imposed as a penalty for an offense. The common practice of allowing an employee to resign, instead of terminating him for just cause so as not to smear his employment record, also fall under the category of voluntary resignation. (See J Marketing Corp. vs. Taran, G.R. No. 163924, June 28, 2009).

The Labor Code also recognizes resignation in Article 285 (a) which states: An employee may terminate without just cause the employeeemployer relationship by serving a written notice on the employer at least one month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. A resignation may also be either express, as when contained in a written document, or implied, as can be inferred from the acts of the employee concerned. Also, to constitute a resignation, it must be unconditional and with the intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. If the employee was merely forced by circumstances to submit his resignation, there is no valid resignation and thus, there can be no effective dismissal of the employee Separation Pay

A registered trade union may authorise its members and supporters to picket. The aim of picketing is to peacefully support a legal strike or to oppose a lockout. Pickets may be held

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in public access areas outside an employers premises; or inside an employers premises (with the employers permission).

The parties or the CCMA must agree on the picketing rules. Disputes Any disputes on picketing rights may be referred to the CCMA. Records to be Kept by Employer All employers must keep records of the details of strikes, lockouts or protest actions according to the requirements of

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An employee who voluntarily resigns from his work is not entitled to separation pay. There is no provision in the Labor Code which grants separation pay to voluntarily resigning employees. Separation pay as a rule is paid only in those instances where the severance of employment is due to factors beyond the control of the employee. Thus, in case of retrenchment to prevent losses where the employee is forced to depart from the company due to no fault on his part, separation pay is required by law to be paid to the dismissed employee. The case is totally different in case of voluntary resignation where severance of employment is due to employees own initiative. The law does not oblige the employer to give separation pay if the initiative to terminate employment comes from employee himself.

collective agreements arbitration awards Wage Act determinations

All employers must keep the original or reproduced records

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for 3 years from the date of an event; or from the date of an event; or from the end of a specified period.