CHAPTER FOUR STRIKES AND LOCK-OUTS
(ss 64-77)

64. Right to strike and recourse to lock-out

Every employee has the right to strike and every employer has recourse to lock-out if-

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

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

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-

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-

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

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

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

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).

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 refusal

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

to agree to establish a bargaining council;

a withdrawal of recognition of a collective bargaining agent;

a resignation of a party from a bargaining council;

a dispute about

appropriate bargaining units;

appropriate bargaining levels; or

bargaining subjects.

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

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;

the strike or lock-out conforms with the procedures in a collective agreement;

the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;

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

the employer fails to comply with the requirements of subsections (4) and (5).

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)

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

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.

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

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-

that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;

that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;

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 or any other employment law and;

that person is engaged in

an essential service; or

a maintenance service.*

*Essential services agreed minimum services and maintenance services are regulated in sections 71 to 75.

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.

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.

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-

if that person is bound by-

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

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

any determination made in terms of the Chapter Eight of the Basic Conditions of Employment Act and that regulates the issue in dispute, during the first year of that determination.

66. Secondary strikes

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.

[Sub-s. (1) substituted by s. 19 of Act No. 42 of 1996 (English text only).]

No person may take part in a secondary strike unless-

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

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

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.

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).

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.

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.

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

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.

A person does not commit a delict or a breach of contract by taking part in-

a protected strike or a protected lock-out; or

any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.

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-

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 the payment in kind during the strike or lock-out; and

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.

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.

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.

Civil legal proceedings may not be instituted against any person for

participating in a protected strike or a protected lock-out; or

any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.

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.

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.

68. Strike or lock-out not in compliance with this Act

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-

to grant an interdict or order to restrain*
*See flow diagram No. 6 in Schedule 4.

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

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

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

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 or conduct was premeditated;
(cc) the strike or lock-out or conduct 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);

the interests of orderly collective bargaining;

the duration of the strike or lock-out or conduct; and

the financial position of the employer, trade union or employees respectively.

[Para. (b) substituted by s. 17 of Act No. 12 of 2002.]

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-

the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order;

the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and

the applicant has shown good cause why a period shorter than 48 hours should be permitted.

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).

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

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*

A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating- *See flow diagram No.7 in schedule 4.

in support of any protected strike; or

in opposition to any lock-out.

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

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

with the permission of the employer, inside the employer's premises.

[Sub-s. (2) amended by s. 20 of Act No. 42 of 1996 (English text only).]

The permission referred to in subsection (2) (b) may not be unreasonably withheld.

Unless there is a collective agreement binding on the trade union that regulates picketing, the commissioner conciliating the dispute 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 before the expiry of the period contemplated in section 64(1)(a)(ii).

If there is no collective agreement, or no agreement is reached in terms of subsection (4), the commissioner conciliating the dispute must determine picketing rules, in accordance with any default picketing rules prescribed by the Commission under section 208 or published in any code of good practice and in doing so must take account of-

the particular circumstances of the work-place or other premises where it is intended that the right to picket is to be exercised;

any relevant code of good practice; and

any representations made by the parties to the dispute attending the conciliation meeting.

The rules determined by the commissioner conciliating the dispute may provide for picketing by employees -

in a place contemplated in subsection (2)(a) which is owned or controlled by a person other than the employer, if that person has had an opportunity to make representations to the commissioner conciliating the dispute before the rules are determined; or

on their employer's premises if the commissioner conciliating the dispute is satisfied that the employer's permission has been unreasonably withheld.

6A. The commissioner conciliating the dispute must determine the picketing rules contemplated in subsection (5) at the same time as issuing any certificate contemplated in section 64(1)(a).

6B. The Commission may determine picketing rules under subsections (5) and (6) on a direct application from a registered trade union and on an urgent basis if -

it has referred a dispute about a unilateral change to terms and conditions of employment in accordance with section 64(4) and the employer has not complied with section 64(5); or

the employer has given notice of an intention to commence or has commenced an unprotected lock out.

6C. No picket in support of a protected strike or in opposition to a lockout may take place unless picketing rules -

are agreed to in-

a collective agreement binding on the trade union;

an agreement contemplated in subsection (4); or

have been determined in terms of subsection (5).

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.

Any party to a dispute about any of the following issues, including a person contemplated in subsection (6)(a), may refer the dispute in writing to the Commission-

an allegation that the effective use of the right to picket is being undermined;

an alleged material contravention of subsection (1) or (2);

an alleged material breach of a collective agreement or an agreement contemplated in subsection (4); or

an alleged material breach of a picketing rule determined in terms of subsection (5).

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.

The Commission must attempt to resolve the dispute through conciliation.

If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

If a party has referred a dispute in terms of subsection (8) or (11), the Labour Court may , in addition to any relief contemplated in section 68(1), grant relief, including urgent interim relief, which is just and equitable in the circumstances and which may include an order-

directing any party, including a person contemplated in subsection (6)(a), to comply with a picketing agreement or rule;

varying the terms of a picketing agreement or rule; or

suspending a picket at one or more of the locations designated in the collective agreement, agreed rules contemplated in subsection (4) or rules determined by the Commission.

The Labour Court may not grant an order in terms of subsection (12) unless-

48 hours' notice of an application seeking relief referred to in subsection (12)(a) or (b) has been given to the respondent; or

72 hours' notice of an application seeking relief referred to in subsection (12)(c) or (d) has been given to the respondent.

The Labour Court may permit a shorter period of notice than required by subsection (13) if the-

applicant has given written notice to the respondent of its intention to apply for the order;

respondent has been given a reasonable opportunity to be heard before a decision concerning the application is taken; and

applicant has shown good cause why a period shorter than that contemplated by subsection (13) should be permitted.

For the purposes of this section, 'commissioner conciliating the dispute' includes a person appointed by a bargaining council to conciliate the dispute.

70. Essential services committee
The Minister, after consulting NEDLAC, must establish an essential services committee under the auspices of the Commission in accordance with the provisions of this Act.

70A. Composition of essential services committee

The Minister must appoint to the essential services committee on terms that the Minister considers fit -

a chairperson, who is independent from the constituencies contemplated in subsection (3) and who may be a senior commissioner;

a deputy chairperson, who must be a senior commissioner; and

six persons nominated in accordance with the provisions of subsections (3) and (4).

A member of the essential services committee-

must be a citizen of South Africa, who is ordinarily resident in South Africa, or a permanent resident of South Africa;

must have suitable qualifications or experience in labour law, labour relations, commerce, public affairs, the administration of justice, industry or a sector of the economy;

must not be an unrehabilitated insolvent; and

must not be subject to an order of a competent court holding that person to be mentally unfit or disordered.

Organised business, labour and government at NEDLAC must each nominate to the Minister the names of two persons to be appointed to the essential services committee.

The Minister must appoint the persons nominated by organised business, labour and government at NEDLAC if these persons meet the requirements set out in subsection (2).

The Minister may fill any vacancy that arises in accordance with the provisions of this section.

A member of the essential services committee may not represent any person before a panel of the essential services committee, but may be appointed by the trade union and employer parties to serve as an assessor in terms of section 70C.

70B. Powers and functions of essential services committee

The powers and functions of the essential services committee are to-

monitor the implementation and observance of essential services determinations, minimum services agreements, maintenance services agreements and determinations;

promote effective dispute resolution in essential services;

develop guidelines for the negotiation of minimum services agreements;

decide, on its own initiative or at the reasonable request of any interested party, whether to institute investigations as to whether or not the whole or a part of any service is an essential service;

manage its caseload; and

appoint the panels contemplated in section 70C to perform one or more of the functions set out in section 70D.

At the request of a bargaining council, the essential services committee must establish a panel to perform any function in terms of section 70D(1).

The essential services committee may request the Commission or any other appropriate person to conduct an investigation to assist the essential services committee in an investigation and to submit a report to it.

70C. Appointment of panels

The essential services committee must, taking into account the nature and complexity of the issue, assign each matter before it to a panel consisting of either three or five persons, including the assessors referred to in subsections (3) and (4).

A panel must be presided over by the chairperson or deputy chairperson of the essential services committee or by a senior commissioner referred to in subsection (3).

The Commission must compile a list of suitably trained senior commissioners who may preside at panel hearings.

If the essential services committee constitutes a three-member panel, it must either-

appoint two of its members to serve as assessors; or

invite the employer and trade union parties participating in the hearing to each nominate an assessor.

If the essential services committee constitutes a five-member panel, it must-

appoint two of its members to serve as its assessors; and

invite the employer and trade union parties participating in the hearing to each nominate an assessor.

If the essential services committee appoints assessors from its members to serve on a panel, it must appoint one who was nominated to the essential services committee by-

organised labour; and

organised business or government, depending on the sector concerned.

A member of the essential services committee may be nominated to serve as an assessor in terms of subsections (4)(b) and (5)(b).

The essential services committee may appoint an assessor if the trade union or employer parties participating in the hearing fail to nominate an assessor in terms of subsections (4)(b) and (5)(b) within the prescribed period.

When appointing or nominating an assessor in terms of subsections (4) to (8), the essential services committee, and any party to a matter before it, must take into account the person's skills, experience, expertise and knowledge of the sector concerned.

70D. Powers and functions of panel

The powers and functions of a panel appointed by the essential services committee are to-

conduct investigations as to whether or not the whole or a part of any service is an essential service;

determine whether or not to designate the whole or a part of that service as an essential service;

determine disputes as to whether or not the whole or a part of any service falls within the scope of a designated essential service;

determine whether or not the whole or a part of any service is a maintenance service;

ratify a collective agreement that provides for the maintenance of minimum services in a service designated as an essential service; and

determine, in accordance with the provisions of this Act, the minimum services required to be maintained in the service that is designated as an essential service.

The presiding member of the panel must determine any question of procedure or law, including whether an issue is a question of procedure or law.

The chairperson of the essential services committee or any person contemplated in section 70C(2) presiding at a hearing may, sitting alone, make an order-

extending or reducing any period prescribed by the rules of the essential services committee; and

condoning the late performance of an act contemplated by the rules of the essential services committee.

Subject to subsections (2) and (3), the decision or finding of the majority of the panel is the decision of the essential services committee.

The decision of a panel must be in writing and signed by the person referred to in section 70C(2), and include the reasons for that decision.

Apanel appointed by the essential services committee may make any appropriate order relating to its functions.

70E. Jurisdiction and administration of essential services committee

The essential services committee has jurisdiction throughout the Republic.

The seat of the essential services committee is the Commission's head office.

The functions of the essential services committee, including the functions of the panels, may be performed at any place in the Republic.

The Commission must administer the essential services committee.

The director is the accounting officer of the essential services committee and must allocate adequate resources to the essential services committee in order for it to perform its functions.

The director may appoint staff to the essential services committee after consulting the essential services committee and the governing body, and the governing body must determine their remuneration and other terms and conditions of appointment.

The allowances of members of the essential services committee, assessors and persons appointed to investigate matters are determined by the Minister of Finance.

The essential services committee will be financed and provided with working capital from-

the monies that Parliament may appropriate to the Commission in terms of section 122; and

grants, donations and bequests made to it.

70F. Regulations for essential services committee

The Minister, after consulting the essential services committee, may make regulations concerning the-

functioning of the essential services committee; and

panels appointed by the essential services committee.

71. Designating a service as an essential service

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.

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-

to submit written representations; and

to indicate whether or not they require an opportunity to make oral representations.

Any interested party may inspect any written representations made pursuant to the notice, at the Commission's offices.

The Commission must provide a certified copy of, or extract from, any written representations to any person who has paid the prescribed fee.

The essential services committee must advise parties who wish to make oral representations of the place and time at which they may be made.

Oral representations must be made in public.

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.

If the panel appointed by the essential services committee designates the whole or a part of a service as an essential service, the essential services committee must publish a notice to that effect in the Government Gazette.

A panel appointed by the essential services committee may vary or cancel the designation of the whole or a part of a service as an essential service or any determination of a minimum service or ratification of a minimum services agreement, by following the provisions set out in subsections (1) to (8), read with the changes required by the context.

The Parliamentary service and the South African Police Service shall be deemed to have been designated an essential service in terms of this section.

(Date of commencement of s. 71: 1 January, 1996.)

72. Minimum services

When making a determination in terms of section 71, a panel of the essential services committee may issue an order-

directing the parties to negotiate a minimum services agreement as contemplated in this section within a period specified in the order;

if an agreement is not negotiated within the specified period, permitting either party to refer the matter to conciliation at the Commission or a bargaining council having jurisdiction.

If the parties fail to conclude a collective agreement providing for the maintenance of minimum services or if a collective agreement is not ratified, a panel appointed by the essential services committee may determine the minimum services that are required to be maintained in an essential service.

If a panel appointed by the essential services committee ratifies a collective agreement that provides for the maintenance of minimum services in a service designated as an essential service or if it determines such a minimum service which is binding on the employer and the employees involved in that service-

the agreed or determined minimum services are to be regarded as an essential service in respect of the employer and its employees; and

the provisions of section 74 do not apply.

A minimum service determination-

is valid until varied or revoked by the essential services committee; and

may not be varied or revoked for a period of 12 months after it has been made.

Despite subsections (3) and (4), section 74 applies to a designated essential service in respect of which the essential services committee has ratified a minimum services agreement or has made a determination of minimum services if the majority of employees employed in the essential services voted in a ballot in favour of this.

Subsection (5) does not apply to a dispute in respect of which a notice of a strike or lock-out has been issued prior to the holding of the ballot.

Despite subsection (4), a panel may vary a determination by ratifying a collective agreement concluded between or on behalf of one or more-

trade unions representing a majority of the employees covered by the determination; and

employers employing the majority of the employees covered by the determination.

Any party to negotiations concerning a minimum services agreement may, subject to any applicable collective agreement, refer a dispute arising from those negotiations to the Commission or a bargaining council having jurisdiction for conciliation and, if an agreement is not concluded, to the essential services committee for determination.

For the purposes of this section, a 'ratified minimum service' or 'determined minimum service' means the minimum number of employees in a designated essential service who may not strike in order to ensure that the life, personal safety or health of the whole or part of the population is not endangered.

73. Disputes about minimum services and about whether a service is an essential service.

Any party to a dispute about one or more of the following issues may refer the dispute in writing to the essential services committee-

whether or not a service is an essential service;

whether or not an employee or employer is engaged in a service designated as an essential service.

whether or not the employer and a registered trade union or trade unions representing employees in the essential service should conclude a collective agreement that provides for the maintenance of minimum services in that service; and

the terms of such a collective agreement.

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.

The essential services committee must determine the dispute as soon as possible.

74. Disputes in essential services

Subject to section 73(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-

*See flow diagram No. 8 in Schedule 4.

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

the Commission, if no council has jurisdiction.

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.

The council or the Commission must attempt to resolve the dispute through conciliation.

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.

Any arbitration award in terms of subsection (4) made in respect of the State and that has financial implications for the State becomes binding-

14 days after the date of the award, unless a minister has tabled the award in Parliament within that period; or

14 days after the date of tabling the award, unless Parliament has passed a resolution that the award is not binding.

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.

If Parliament is not in session on the expiry of-

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;

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.

[Para. (b) substituted by s. 21 (b) of Act No. 42 of 1996.]

75. Maintenance services

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.

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.

[Sub-s. (2) substituted by s. 22 (a) of Act No. 42 of 1996.]

The employer must satisfy the essential services committee that a copy of the application has been served on all interested parties.

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.

[Sub-s. (4) substituted by s. 22 (b) of Act No. 42 of 1996.]

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.

[Sub-s. (5) added by s. 22 (c) of Act No. 42 of 1996.]

The committee may not make a direction in terms of subsection (5) if-

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

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.

[Sub-s. (6) added by s. 22 (c) of Act No. 42 of 1996.]

If a direction in terms of subsection (5) requires a dispute to be resolved by arbitration-

the provisions of section 74 will apply to the arbitration; and

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.

[Sub-s. (7) added by s. 22 (c) of Act No. 42 of 1996.]

A panel appointed by the essential services committee may in the prescribed manner vary or cancel the designation of the whole or part of a maintenance service on its own accord or on application by the employer or a registered trade union with members affected by the designation of a maintenance service.

76. Replacement labour

An employer may not take into employment any person-

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

for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.

For the purpose of this section, "take into employment" includes engaging the services of a labour broker or an independent contractor.

77. Protest action to promote or defend socio-economic interests of workers

Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if-

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

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

the reasons for the protest action; and

the nature of the protest action;

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

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.

The Labour Court has exclusive jurisdiction-

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);

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

the nature and duration of the protest action;

the steps taken by the registered trade union or federation of trade unions to minimise the harm caused by the protest action; and

the conduct of the participants in the protest action.

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.

Despite the provisions of subsection (3), an employee forfeits the protection against dismissal conferred by that subsection, if the employee-

takes part in protest action or any conduct in contemplation or in furtherance of protest actionin breach of an order of the Labour Court; or

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

CHAPTER FOUR STRIKES AND LOCK-OUTS (ss 64-77)

64. Right to strike and recourse to lock-out

65. Limitations on right to strike or recourse to lock-out

66. Secondary strikes

67. Strike or lock-out in compliance with this Act

68. Strike or lock-out not in compliance with this Act

69. Picketing*

70. Essential services committee

70A. Composition of essential services committee

70B. Powers and functions of essential services committee

70C. Appointment of panels

70D. Powers and functions of panel

70E. Jurisdiction and administration of essential services committee

70F. Regulations for essential services committee

71. Designating a service as an essential service

72. Minimum services

73. Disputes about minimum services and about whether a service is an essential service.

74. Disputes in essential services

75. Maintenance services

76. Replacement labour

77. Protest action to promote or defend socio-economic interests of workers

CHAPTER FOUR STRIKES AND LOCK-OUTS
(ss 64-77)