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Slides Strikes and Lockouts

The document provides an overview of strikes and lockouts in Namibia, detailing their definitions, purposes, and legal frameworks as outlined in the Labour Act of 2007. It emphasizes the procedural requirements for conducting protected strikes and lockouts, including the necessity of conciliation and proper notice. Additionally, it discusses the protection afforded to strikers and the circumstances under which strikes may be prohibited.

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13 views14 pages

Slides Strikes and Lockouts

The document provides an overview of strikes and lockouts in Namibia, detailing their definitions, purposes, and legal frameworks as outlined in the Labour Act of 2007. It emphasizes the procedural requirements for conducting protected strikes and lockouts, including the necessity of conciliation and proper notice. Additionally, it discusses the protection afforded to strikers and the circumstances under which strikes may be prohibited.

Uploaded by

john
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Strikes and Lockouts:

An Introduction
Dr. Kennedy Kariseb
Labour Law LCLA 3561
Department of Private and Commercial Law,
School of Law, University of Namibia
Main readings on this topic:

• Labour Act, 2007 ( sections 74-79)


• Codes on Good Practice on Industrial Action and Picketing, No. 208 of
2009.
• Parker, C. 2014. Labour Law in Namibia. Windhoek: UNAM Press, pp.
223-239.
Strikes and Lockouts ‘implied’ in the
Constitution
The State shall actively promote and maintain
the welfare of the people by adopting inter alia
policies aimed at:
“…active encouragement of the formation of
independent trade unions to protect workers
rights and interests, and to promote sound
labour relations and fair employment
practices…” (Article 95 (c))

All persons shall have the right to:


“…assemble peaceably and without arms…”
(Article 21 (d))
At common law the withdrawal of Section 74 (1) (a) of the Labour
services by employees for any Act, 2007
reason amounts to a fundamental “every party to a dispute of
breach of the contract of interest has the right to strike”
employment. Under statutory law,
a strikes waives this strict
common law position.
Definition: Strike
“[a] total or partial stoppage,
disruption or retardation of work
by employee if the stoppage,
disruption or retardation is to
compel their employer, any other
employer or an employer’s
organization to which the
employer belongs, to accept,
modify or abandon any demand
that may for the subject of a
dispute”
Definition: Lockout

“…a total or partial refusal by one or


more employers to allow their
employees to work, if the refusal is to
compel those employees or employees
of any other employer to accept, modify
or abandon any demand that may form
the subject matter of a dispute of
interest”
Purpose of a Strike or Lockout:

“Although a measure of last resort, strikes and “The objective of an industrial action is to settle a
lockouts are forms of lawfully sanctioned dispute. Accordingly a strike or a lockout comes to
economic pressure in order to resolve disputes an end if the dispute that gave rise to it is settled.
of interest between employers and their It may be settled by an agreed compromise or a
employees. A strike or lockout is temporary return to work. If an employer withdraws a
application of pressure in the collective lockout, the employees return on the employers’
bargaining process. The main purpose is not to terms. If employees abandon the strike or the
unnecessarily damage the employer’s business strike is called off by the trade union, the
employees return on the employer’s terms. Either
or undermine the legitimate demands of the
way, the dispute is settled.”
employees.”
Elements of a Strike and Lockout:
• There must be a collective • The demand should be the
withdrawal of labour, disruption subject matter of an industrial
or work or retardation of work, dispute i.e. employees or their
whether partial or total by trade union must declare a
employees acting in concert. dispute.
• The aim of the collective action
must be to achieve a stated
objective to induce employer to
accept certain demands.
Procedural requirements for a protected strike or lockout :
(section 74 (1) (a) to (c))

(a) The Act contemplates the following procedure before an


employer may embark on a protected lockout or employees may
embark on a protected strike:
i) The dispute must be referred to the Labour Commissioner;
ii) the Labour Commissioner will appoint a conciliator and
“Section 74 (1) (a) right to a strike or determine the date, time and place for the first conciliation
lockout is circumscribed, as it is meeting as soon as possible but within 30 days of the referral.
conditioned upon the fulfilment of
clearly laid down conditions under the b) The conciliator will try and conciliate the dispute and if
Labour Act, 2007.” i) there are prospects of settlement, the conciliator will
settle it at that meeting or arrange further meetings if
necessary;
ii) there are no prospects of settlement, will seek to reach
agreement on rules to regulate the strike or lockout; and
iii) if the parties do not agree on rules to regulate the strike
or lockout, the conciliator must determine the rules in
accordance with this Code.
Procedural requirements for a protected strike or lockout :
(section 74 (1) (a) to (c))

(c) The 30 day conciliation period has expired from


the date of the referral. This period may be “The notice of commencement of the strike or
lengthened by 30 days if the party referring the lockout must state the date and time of the action.
dispute fails to attend a conciliation meeting. The The object of the notice is to ensure that the other
period may be shortened to the date of the party has the opportunity to prepare for the intended
conciliation meeting if the other party fails to attend. action without unnecessary harm being done to it.
(See section 74(3(a) and (b) of the Act.) Accordingly, the action must commence at the stated
time and date. If the action does not commence at
the stated time and date, a fresh notice may be
(d) At least 48 hours notice of the commencement of given.”
the strike or lockout has been given. See section
74(1)(d).
Procedural requirements for a protected strike or lockout :
(section 74 (1) (a) to (c))

(f) Once a dispute has been referred and the procedural 5. Rules regulating the conduct of strikes and
requirements of section 75 have been complied with, either lockouts:
party to the dispute may commence industrial action. In
other words a trade union may strike in respect of a dispute
referred by the employer and an employer may lockout in
respect of a dispute referred by the employees. “ The conciliator is charged with the duty to try
(g) The conciliator retains jurisdiction over the dispute until and reach agreement on rules to regulate the
the dispute is settled and must continue to try and settle the conduct of a strike and lockout. If no agreement
dispute by conciliation throughout. is reached, the conciliator must make the rules.
An action in breach of those rules lifts the
protection from a strike or lockout.”
Protection of Strikers:
• Article 21 (1) (f) of the Constitution protects strikers from being
subjected to penal sanctions solely for participating in a strike;
• Section 33 (2) (c) (1) of the Labour Act, 2007 protects employees who
participate in a lawful strike from dismissal; and
• section 76 (1) read with section 76 (5) of the Labour Act, 2007
immunes employees from proceedings in action in delict or contract
of from any other civil proceedings solely for engaging in a strike.
Circumstances under which strikes (and by extension lock
outs) are prohibited: (section 75 of the Labour Act, 2007)
• The provisions of s. 74 have not been
complied with
• The dispute in question is one that a
party has the right under the Labour Act,
2007 to refer to arbitration or other
adjudication for determination;
• The parties to the dispute have agreed to
refer it to arbitration;
• The issue in the dispute is governed by an
arbitration award or an order of a
competent court of law;
• Or the dispute is between parties
engaged in a service designated as an
essential service in terms of section 77 of
the Labour Act, 2007
Picketing as a corollary of a strike:
• “Once aright to a strike is
recognized, automatically a right Section 76(2) of the Labour Act, 2007
to picket follows” provides that any law notwithstanding,
an employee or a member or an official
• Picketing generally refers to of a registered trade union may, in
overt behavior or conduct aimed furtherance of a strke hold a picket at or
at conveying the demands of a near the place of employment so as to
strike vigorously to the public. peacefully communicate information
and persuade any individual not to
• It is a tool for employees to use work.
for peaceful communication and
persuasion during a strike.

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