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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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