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Strike issues: replacement labour, leave, public holidays, benefits Presented by: Michelle Naidoo Norton Rose South Africa. Introduction Sustainability is the capacity to endure
Norton Rose South Africa
The effect of strike action on business and labour on key conditions of employment that directly affect the social and economic pillars of sustainability:
Section 186(2), LRA
“An unfair labour practice means any unfair conduct or omission that arises between an employer and an employee involving unfair conduct by the employer relating to promotion, demotion, probation (excl. disputes about dismissals for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.”
Hospersa and another vs Northern Cape Provincial Administration
 21 ILJ 1066 (LAC)
Issue: Whether failure by the employer to pay an acting allowance, in the absence of any agreement, was an unfair labour practice?
Held: Unfair labour practice concerned only with disputes of right arising ex contractu or ex lege. No right existed, therefore no unfair labour practice.
 7 BLLR 703 (LC)
Issue: Whether travel concessions constituted a benefit?
Whether the withdrawal thereof was an unfair labour practice?
Held: The travel concession constituted a benefit.
Although remuneration does not constitute a benefit, the categories of benefits that fall within the scope of Section 186 are not finite.
Disputes over the provision of benefits fall into two categories:
• benefits not presently enjoyed by employees; or
• the fairness of the employer’s conduct in relation to the provision of benefits
 10 BLLR 1364 (LC)
Held: Remuneration is different from benefits. A benefit is something extra apart from remuneration.
Gaylard vs Telkom South Africa Limited
 9 BLLR 942 (LC)
Held: A claim for accumulated leave pay is not a benefit.
Nampak Products Ltd t/a Nampak Corrugated Containers v Paper, Printing and Wood Allied Workers’ Union
 13 ILJ 1292 (ARB)
Held: Statutory payments such as leave, are suspended if:
(a) employees were not receiving or entitled to receive remuneration; or
(b) not actually working under the supervision of the employer; or
(c) not assisting the employer in the carrying on of the business.
The employer was therefore entitled to disregard the period of strike action in calculating leave pay.
Section 76, LRA
(1)An employer may not take into employment any person-
(a) to continue or maintain production during a protected strike if whole or a part of the employer’s service has been designated a maintenance service; or
(b) for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.
(2) For the purpose of this section, ‘take into employment’ includes engaging the services of a temporary employment service or an independent contractor.
“Take into employment” has been interpreted to mean that employers may not employ new persons to replace striking employees on a temporary or permanent basis. An employer may use its existing employees to continue with operations.
The aim is to discourage employers from resorting to an offensive lock-out and to discourage employees from resorting to strike action.