PROTEST AND THE LAW OP-ED
Navigating the planned national shutdown – a delicate balance for employers and employees
While there’s no legal obligation for businesses to shut down, employees are entitled to take part in protected protest action without facing any adverse consequences.
The EFF’s call for a “national shutdown” on Monday, 20 March 2023 urges businesses to close and employees to stay home from work, leaving employers unsure about their operations and employees.
Alongside the national shutdown, the South African Federation of Trade Unions (Saftu) has called for protest action in accordance with section 77 of the Labour Relations Act, 1995 (LRA).
While there’s no legal obligation for businesses to shut down, employees are entitled to take part in protected protest action without facing any adverse consequences.
Protest action
The LRA defines protest action as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socioeconomic interests of workers, but not for a purpose referred to in the definition of strike”.
We understand that Saftu has complied with the necessary procedural requirements in the Labour Relations Act, which would render this protest action protected.
What does this mean for employers and employees?
Every employee in South Africa (with some exceptions), regardless of whether they are a Saftu member or not, has the right to take part in protected protest action and may not be dismissed or disciplined for participating.
However, these employees won’t be entitled to pay for that day’s work due to the no-work-no-pay principle.
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Unlike a strike, the employees who participate in the protest action are not entitled to picket at the employer’s premises.
The exception: essential and maintenance services employees
Employees who are involved in essential services and maintenance services are not entitled to participate in the protest action. Essential services are those that are necessary for the protection of life and personal safety, including parliamentary services and the SAPS.
Maintenance services are those that, if interrupted, could result in material physical destruction to any working area, plant or machinery.
Employers wanting to prevent employee participation must approach the Labour Court with an urgent application.
The national shutdown and Saftu’s protest action create a delicate balance between workers’ rights and businesses’ interests, highlighting the need for employers to navigate these situations cautiously.
In July 2021, we considered whether employers may take disciplinary action against their employees who participated in unlawful conduct outside of the workplace. These principles will also apply if employees participate in unlawful conduct during the national shutdown. DM
Balindile Shezi is an Executive in the Employment Department of law firm ENSafrica. Nils Braatvedt is a Senior Associate in the department.
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Damned if we do: No Pay & no profit/ Damned if we don’t: hostility from strikers. Risk to life..
Why, given Tuesday is a public holiday, not call Monday a public holiday too?
Beat EFF at their own game.
The law is the law and we must all abide by it. But why are some ‘more equal’ and the law is fluanted and they get away with it. Everything to do with politics in SA seems to be battled out in our courts. It is all good and well to talk about ‘the rights’ everyone has but what about responsibility? When was that word lost in our vocabulary. The narrative is about legal procedures, rights and a darn good (sic)
lawyer who can delay and drag out court cases with trivialities and finding loopholes, until you no longer care who is right and who is wrong or guilty or not guilty. It is time ‘responsibility’ is put back in our vocabulary. We don’t need more court cases, we need to restore our moral fibre.