The difference between a strike and a lockout

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Workers have a right to strike, and employers have a right to lockout workers, if a dispute cannot be resolved. Certain procedures and certain limitations apply under certain conditions.  Secondary strikes and pickets may also be held.

What is a strike?

To strike is the refusal to work, the slowing down of work or the obstruction of work by employees (“strikers”). A strike takes place to resolve a dispute between the employees and their employer. The dispute must be about something in the employer’s control for example, wages, improved working conditions and other disputes of mutual interest.

While employees have the right to strike, an employer has an option to lockout. However, these rights can sometimes be limited, for example, if the employees are bound by a collective agreement or are involved with essential services.

What is a lockout?

A lockout is the refusal of the employer to grant the employees access to the workplace. This means that the employees are not able to tender their services and as a result will not be paid.

A lockout takes place in response to a strike or to force the employees to accept a demand of the employer. The demand must relate to disputes of mutual interest. The demand of the employer can be, for example, to force the employees to accept changes to their terms and conditions of employment.

The rights of workers and employers

Every worker has the right to strike, and every employer has the option to lockout workers, if:

  1. a dispute has been referred to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
  2. a certificate that a dispute remains unresolved has been issued;
  3. 30 days have elapsed since the referral; and
  4. 48 hours’ written notice of a strike is given to
    a. the employer; or
    b. a council (if the dispute relates to a collective agreement to be concluded in a council); or
    c. to an employers’ organisation (if the employer is a member of an organisation that is a party to the dispute); or
  5. 48 hours’ written notice of a lockout is given to
    a. the trade union; or
    b. to the workers (if they are not trade union members); or
    c. a council (if the dispute relates to a collective agreement to be concluded in a council).

What happens when a dispute cannot be resolved?

Step 1: Conciliation – the dispute must be referred to the Council for Conciliation, Mediation and Arbitration (“CCMA”) or Bargaining Council for resolution.

Step 2: Certificate of outcome –  if the dispute remains unresolved, or; a 30-day period has expired since it has been referred to the CCMA a certificate of outcome must be obtained.

Step 3: Notice of Commencement – at least 48 hours prior to the strike or lockout a written notice of the commencement must be given.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Please feel free to contact Brian Kahn for further information or specific and detailed advice. Errors and omissions excepted (E&OE)

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