The Department of Labour released the latest edition of its annual Industrial Action Report on Monday.

This report, which covers 2013, is a compelling read.

Despite the comprehensive legislative framework governing strike action, including a constitutionally entrenched right to strike, 52 percent of strikes last year were unprotected.

Every second strike in the country did not comply with the requirements of the Labour Relations Act to provide strikers with statutory protection against inter alia dismissal or civil action.

A strike is protected under the act when, first, the trade union follows the procedure prescribed in section 64 of the act before embarking on the strike and, second, the issue in dispute or the subject of the strike is not prohibited in terms of section 65.

It is vexing that the procedural requirements for compliance are not very onerous and there are but a handful of substantive limitations that will deprive the strike of its protected status.

As the law stands, even violence that accompanies industrial action does not justify the strike losing its protected status.

The figures mean that in at least half the strikes trade unions failed to adhere to basic requirements to protect their members against unfair dismissal or civil action.

Participation in unprotected industrial action generally constitutes employee misconduct and exposes the worker to dismissal by the employer.

Employees are largely placed at the mercy of an employer where their work stoppage takes place outside the ambit of the Labour Relations Act.


Worrying trend

More worrying is that unprotected strikes are on the rise.

During 2012, 54 percent of strikes were protected while this proportion fell to 48 percent in 2013.

This may suggest a number of troubles, including lack of regard for the law or the consequences of unlawful conduct, more robust attitudes from parties towards collective bargaining and dispute resolution, growing frustration towards employers or further support for the view that our collective bargaining processes are in dire need of an overhaul.

Whatever the reason for the increase in unprotected protests, the trend bodes ill for labour stability.

We need to better grasp why staff are resorting to unprotected industrial action.

While the department repeats the prior predictions of analysts that low wages, rising income inequalities and tough economic conditions would lead to tough negotiations in 2013, this does not explain why we saw more unprotected strikes.

The outlook in respect of the factors influencing bargaining in 2013 do not differ greatly in respect of talks for the rest of this year or next.

We have not seen significant wage increases, closing of the wage gap or relaxation of economic conditions.

Our focus now ought to be on how to save jobs and prevent unnecessary dismissals.

The need for greater compliance with legal requirements before embarking on industrial action is emphasised when considering the alarming reports of other unlawful activities connected with strikes, protected or unprotected, which include assault, intimidation and damage to property.

Our efforts should focus on getting greater adherence to our legal framework pertaining to strikes in the hope of increasing legal compliance in those areas that are more difficult to police.

Allowing staff to strike in defiance of the act cannot assist in spreading the gospel of refraining from other unlawful conduct such as assaulting non-striking workers, intimidating customers from supporting a business or damaging cars, buses or the premises of employers.

Other interesting snippets from the report include that the average wage settlement reached during 2013 was around 8 percent.

Gauteng was the hardest hit with 97 strikes last year (up from 42 in 2012) followed by the Western Cape with 61 work stoppages (a surge of 373 percent on the 15 strikes during 2012).

The mining, manufacturing and transport sectors lost the most working hours during 2013.

These industries contributed 23.4 percent, 21.5 percent and 24.7 percent, respectively, to the 15.5 million working hours lost in 2013.

The true impact on the employee relations climate in the country caused by greater non-adherence to the legal framework is more difficult to quantify but could persist, unless the trend is arrested.


Johan Botes is a director of employment law at Cliffe Dekker Hofmeyr.