Rea Vaya? Nope, not going anywhere

2015-02-16 14:37

It has been reported that Rea Vaya bus services have been suspended until recruitment processes have been completed. This after some odd 160 employees were dismissed for misconduct after they left busses unattended due to alleged wage issues.  A disciplinary hearing took place and some employees failed to attend said disciplinary hearings. http://www.news24.com/SouthAfrica/News/Striking-bus-drivers-dismissed-for-misconduct-20150216

This begs the question, what are the steps which employees can take if they have concerns relating to their wages/salaries. Disputes relating to salaries are what in labour law we refer to as disputes of interest

Our Labour Relations Act (LRA) sets out structures and processes which can be used in order to resolve such disputes of interest.

Employees can take industrial action over disputes of interest, like strikes, if they have complied with the requisite LRA procedures.

Chapter 4 of the Labour Relations Act deals specifically with Strikes and lock-outs. Below are the broad requirements which must be met should an employee wish to strike.

Firstly the issue in dispute must be referred for conciliation to the bargaining council with the necessary jurisdiction or to the CCMA and subsequently a certificate that the dispute remains unresolved has been issued after conciliation.

Secondly, a period of 30 days from the date on which the dispute was referred to the Council or Commission must also have lapsed and the issue must continue to be unresolved.

Thirdly, Section 64(1) of LRA further tells us that, 48 hours’ written notice of a strike (that is notice of your intention to strike) must be given either to the employer; a council (if the dispute relates to a collective agreement to be concluded in a council); or to an employers’ organisation (if the employer is a member of an organisation that is a party to the dispute).

If the above requirements are met, then the above will constitute what is called a protected strike.

Much like almost everything in law, there is an exception to s64 (1) above. Section 64(3) tells us that the above requirements, do not apply if either one of the following is applicable:

  • were the parties to the dispute are members of a council, and the dispute has been dealt with by that council in accordance with its constitution;
  • were the strike or lock-out conforms with the procedures in a collective agreement;
  • were the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;
  • were the employer locks out its employees in response to their taking part in a strike that does not conform with the provisions of this Chapter; or
  • were the employer fails to comply with the requirements of subsections 64(4) and 64(5). (that is say, were the employer fails to stop from implementing or continuing to implement unilateral changes to the employment conditions, were the issue of dispute relates to unilateral change of employment conditions by the employer).

Should employees embark on a protected strike they are "protected" from the following in terms of the LRA: Dismissal or having civil action being brought against them.

If the above constitutes a "protected strike" then what is an unprotected strike?

Well a strike is not protected if the issue in dispute:

  • falls under a collective agreement or arbitration award which binds the parties ;
  • is covered by an agreement which stipulates that the said issue must be referred for arbitration or to the Labour Court;
  • is a wage determination binds the parties and it is less than 1 year old; or
  • involves parties which are providing an essential or maintenance service.

Our Labour laws are clear and go to great lengths to provide for certain procedures and mechanisms to be followed when employees are dissatisfied.

Follow me on Twitter @Mamaroala

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