What are unlawful demands from employers – Employment guide

Bites Editor

6 months ago

When an employer demands work that falls outside the contract, a collective refusal may not be a “strike”. That distinction matters because it changes the legal process, the risk of discipline, and the remedies available to both sides.

This article provides general information, not legal advice. Consider consulting a labour law practitioner for advice on your specific facts.

Key takeaways

A refusal to work may fall outside “strike” action if no duty exists in the contract.
The LRA’s strike definition includes overtime, whether voluntary or compulsory.
You may not require public holiday work unless an agreement exists.
Sunday work must follow BCEA pay and rest rules, and it must fit the contract.
Follow section 64 steps for protection, or the strike may be unprotected.

What the law means by a “strike” in South Africa

The Labour Relations Act 66 of 1995 (LRA) defines a strike as a concerted refusal to work. It also covers a slowdown or obstruction of work.

The refusal must aim to remedy a grievance or resolve a dispute.

The dispute must concern a matter of mutual interest between employer and employee.

Importantly, the definition treats “work” as including overtime.That applies whether overtime is voluntary or compulsory.

However, a key question often decides the outcome. Did employees refuse work they were obliged to perform under the contract?

Overview of the key case – G4S Cash Solutions v MTWU (2016)

In G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union and Others (26 May 2016), the employer required Sunday and public holiday work. Employees refused because the employer offered no increased remuneration for those days.

The employer argued the refusal met the statutory strike definition. The Labour Appeal Court focused on contractual obligation and working time structure.

The contracts regulated overtime, yet they did not create a duty to work every Sunday. Because the employer lacked a contractual right to compel Sunday work in that way, the refusal did not amount to a strike on these facts.

The case sends a clear message. If the demand does not arise from the contract, the refusal may fall outside strike territory.

Unlawful demands and why they matter

Employees often demand improved pay or changed hours through collective pressure. That demand may still be a matter of mutual interest.

However, the law also tests whether the demand is lawful and permitted.

In TAWU v Unitrans (Constitutional Court, 2016), the employer argued that demands were unlawful and would make the strike unprotected.

You should treat “unlawful demands” as a warning light. They can change whether strike action stays protected or becomes high-risk.

Why contractual terms decide whether a refusal is a strike

Contractual work versus “requested” work

An employer may issue lawful and reasonable instructions linked to the job. Employees take risk when they refuse contractual duties as collective pressure.

Yet the contract still sets boundaries. If the employer demands work outside agreed duties or hours, the analysis changes. G4S shows the point in practical terms. An overtime clause did not equal a seven-day working week.

Overtime wording is not always enough

Many contracts say employees may not “unreasonably refuse overtime”. That wording still needs context and clear limits. If the employer needs regular Sunday work, state it clearly.
Also align it with BCEA working time and rest rules.

Sundays and public holidays need specific legal handling

Sunday work: pay and rest rules

The BCEA sets minimum pay rules for Sunday work. Employers must pay double for Sunday hours, unless the employee ordinarily works Sundays.

If the employee ordinarily works Sundays, the minimum is time-and-a-half. The BCEA also protects weekly rest arrangements through minimum rest periods.

Sunday work is not automatically prohibited. However, it must fit the contract and comply with BCEA minimums.

Public holidays – you need an agreement

The BCEA is direct on public holidays. An employer may not require work on a public holiday except under an agreement.

This point matters in discipline decisions. If no agreement exists, the employer takes serious legal risk by disciplining refusal.

Protected and unprotected strikes – process decides the risk

Even if a refusal counts as a strike, it is not automatically protected. Protection depends on following LRA procedures in section 64. In most cases, employees or unions must refer the dispute for conciliation. They must then wait for a certificate of non-resolution or 30 days to pass.

If parties skip these steps, the strike may be unprotected. That increases interdict risk and raises disciplinary exposure. Section 65 also limits strike action in certain situations.
For example, parties cannot strike where the issue must go to arbitration or court under the LRA.

What employers should do

Build Sunday and public holiday work into contracts properly

State whether the role includes Sunday work and how often it occurs. Also state how shifts may fall on public holidays, and record agreement clearly.

Avoid vague reliance on “overtime” clauses alone. Instead, specify patterns, rotation, and notice rules.

Align rosters and pay with the BCEA

Apply Sunday pay rules correctly, and keep payroll evidence. Use paid time off alternatives only where the BCEA permits them. Confirm you have an agreement before scheduling public holiday work. Then apply the BCEA pay rules for public holidays consistently.

Consult before you enforce major changes

Consult early when you need changed shifts or additional Sunday coverage. Document proposals, responses, and the final agreed position. Do not announce a major change and discipline refusal immediately. That approach often inflames conflict and increases legal exposure.

Treat disputes as labour relations issues first

Ask whether you face a dispute about terms and conditions. If so, use consultation and dispute resolution mechanisms before discipline. Use discipline only where misconduct exists and fairness supports it. Unprotected strike participation can still require careful fairness analysis.

What employees should know

Check your contract and policies first

Your rights often turn on what you agreed to do. Review your hours clause, overtime clause, and rostering policy. If the contract does not require Sunday work, raise it early.
Do so in writing, and propose a practical alternative.

Public holidays work differently

The BCEA requires an agreement for public holiday work. If no agreement exists, you can generally refuse that work lawfully.

A “work refusal” can still become a strike

If you refuse contractual duties as collective pressure, the LRA may treat it as a strike. Therefore, follow section 64 steps if you want protection.

Get advice before collective action

Small factual differences can change everything. They can change protection, discipline risk, and the correct forum.

Regulatory considerations

Drafting and updating working time terms

A shift change can alter terms and conditions. Therefore, record changes in writing and keep version control. Align working time arrangements with BCEA minimum standards.
Also keep clear rosters to prove what “ordinary” work patterns are.

Protected strike procedure under the LRA

Section 64 sets the core requirements for protected strikes. Referral and waiting periods usually determine protection. Section 65 limits strike action in certain disputes.
So, check whether the dispute must go to arbitration or court instead.

FAQ: Unlawful demands

If employees refuse Sunday work, is it always a strike?

No. It depends on the contract and the purpose of the refusal. A concerted refusal can still fall outside strike action where no duty exists.

Does an overtime clause mean employees must work Sundays?

Not automatically. A general overtime clause may not create a duty to work every Sunday. The G4S case rejected that leap on its facts.

Can an employer force employees to work on a public holiday?

Only if an agreement exists. The BCEA forbids requiring public holiday work without agreement.

What is the safest way to implement regular Sunday work?

Consult and document the change. Then update contracts and rosters. Finally, apply BCEA Sunday pay and rest rules correctly.

What makes a strike “protected”?

Employees must follow the LRA process. This includes conciliation referral and waiting periods. Protection usually follows a certificate of non-resolution or 30 days passing after referral.