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.
