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Chapter 12

PERSONNEL MATTERS

12.19 EDUCATORS STRIKE ACTIONS

12.19.1Legislative and Policy Framework

ACTS

  • The South African Schools Act, No. 84 of 1996 [SASA]
  • South African Council for Educators Act 31 of 2000 [SACE]
  • The National Education Policy Act, 1996 (Act No. 27 of 1996) [NEPA]
  • Employment of Educators Act 76 of 1998 [EEA]

 

GUIDELINES

  • Personnel Administration Measures [PAM]

 

KwaZulu-Natal

CIRCULARS

  • KZN HRM Circular No 20 of 2015 Strike Action:  Unprotected Strike/ Protest Action [Reference B4 20/2015]

Gauteng

CIRCULARS

  • Circular 25 of 2010 Strike Management [Reference B3 25/2010]

12.19.2Framework for the Development of School Policy on Educators: Strike Actions

  1. Right to strike and recourse to lock-out
    i. Every employee has the right to strike and every employer has recourse to lock-out if–
    the issue in dispute has been referred to a council or to the Commission as required by this Act, and –a certificate stating that the dispute remains unresolved has been issued; ora period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that –in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless –the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; orthe employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or
    (c) in the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or
    (d) in the case of a proposed strike or lock-out where the State is the employer, at least seven days’ notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).
    ii. If the issue in dispute concerns a refusal to bargain, an advisory award must have been made in terms of section 135 (3) (c) of this Act before notice is given in terms of subsection (i) (b) or (c). A refusal to bargain includes –

    (a) a refusal –
    to recognise a trade union as a collective bargaining agent; or
    to agree to establish a bargaining council;
    (b) a withdrawal of recognition of a collective bargaining agent;
    (c) a resignation of a party from a bargaining council;
    (d) a dispute about –
    appropriate bargaining units;
    appropriate bargaining levels; or
    bargaining subjects.iii. The requirements of subsection (i) do not apply to a strike or a lock-out if–
    (a) 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;
    (b) the strike or lock-out conforms with the procedures in a collective agreement;
    (c) the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;
    (d) 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
    (e) the employer fails to comply with the requirements of subsections (iv.) and (v.).
    iv. Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions of
    employment to a council or the Commission in terms of subsection (1) (a) may, in the referral, and for the period referred to in subsection (i) (a) –
    (a) require the employer not to implement unilaterally the change to terms and conditions of employment; or
    (b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change.
    v. The employer must comply with a requirement in terms of subsection (iv) within 48 hours of service of the referral on the employer.
  2. Limitations on the right to strike or recourse to lock-out
    No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if–

    • that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;
    • that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;
    • the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act;
    • that person is engaged in –
      • an essential service; or
      • a maintenance service.