Chapter IV: Strikes and Lock-outs
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).

  1. Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service.

  1. 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.