LABOUR RELATIONS ACT - CHAPTER 1
LABOUR RELATIONS ACT - CHAPTER 2
LABOUR RELATIONS ACT - CHAPTER 3
LABOUR RELATIONS ACT - CHAPTER 5
Labour Relations Act
Chapter IV
Strikes And Lock Outs
1.
Right to strike and recourse to lock out
(1)
Every employee has the right to
strike and every employer has recourse to lock out if-
(a)
the issue in dispute has been
referred to a council or to the Commission as required by this Act, and-
(i)
a certificate stating that the
dispute remains unresolved has been issued; or
(ii)
a period of 30 days, or any
extension of that period agreed to between the parties to the dispute, has
elapsed since the referral was received by the council or the Commission; and
after that-
(b)
in the case of a proposed
strike, at least 48 hours' notice of the commencement of the strike, in
writing, has been given to the employer, unless-
(i)
the issue in dispute relates to
a collective agreement to be concluded in a council, in which case, notice must
have been given to that council; or
(ii)
the employer is a member of an
employers' organisation that is a party to the dispute, in which case, notice
must have been given to that employers' organisation; or
(c)
in the case of a proposed
lock-out, at least 48 hours' notice of the commencement of the lock-out, in
writing, has been given to any trade union that is a party to the dispute, or,
if there is no such trade union, to the employees, unless the issue in dispute
relates to a collective agreement to be concluded in a council, in which case,
notice must have been given to that council; or
(d)
the case of a proposed strike
or lock-out where the State is the employer, at least seven days' notice of the
commencement of the strike or lock-out has been given to the parties
contemplated in paragraphs (b) and (c).
(2)
If the issue in dispute
concerns a refusal to bargain, an advisory award must have been made in terms
of section 135(3)(c) before notice is given in terms of subsection (1)(b) or
(c). A refusal to bargain includes-
(a)
a refusal-
(i)
to recognise a trade union as a
collective bargaining agent; or
(ii)
to agree to establish a
bargaining council;
(b)
a withdrawal of recognition of
a collective bargaining agent;
(c)
a resignation of a party from a
bargaining council;
(d)
a dispute about-
(i)
appropriate bargaining units;
(ii)
appropriate bargaining levels;
or
(iii)
bargaining subjects.
(3)
The requirements of subsection
(1) do not apply to a strike or a lock-out if-
(a)
the parties to the dispute are
members of a council, and the dispute has been dealt with by that council in
accordance with its constitution;
(b)
the strike or lock-out conforms
with the procedures in a collective agreement;
(c)
the employees strike in
response to a lock-out by their employer that does not comply with the
provisions of this Chapter;
(d)
the employer locks out its
employees in response to their taking part in a strike that does not conform
with the provisions of this Chapter; or
(e)
the employer fails to comply
with the requirements of subsections (4) and (5).
(4)
Any employee who or any trade
union that refers a dispute about a unilateral change to terms and conditions
of employment to a council or the Commission in terms of subsection (1)(a) may,
in the referral, and for the period referred to in subsection (1)(a)-
(a)
require the employer not to
implement unilaterally the change to terms and conditions of employment; or
(b)
if the employer has already
implemented the change unilaterally, require the employer to restore the terms
and conditions of employment that applied before the change.
(5)
The employer must comply with a
requirement in terms of subsection (4) within 48 hours of service of the
referral on the employer.
2.
Limitations on right to strike or recourse to lock-out
(1)
No person may take part in a
strike or a lock-out or in any conduct in contemplation or furtherance of a
strike or a lock-out if-
(a)
that person is bound by a
collective agreement that prohibits a strike or lock-out in respect of the
issue in dispute;
(b)
that person is bound by an
agreement that requires the issue in dispute to be referred to arbitration;
(c)
the issue in dispute is one
that a party has the right to refer to arbitration or to the Labour Court in
terms of this Act;
(d)
that person is engaged in-
(i)
an essential service; or
(ii)
a maintenance service. 13
(2)
(a) Despite section 65(l)(c),
a person may take part in a strike or a lock-out or in any conduct in
contemplation or in furtherance of a strike or lock out if the issue in dispute
is about any matter dealt with in sections 12 to 15. 14
(b)
If the registered trade union
has given notice of the proposed strike in terms of section 64(l) in respect of
an issue in dispute referred to in paragraph (a), it may not exercise the right
to refer the dispute to arbitration in terms of section 21 for a period of 12
months from the date of the notice.
(3)
Subject to a collective
agreement, no person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or lock-out-
(a)
if that person is bound by-
(i)
any arbitration award or
collective agreement that regulates the issue in dispute; or
(ii)
any determination made in terms
of section 44 by the Minister that regulates the issue in dispute; or
(b)
any determination made in terms
of the Wage Act and that regulates the issue in dispute, during the first year
of that determination.
11.
Essential
services, agreed minimum services and maintenance services are regulated in
sections 71 to 75.
12.
These
sections deal with organisational rights.
3.
Secondary strikes
(1)
In this section "secondary
strike" means a strike, or conduct in contemplation or furtherance of a
strike, that is in support of a strike by other employees against their
employer but does not include a strike in pursuit of a demand that has been
referred to a council if the striking employees, employed within the registered
scope of that council, have a material interest in that demand.
(2)
No person may take part in a
secondary strike unless-
(a)
the strike that is to be
supported complies with the provisions of sections 64 and 65;
(b)
the employer of the employees
taking part in the secondary strike or, where appropriate, the employers'
organisation of which that employer is a member, has received written notice of
the proposed secondary strike at least seven days prior to its commencement;
and
(c)
the nature and extent of the
secondary strike is reasonable in relation to the possible direct or indirect
effect that the secondary strike may have on the business of the primary
employer.
(3)
Subject to section 68(2) and
(3), a secondary employer may apply to the Labour Court for an interdict to
prohibit or limit a secondary strike that contravenes subsection (2).
(4)
Any person who is a party to
proceedings in terms of subsection (3), or the Labour Court, may request the
Commission to conduct an urgent investigation to assist the Court to determine
whether the requirements of subsection (2)(c) have been met.
(5)
On receipt of a request made in
terms of subsection (4), the Commission must appoint a suitably qualified
person to conduct the investigation, and then submit, as soon as possible, a
report to the Labour Court.
(6)
The Labour Court must take
account of the Commission's report in terms of subsection (5) before making an
order.
4.
Strike or lock-out in compliance with this Act
(1)
In this Chapter,
"protected strike" means a strike that complies with the provisions
of this Chapter and "protected lock-out" means a lock-out that
complies with the provisions of this Chapter.
(2)
A person does not commit a
defect or a breach of contract by taking part in-
(a)
a protected strike or a
protected lock-out; or
(b)
any conduct in contemplation or
in furtherance of a protected strike or a protected lock-out.
(3)
Despite subsection (2), an
employer is not obliged to remunerate an employee for services that the
employee does not render during a protected strike or a protected lock-out,
however-
(a)
if the employee's remuneration
includes payment in kind in respect of accommodation, the provision of food and
other basic amenities of life, the employer, at the request of the employee,
must not discontinue payment in kind during the strike or lock-out; and
(b)
after the end of the strike or
lock-out, the employer may recover the monetary value of the payment in kind
made at the request of the employee during the strike or lock-out from the
employee by way of civil proceedings instituted in the Labour Court.
(4)
An employer may not dismiss an
employee for participating in a protected strike or for any conduct in
contemplation or in furtherance of a protected strike.
(5)
Subsection (4) does not
preclude an employer from fairly dismissing an employee in accordance with the
provisions of Chapter VIII for a reason related to the employee's conduct
during the strike, or for a reason based on the employer's operational
requirements.
(6)
Civil legal proceedings may not
be instituted against any person for-
(a)
participating in a protected
strike or a protected lock-out; or
(b)
any conduct in contemplation or
in furtherance of a protected strike or a protected lock-out.
(7)
The failure by a registered
trade union or a registered employers' organisation to comply with a provision
in its constitution requiring it to conduct a ballot of those of its members in
respect of whom it intends to call a strike or lock-out may not give rise to,
or constitute a ground for, any litigation that will affect the legality of,
and the protection conferred by this section on, the strike or lock-out.
(8)
The provisions of subsections
(2) and (6) do not apply to any act in contemplation or in furtherance of a
strike or a lock-out, if that act is an offence.
(9)
Any act in contemplation or in
furtherance of a protected strike or a protected lock-out that is a
contravention of the Basic Conditions of Employment Act or the Wage Act does
not constitute an offence.
5.
Strike or lock-out not in compliance with this Act
(1)
In the case of any strike or
lock-out, or any conduct in contemplation or in furtherance of a strike or
lock-out, that does not comply with the provisions of this Chapter, the Labour
Court has exclusive jurisdiction-
(a)
to grant an interdict or order
to restrain-15
(i)
any person from participating
in a strike or any conduct in contemplation or in furtherance of a strike; or
(ii)
any person from participating
in a lock-out or any conduct in contemplation or in furtherance of a lock-out;
(b)
to order the payment of just
and equitable compensation for any loss attributable to the strike or lock-out,
or conduct, having regard to-
(i)
whether -
1.
attempts were made to comply
with the provisions of this Chapter and the extent of those attempts;
2.
the strike or lock-out or
conduct was premeditated;
3.
the strike or lock out, or
conduct was in response to unjustified conduct by another party to the dispute;
and
4.
there was compliance with an
order granted in terms of paragraph (a);
(ii)
the interests of orderly
collective bargaining;
(iii)
the duration of the strike or
lock out or conduct; and
(iv)
the financial position of the
employer, trade union or employees respectively.
(2)
The Labour Court may not grant
any order in terms of subsection (1)(a) unless 48 hours' notice of the
application has been given to the respondent: However, the Court may permit a
shorter period of notice if-
(a)
the applicant has given written
notice to the respondent of the applicant's intention to apply for the granting
of an order;
(b)
the respondent has been given a
reasonable opportunity to be heard before a decision concerning that
application is taken; and
(c)
the applicant has shown good
cause why a period shorter than 48 hours should be permitted.
(3)
Despite subsection (2), if
written notice of the commencement of the proposed strike or lock-out was given
to the applicant at least 10 days before the commencement of the proposed
strike or lock-out, the applicant must give at least five days' notice to the
respondent of an application for an order in terms of subsection (1)(a).
(4)
Subsections (2) and (3) do not
apply to an employer or an employee engaged in an essential service or a
maintenance service.
(5)
Participation in a strike that
does not comply with the provisions of this Chapter, or conduct in
contemplation or in furtherance of that strike, may constitute a fair reason
for dismissal. In determining whether or not the dismissal is fair, the Code of
Good Practice: Dismissal in Schedule 8 must be taken into account.
15.
See flow
diagram No. 6 in Schedule 4.
6.
Picketing 16
(1)
A registered trade union may
authorise a picket by its members and supporters for the purposes of peacefully
demonstrating-
(a)
in support of any protected
strike; or
(b)
in opposition to any lockout.
(2)
Despite any law regulating the
right of assembly, a picket authorised in terms of subsection (1), may be held-
(a)
in any place to which the
public has access but outside the premises of an employer; or
(b)
with the permission of the
employer, inside the employer's premises.
(3)
The permission referred to in
subsection (2)(b) may not be unreasonably withheld.
(4)
If requested to do so by the
registered trade union or the employer, the Commission must attempt to secure
an agreement between the parties to the dispute on rules that should apply to
any picket in relation to that strike or lock-out.
(5)
If there is no agreement, the
Commission must establish picketing rules, and in doing so must take account
of-
(a)
the particular circumstances of
the workplace or other premises where it is intended that the right to picket
is to be exercised; and
(b)
any relevant code of good
practice.
(6)
The rules established by the
Commission may provide for picketing by employees on their employer's premises
if the Commission is satisfied that the employer's permission has been
unreasonably withheld.
(7)
The provisions of section 67,
read with the changes required by the context, apply to the call for,
organisation of, or participation in a picket that complies with the provisions
of this section.
(8)
Any party to a dispute about
any of the following issues may refer the dispute in writing to the Commission-
(a)
an allegation that the
effective use of the right to picket is being undermined;
(b)
an alleged material
contravention of subsection (1) or (2);
(c)
an alleged material breach of
an agreement concluded in terms of subsection (4); or
(d)
an alleged material breach of a
rule established in terms of subsection (5).
(9)
The party who refers the
dispute to the Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(10)
The Commission must attempt to
resolve the dispute through conciliation.
(11)
If the dispute remains
unresolved, any party to the dispute may refer it to the Labour Court for
adjudication.
16.
See flow
diagram No. 7 in Schedule 4.
7.
Essential services
committee
(1) The Minister, after
consulting NEDLAC, and in consultation with the Minister for the Public Service
and Administration, must establish an essential services committee under the
auspices of the Commission and –
(a)
appoint to that committee, on
any terms that the Minister considers fit, persons who have knowledge and
experience of labour law and labour relations; and
(b)
designate one of the members of
the committee as its chairperson.
(2)
The functions of the essential
services committee are-
(a)
to conduct investigations as to
whether or not the whole or a part of any service is an essential service, and
then to decide whether or not to designate the whole or a part of that service
as an essential service;
(b)
to determine disputes as to
whether or not the whole or a part of any service is an essential service; and
(c)
to determine whether or not the
whole or a part of any service is a maintenance service. 17
(3)
At the request of a bargaining
council, the essential services committee must conduct an investigation in terms
of subsection (2)(a).
17. A maintenance service is defined in section
75.
8.
Designating a service as
an essential service
(1)
The essential services
committee must give notice in the Government Gazette of any investigation that
it is to conduct as to whether the whole or a part of a service is an essential
service.
(2)
The notice must indicate the
service or the part of a service that is to be the subject of the investigation
and must invite interested parties, within a period stated in the notice-
(a)
to submit written
representations; and
(b)
to indicate whether or not they
require an opportunity to make oral representations.
(3)
Any interested party may
inspect any written representations made pursuant to the notice, at the
Commission's offices.
(4)
The Commission must provide a
certified copy of, or extract from, any written representations to any person
who has paid the prescribed fee.
(5)
The essential services
committee must advise parties who wish to make oral representations of the
place and time at which they may be made.
(6)
Oral representations must be
made in public.
(7)
After having considered any
written and oral representations, the essential services committee must decide
whether or not to designate the whole or a part of the service that was the
subject of the investigation as an essential service.
(8)
If the essential services
committee designates the whole or a part of a service as an essential service,
the committee must publish a notice to that effect in the Government Gazette.
(9)
The essential services committee
may vary or cancel the designation of the whole or a part of a service as an
essential service, by following the provisions set out in subsections (1) to
(8), read with the changes required by the context.
(10)
The Parliamentary service and
the South African Police Service are deemed to have been designated an
essential service in terms of this section.
9.
Minimum services
The essential services committee
may ratify any collective agreement that provides for the maintenance of
minimum services in a service designated as an essential service, in which
case-
(a)
the agreed minimum services are
to be regarded as an essential service in respect of the employer and its
employees; and
(b)
the provisions of section 74 do
not apply.
10.
Disputes about whether a
service is an essential service
(1)
Any party to a dispute about
either of the following issues may refer the dispute in writing to the
essential services committee-
(a)
whether or not a service is an
essential service; or
(b)
whether or not an employee or
employer is engaged in a service designated as an essential service.
(2)
The party who refers the
dispute to the essential services committee must satisfy it that a copy of the
referral has been served on all the other parties to the dispute.
(3)
The essential services committee
must determine the dispute as soon as possible.
11. Disputes in essential services18
(1)
Any party to a dispute that is
precluded from participating in a strike or a lock-out because that party is
engaged in an essential service may refer the dispute in writing to
(a)
a council, if the parties to
the dispute fall within the registered scope of that council; or
(b)
the Commission, if no council
has jurisdiction
(2)
The party who refers the
dispute must satisfy the council or the Commission that a copy of the referral
has been served on all the other parties to the dispute.
(3)
The council or the Commission
must attempt to resolve the dispute through conciliation.
(4)
If the dispute remains
unresolved, any party to the dispute may request that the dispute be resolved
through arbitration by the council or the Commission.
(5)
Any arbitration award in terms
of subsection (4) made in respect of the State and that has financial
implications for the State becomes binding-
(a)
14 days after the date of the
award, unless a Minister has tabled the award in Parliament within that period;
or
(b)
14 days after the date of
tabling the award, unless Parliament has passed a resolution that the award is
not binding.
(6)
If Parliament passes a
resolution that the award is not binding, the dispute must be referred back to
the Commission for further conciliation between the parties to the dispute and
if that fails, any party to the dispute may request the Commission to
arbitrate.
(7)
If Parliament is not in session
on the expiry of
(a)
the period referred to in
subsection (5)(a), that period or the balance of that period will run from the
beginning of the next session of Parliament;
(b)
the period referred to in
subsection (5)(b), that period will run from the expiry of the period referred
to in paragraph (a) of this subsection or from the beginning of the next
session of Parliament.
18.
See
flow diagram No. 8 in Schedule 4.
12.
Maintenance services
(1)
A service is a maintenance
service if the interruption of that service has the effect of material physical
destruction to any working area, plant or machinery.
(2)
If there is no collective
agreement relating to the provision of a maintenance service, an employer may
apply in writing to the essential services committee for a determination that
the whole or a part of the employer's business or service is a maintenance
service.
(3)
The employer must satisfy the
essential services committee that a copy of the application has been served on
all interested parties.
(4)
The essential services
committee must determine, as soon as possible, whether or not the whole or a
part of the employer’s business or service is a maintenance service.
(5)
As part of its determination in
terms of subsection (4), the essential services committee may direct that any
dispute in respect of which the employees engaged in a maintenance service
would have had the right to strike, but for the provisions of section
65(1)(d)(ii), be referred to arbitration.
(6)
The committee may not make a
direction in terms of subsection (5) if –
(a)
the terms and conditions of
employment of the employees engaged in the maintenance service are determined
by collective bargaining; or
(b)
if the number of employees
prohibited from striking because they are engaged in the maintenance service
does not exceed the number of employees who are entitled to strike.
(7)
If a direction in terms of
subsection (5) requires a dispute to be resolved by arbitration –
(a)
the provisions of section 74
will apply to the arbitration; and
(b)
any arbitration award will be
binding on the employees engaged in the maintenance service and their employer,
unless the terms of the award are varied by a collective agreement.
13.
Replacement labour
(1)
An employer may not take into
employment any person-
(a)
to continue or maintain
production during a protected strike if the 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.
14.
Protest action to
promote or defend socio-economic interests of workers
(1)
Every employee who is not
engaged in an essential service or a maintenance service has the right to take
part in protest action if-
(a)
the protest action has been
called by a registered trade union or federation of trade unions;
(b)
the registered trade union or
federation of trade unions has served a notice on NEDLAC stating-
(i)
the reasons for the protest
action; and
(ii)
the nature of the protest
action;
(c)
the matter giving rise to the
intended protest action has been considered by NEDLAC or any other appropriate
forum in which the parties concerned are able to participate in order to
resolve the matter; and
(d)
at least 14 days before the
commencement of the protest action, the registered trade union or federation of
trade unions has served a notice on NEDLAC of its intention to proceed with the
protest action.
(2)
The Labour Court has exclusive
jurisdiction-
(a)
to grant any order to restrain
any person from taking part in protest action or in any conduct in
contemplation or in furtherance of protest action that does not comply with
subsection (1);
(b)
in respect of protest action
that complies with subsection (1), to grant a declaratory order contemplated by
subsection (4), after having considered-
(i)
the nature and duration of the
protest action;
(ii)
the steps taken by the
registered trade union or federation of trade unions to minimise the harm
caused by the protest action; and
(iii)
the conduct of the participants
in the protest action.
(3)
A person who takes part in
protest action or in any conduct in contemplation or in furtherance of protest
action that complies with subsection (1), enjoys the protections conferred by
section 67.
(4)
Despite the provisions of
subsection (3), an employee forfeits the protection against dismissal conferred
by that subsection, if the employee-
(a)
takes part in protest action or
any conduct in contemplation or in furtherance of protest action in breach of
an order of the Labour Court; or
(b)
otherwise acts in contempt of
an order of the Labour Court made in terms of this section.