What businesses in South Africa need to know about strikes

The government has instituted a no work, no pay principle with striking healthcare workers, as employees continue to stage unprotected protests and wreak havoc at public hospitals across the country.

Workers who engage in an unprotected strike are not entitled to remuneration during the strike period; however, employers must follow due process if they want to acquire lost funds.

Merilyn Kader at LexisNexis looked at a recent East London High Court case between disgruntled workers and the Amatlone District Municipality that reiterated this obligation.

The workers, in the case, engaged in a two-month-long unprotected strike while they continued to receive their regular wages. Five months later, the municipality made deductions against their salaries for the work they had missed – adopting a no-work no-pay principle.

The applicants asked for interdictory relief as they were not allowed to say why the reductions should not be made or how the recovery process would be implemented. The interdict was granted, and the municipality had to pay its employees in full.

The applicants contested the legality of the municipality’s actions and sought declaratory relief. They argued that the municipality did not follow the provision of the Basic Conditions of the Employment Act (BCEA) or the Labour Relations Act.

The court found that the employees had no legal entitlement to remuneration and should – out of principle – pay the municipality back for the lack of service provided during the unlawful strike.

However, the court also said that the common law doctrine of set-off – the termination of mutual obligations between parties – would only be appropriate if the employees had acknowledged the debt and payment terms stated by the municipality or if the court had already ordered such a transaction.

The judge ruled that the deduction to the employee’s salaries was not permissible as the municipality did not abide by the provision of the BCEA.

Future strikes

South Africa has been dubbed ‘the protest capital of the world,’  and Minister of Employment and Labour Thulas Nxesi said that the situation may worsen.

The number of union workers increased from 3.5 million in 2013/14 to over four million in 2020/21, while the number of unions increased from 203 to 220 over the same period.

Nxesi said that the increased competition between unions forced pre-existing unions to push for demands more aggressively, leading to an increase in unprotected strikes.

Despite many unions following law and order during strikes, the effects of unprotected strikes can be serious, as has been seen in the last week of violent strike action.

Just as the recent strikes have debilitated healthcare response – with health minister Joe Phaahla claiming that the strikes can be directly linked to at least four deaths – unprotected strike action in the past has also brought dire consequences.

In June 2022, Eskom workers – who are essential workers and thus unprotected – engaged in a strike, which severely stained the nation’s power supply – pushing load shedding to stage 6 for the first time since 2019.

Despite the strike action ending and Eskom later agreeing to a 7% wage increase, it took weeks for the grid to return to pre-strike levels.