Changing the issue in dispute during strike action

Abstract

Section 23(2) of the Constitution gives every worker the right to strike and the LRA gives effect to that right. Section 64 of the LRA, however, requires that the issue in dispute first be referred to a bargaining council or the CCMA before a strike can be called. A certificate declaring that the issue in dispute was not resolved or 30 days or, alternatively, any extension must lapse and notice must be given to the employer before a strike can commence. Generally, the issue in dispute referred to conciliation must be the same issue in dispute over which that the strike was called. The question that arises is what will happen to the status of the strike if the issue in dispute or the demand changes during the course of the strike. Reference was made to literature study in which the criteria were set out on how to determine the true issue in dispute. Suggestions were also made on how to declare strike action unprotected should an employer be of the view that its workers are striking over a different issue in dispute or demand than the one that was referred to conciliation.