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VOLUME: IV
PUBLIC SERVICE
CHAPTER: 26:01
Part:XII Industrial Action ss 4749

47.     Strikes by management

          Notwithstanding the provisions of section 48 (1), a person in senior management of the public service shall not engage in a strike or action short of a strike.

48.     Lawful strikes, etc.

          (1) An employee who takes part in a strike or lockout in compliance with the provisions of this Part does not commit a delict or a breach of contract.

          (2) An employee who takes part in a strike or lockout shall not be dismissed for doing so, but this shall not preclude the employer from dismissing such employee during a strike or lockout for any other reason that is valid and fair.

          (3) Notwithstanding subsection (1), the employer is not obliged to remunerate an employee for services that the employee does not render during the strike or lockout in compliance with the provisions of this Part.

          (4) The employer may not institute civil proceedings against any person for participating in a strike or lockout carried out in compliance with this Part except any act in contemplation or furtherance of a strike that constitutes defamation or an offence.

49.     Certain strikes or lockouts not permitted

          (1) An employee shall not engage in a strike or lockout-

    (a)     which is not in compliance with the provisions of this Part or an agreed procedure; or

    (b)     is in breach of a peace clause in a collective agreement;

    (c)     the subject matter of which is not a dispute in terms of this Act;

    (d)     the subject matter of which is not a matter regulated by a collective agreement; or

    (e)     the subject matter of which the parties to the dispute have agreed to refer to arbitration or to the Industrial Court for adjudication.

          (2) The Industrial Court may interdict-

    (a)     a strike or lockout that is not in compliance with this Act; or

    (b)     conduct-

         (i)       in contemplation or in furtherance of a strike or lockout; and

         (ii)       that is not in compliance with this Act.

          (3) No interdict contemplated under subsection (2) may be granted unless-

    (a)     the applicant has given the prescribed notice to the respondent of its intention to apply for an interdict;

    (b)     the applicant has served a copy of the notice and application on the Bargaining Council established under section 50; and

    (c)     the respondent has been given a reasonable opportunity to be heard before a decision is made.

          (4) An employee who wilfully breaches his contract of employment knowing or having reasonable cause to believe that the probable consequence of his or her doing so, either alone or in combination with others, will be-

    (a)     to deprive the public or any section of the public, either wholly or to a substantial extent, of an essential service or substantially to diminish the enjoyment of an essential service by the public or by any section of the public; or

    (b)     to endanger human life or public health or to cause serious bodily injury to any person or to expose valuable property, whether movable or immovable, to the risk of destruction, deterioration, loss or serious damage, is guilty of an offence and is liable to a fine not exceeding P2 000 or to imprisonment for a term not exceeding 12 months, or both.

          (5) Any person who causes, procures, counsels, or influences any employee to breach his or her contract of employment, knowing or having reasonable cause to believe that the probable consequence of that employee's breach of his or her contract of employment, either alone or in combination with others, will be any of the consequences specified in subsection (3), commits an offence and is liable to a fine not exceeding P10 000 or to imprisonment for a term not exceeding 24 months, or to both.

          (6) For the purposes of this Act," essential service" means a service the interruption of which endangers, or is likely to endanger, the life, personal safety or health of the whole or part of the population.

          (7) Notwithstanding the generality of subsection (6)," essential services" include those services listed as such under the Schedule to the Trade Disputes Act.