While such action may be rare this does mean that those tasked with advising management may have little practical experience if and when it does occur. The purpose of this note is to summarise the key legal issues that employers may have to consider in the event that industrial action is threatened or brought.
What is industrial action?
There is no statutory definition. It can be said to amount to any concerted action to put pressure on an employer. It usually consists of either strike action or action short of a strike such as a work to rule, banning overtime or a sit-in etc. The action can be either "continuous" or "discontinuous". The latter commonly applies to a series of short term intermittent strikes or action short of a strike.
Industrial action - Impact on the employee's contract
Employees who take industrial are in breach of contract: Employers can deduct pay from the striking employees. The question arises as to how much pay can be deducted. If striking employees are paid on an hourly basis and the strike lasts less than one day the employer can deduct pay for the time that the employees are on strike. If the employees are paid a salary rather an hourly rate then many employers deduct pay for a whole day even if the strike lasts less than a day. The precise terms of the employees' contracts may need to be considered.
Strike action and dismissal
The issue of whether employees can be dismissed fairly without the risk of a successful unfair claim against the employer depends on the type of industrial action. This falls into one of three categories:-
- "Unofficial" Industrial Action: This involves employees going on strike without any notice given to the employer or support from a Trade Union. The employer is at liberty to dismiss for this reason all or any of the employees without fear of a successful unfair dismissal claim.
- "Official" Industrial Action: This involves strike action which has been authorised or endorsed by a trade union where the union has not complied with the statutory balloting and notification procedures under the Trade Union and Labour Relations (Consolidation) 1992 (TULRA). Participating unionised or non-unionised employees can all be dismissed fairly. However, their dismissal will be unfair if it is for one of a prescribed list of automatically unfair reasons in TULRA. In addition, the dismissals may be unfair applying the ordinary principles of fairness if only some of the striking employees are dismissed or all are dismissed and some are re-engaged within 90 days of dismissal.
- "Protected" Industrial Action: This is action which has been authorised or endorsed by the trade union and the trade union has complied with the statutory balloting and notification procedures under TULRA discussed below. If employees are dismissed for this reason then this will be automatically unfair (i) during the first 12 weeks of the strike action (ii) after that period ends if the employee does not participate further or (iii) if the employee does participate after 12 weeks until the employer takes such reasonable steps to resolve the dispute.
Trade union immunities - Protected industrial action
If a trade union authorises or endorses industrial action it is protected from being successfully sued in tort or delict by the employer provided a series of conditions are met. The action must:
- be in contemplation or furtherance of a trade dispute;
- relate to action against the employer by its employees or trade union representatives near the employees' place of work;
- not relate to secondary industrial action (for example sympathy strikes);
- not extend to unlawful picketing;
- not extend to prohibited acts. For example enforcing a "closed shop" or supporting employees who took unofficial industrial action.
The union must also comply with the statutory balloting procedures under TULRA.
This includes the following:
- The action must be supported by a properly organised ballot of union members;
- The union must ballot (and only ballot) all members who it is reasonable for it to believe will be induced to take part, save for some minor errors;
- The balloting process must be scrutinised and reported on by an independent scrutineer where the number of employees exceed 50;
- The ballot only needs 50% of those voting to be carried.
The union must also comply with the notification procedures under TULRA. In particular it must send the employer:
- a notice of intention to ballot at least 7 days before the ballot,
- a copy of the ballot paper at least 3 days before the ballot,
- notice of the ballot result as soon as reasonably practicable and
- notice of industrial action at least 7 days before it starts.
Remedies open to the employer
If the employer does not consider that either the balloting or notification procedures under TULRA have been complied with it can seek an interim interdict or injunction to try and prevent the alleged unlawful action proceeding.