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Significance
of Declaration of Essential Services in terms of the Labour Relations
Act
June 13, 2003
The Labour (Declaration
of Essential Services) Notice, 2003, published in Statutory Instrument 137
of 2003, was made in terms of paragraph (b) of the definition of "essential
service" in section 102 of the Labour Act. The definition applies to Part
XIII of the Act only. The Part is headed COLLECTIVE JOB ACTION.
The term is not used
often in Part XIII (and only once elsewhere in the Act; see section 93(5)(a)
in Part XII). The relevant provisions in Part XIII are set out below.
102 Interpretation
in Part XIII
In this Part—
"essential
service" means any service—
(a) the interruption
of which endangers immediately the life, personal safety or health of
the whole or any part of the public; and
(b) that is declared
by notice in the Gazette made by the Minister, after consultation with
the appropriate advisory council, if any, appointed in terms of section
nineteen, to be an essential service.
[substituted
by Act 17 of 2002 with effect from 7th March, 2003.]
103 Appeal against
declaration of essential service
Any person who is aggrieved
by any statutory instrument by the Minister declaring any service or occupation
to be an essential service may appeal against such notice to the Labour
Court, and the Labour Court may vary or revoke the statutory instrument
as it deems just.
[amended
by Act 17 of 2002 with effect from 7th March, 2003.]
104 Right to resort
to collective job action
(1) Subject to this Act,
all employees, workers committees and trade unions shall have the right
to resort to collective job action to resolve disputes of interest.
(3) Subject to subsection
(4), no collective job action may be recommended or engaged in by—
(a) any employees,
workers committee, trade union, employer, employers organisation or
federation—
(i) if the persons
concerned are engaged in an essential service; or
COLLECTIVE
JOB ACTION
The term is defined
in section 2 of the Labour Act:-
"collective
job action" means an industrial action calculated to persuade
or cause a party to an employment relationship to accede to a demand related
to employment, and includes a strike, boycott, lock-out, sit-in or sit-out,
or other such concerted action;
Its principal use
is in Part XIII of the Act, headed COLLECTIVE JOB ACTION.
SANCTIONS
FOR UNLAWFUL COLLECTIVE JOB ACTION
There are civil and
criminal sanctions for involved in collective job action in breach of
section 104(3)(a) of the Act..
The civil sanctions
are of various types:
- those involving
the Labour Court - see sections 106 and 107 of the Labour Act dealing
with show cause orders and disposal orders.
- liability to compensate
injured parties for injury or death or property loss or damage in terms
of section 109(6) of the Act
- loss of privileges
for trade unions and employers organizations under section 109(3) of
the Act.
Criminal sanctions
are in sections 106 and 112 of the Act (there may be some duplication
and overlapping):-
109 Liability of persons
engaged in unlawful collective action
(1) If a workers committee,
trade union, employers organisation or federation of registered trade unions
or employers organisations (hereinafter in this section called a "responsible
person"), or any individual employer or employee or group of individual
employers or employees, recommends, advises, encourages, threatens, incites,
commands, aids, procures, organises or engages, in any collective action
which is prohibited in terms of subsection (3) of section one hundred
and four, the responsible person, and every official or office-bearer
of the responsible person, or, as the case may be, individual employer or
employee or group of individual employers or employees, shall be guilty
of an offence and liable to a fine not exceeding level fourteen or to imprisonment
for a period not exceeding five years or to both such fine and such imprisonment.
(2) Any person other
than a person referred to in subsection (1) who recommends, advises, encourages,
threatens, incites, commands, aids or procures any collective action which
is prohibited in terms of subsection (3) of section one hundred and
four, with the intention or realising that there is a risk or possibility
of bringing about such collective action, shall be guilty of an offence
and liable to a fine not exceeding level fourteen or to imprisonment for
a period not exceeding five years or to both such fine and such imprisonment.
The test referred
to in section 3 of the Public Order and Security Act [Chapter 11:17]
shall apply to determining whether or not the person whose conduct is
in issue realised that there was a risk or possibility that his conduct
might bring about the collective action referred to in this subsection.
(7) Subject to Part
XIX of the Criminal Procedure and Evidence Act [Chapter 9:07],
a court which has convicted a person of any offence in terms of subsection
(1) that involves any loss, damage, injury or death for which that person
is liable in terms of this section shall forthwith award compensation
to any person who has suffered personal injury or whose right or interest
in property of any description has been lost or diminished as a direct
result of the offence.
112 Offences under
Part XIII
(1) Any person who contravenes
or fails to comply with:
(a) subsection (2)
or (3) of section one hundred and four; or
(b) section one
hundred and five ; or
(c) a direction
made in terms of paragraph (b) or (c) of subsection (2) of section one
hundred and six; or
(d) the terms of
a disposal order; or
(e) section one
hundred and eleven;
shall be guilty
of an offence and liable to a fine not exceeding level seven or to imprisonment
for a period not exceeding one year or to both such fine and such imprisonment.
(2) When imposing
any penalty or sentence upon conviction for an offence in terms of subsection
(1), the court shall take into account—
(a) the terms of
any show cause order or disposal order which has been made relating
to the offence concerned, and the extent to which the convicted person
has complied with it; and
(b) the extent to
which the dispute concerned has been resolved.
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