Chapter IV: Strikes and Lock-outs

64. 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-

1. the issue in dispute has been referred to a council or to the Commission as required by this Act , and-

   1. a certificate stating that the dispute remains unresolved has been issued; or

   2. 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-

2. 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-

   1. 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

   2. 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' organization; or

3. 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
4. in 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-

1. a refusal-

   1. to recognise a trade union as a collective bargaining agent; or

   2. to agree to establish a bargaining council;

2. a withdrawal of recognition of a collective bargaining agent;
3. a resignation of a party from a bargaining council;

4. a dispute about-

   1. appropriate bargaining units;
   2. appropriate bargaining levels; or
   3. bargaining subjects.

3. The requirements of subsection (1) do not apply to a strike or a lock-out if-

1. 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;
2. the strike or lock-out conforms with the procedures in a collective agreement;
3. the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;
4. 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
5. 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)-

1. require the employer not to implement unilaterally the change to terms and conditions of employment; or
2. 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.

65. 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-

1. that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;
2. that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;
3. 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;

4. that person is engaged in-

   1. an essential service; or
   2. a maintenance service. (Essential services, agreed minimum services and maintenance services are regulated in sections 71 to 75.)

2.

1. Despite section 65(1)(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. (These sections deal with organisational rights.)
2. If the registered trade union has given notice of the proposed strike in terms of section 64(1) 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-

1. if that person is bound by-

   1. any arbitration award or collective agreement that regulates the issue in dispute; or

   2. any determination made in terms of section 44 by the Minister that regulates the issue in dispute; or

2. any determination made in terms of the Wage Act and that regulates the issue in dispute, during the first year of that determination.

66. 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-

1. the strike that is to be supported complies with the provisions of sections 64 and 65;
2. 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
3. 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.

67. 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 delict or a breach of contract by taking part in-

1. a protected strike or a protected lock-out; or
2. 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-

1. 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
2. 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-

1. participating in a protected strike or a protected lock-out; or
2. 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 offense.

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 offense.

68. 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-

1. to grant an interdict or order to restrain- (See flow diagram No. 6 in Schedule 4)

   1. any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or

   2. any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out;

2. to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, having regard to-

   1. whether-

      (aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts;
      (bb) the strike or lock-out was premeditated;
      (cc) the strike or lock-out was in response to unjustified conduct by another party to the dispute ; and
      (dd) there was compliance with an order granted in terms of paragraph (a);

2. the interests of orderly collective bargaining;
3. the duration of the strike or lock-out; and
4. 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-

1. the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order;
2. the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and
3. 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.

69. Picketing

See flow diagram No. 7 in Schedule 4.

1. A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating-

1. in support of any protected strike; or
2. in opposition to any lock-out.

2. Despite any law regulating the right of assembly, a picket authorised in terms of subsection (1), may be held -

1. in any place to which the public has access but outside the premises of an employer; or
2. 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-

1. the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised; and
2. 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-

1. an allegation that the effective use of the right to picket is being undermined;
2. an alleged material contravention of subsection (1) or (2);
3. an alleged material breach of an agreement concluded in terms of subsection (4); or
4. 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.

70. 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-

1. 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
2. designate one of the members of the committee as its chairperson.

2. The functions of the essential services committee are-

1. 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;
2. to determine disputes as to whether or not the whole or a part of any service is an essential service; and
3. to determine whether or not the whole or a part of any service is a maintenance service. (A maintenance service is defined in section 75.)

3. At the request of a bargaining council , the essential services committee must conduct an investigation in terms of subsection (2)(a).

71. 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-

1. to submit written representations; and
2. 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. (These notices are reproduced here.)

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.

72. 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-

1. the agreed minimum services are to be regarded as an essential service in respect of the employer and its employees; and
2. the provisions of section 74 do not apply.

73. 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:

1. whether or not a service is an essential service; or
2. 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.

74. Disputes in essential services

(See flow diagram No. 8 in Schedule 4.)

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-

1. a council , if the parties to the dispute fall within the registered scope of that council; or
2. 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-

1. 14 days after the date of the award, unless a Minister has tabled the award in Parliament within that period; or
2. 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-

1. 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;
2. 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.

75. 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 -

1. the terms and conditions of employment of the employees engaged in the maintenance service are determined by collective bargaining; or
2. 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 -

1. the provisions of section 74 will apply to the arbitration; and
2. 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.

76. Replacement labour

1. An employer may not take into employment any person-

1. 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
2. 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.

77. 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-

1. the protest action has been called by a registered trade union or federation of trade unions;

2. the registered trade union or federation of trade unions has served a notice on NEDLAC stating-

   1. the reasons for the protest action; and

   2. the nature of the protest action;

3. 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
4. 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-

1. 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);

2. in respect of protest action that complies with subsection (1), to grant a declaratory order contemplated by subsection (4), after having considered-

   1. the nature and duration of the protest action;
   2. the steps taken by the registered trade union or federation of trade unions to minimise the harm caused by the protest action; and
   3. 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-

1. 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
2. otherwise acts in contempt of an order of the Labour Court made in terms of this section.