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COVID-19: The right to strike during the lockdown

27 March 2020
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The Labour Relations Act (LRA) makes provision for the designation of certain businesses as ‘essential services‘. These include The South African Police Services, Parliamentary Services and those services designated as essential services by the Essential Services Committee.

Employees in essential services may not embark on strike action, and their disputes regarding matters of mutual interests must be resolved by arbitration.

On 25 March 2020, the Minister of Cooperative Governance and Traditional Affairs published Regulations in terms of the Disaster Management Act, which include a list of ‘essential goods’ and ‘essential services’ that would remain operational during the lockdown.

The list of essential services in the Regulations extends beyond those entities and businesses that have been designated as essential by the Essential Services Committee. In the normal course, the employees of these entities would be entitled to strike. The question is whether, by reason of their designation as an ‘essential service’ for purposes of the Disaster Management Act, employees in these entities are also now precluded from striking.

We do not think so. We think the employees of those entities who are not designated as ‘essential services’ by the Essential Services Committee retain the right to strike. However, this is subject to the requirements of the LRA, which include the obligation to refer a dispute to the CCMA and giving the required notice to the employer only once the applicable time periods have lapsed. If these obligations are not complied with, the strike will be unprotected.

In relation to disputes that have already progressed to the point where a strike notice may lawfully be issued, the employees would be entitled to strike (despite the fact that the Regulations designate their employer as an essential service). Accordingly, these employees could strike, and the no-work-no-pay principle would apply; but, by virtue of the lockdown, these employees would need to stay in their homes.

They would not be entitled to take part in pickets or demonstrations. The employer would further be entitled to use replacement labour in order to ensure the continuation of its operations.