LABOUR ACT [Chapter 28:01] (as amended) (5) An employer may not employ any person for the purpose of performing the work of an employee who is locked out. 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. (3) The Minister may, by order in writing served on— (a) a trade union or employers organisation which he believes on reasonable grounds to be in contravention of subsection (1); and (b) the employment council to which the trade union or employers organisation referred to in paragraph (a) is a party; and (c) any employer who is party to a collective bargaining agreement with the trade union referred to in paragraph (a); suspend for such period, not exceeding twelve months, as shall be specified in the order, the right of the trade union to levy, collect or recover union dues by means of a check-off scheme, or the right of the employers organisation to collect membership fees. (4) An order referred to in subsection (3) may be issued together with, or independently or instead of, a show cause order. (5) If— (a) criminal proceedings against a trade union or employers organisation referred to in paragraph (a) of subsection (3)— Re-issue (i) are not instituted within thirty days of the date of service of the order referred to in subsection (3) on the trade union or employers organisation; or (ii) end otherwise than in conviction; or (b) the Labour Court declines to grant a disposal order; the order shall be deemed to have been cancelled with effect from the last day for the institution of criminal proceedings in terms of paragraph (a), or the date of acquittal or withdrawal of the criminal proceedings, or the date when the Labour Court declined to grant an order referred to in paragraph (b), whichever is the earliest date. (6) In addition to any penalty that may be imposed under subsection (1) or (2) and without derogation from any other remedy available under any other law— (a) a responsible person, and every official or office-bearer of the responsible person, and every individual employer or employee who participates in any unlawful collective action; or (b) a person referred to in subsection (2); as the case may be, shall be jointly and severally liable, at the suit of any injured party, for any injury to or death of a person, loss of or damage to property or other economic loss, including the perishing of goods caused by employees’ absence from work, caused by or arising out of or occurring during such collective action. (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. 110 Appeals (1) Any person who is aggrieved by— (a) a show cause order or the refusal to make such order; or (b) a disposal order made by an appropriate authority or by the refusal of any such authority to make such order; may appeal to the Labour Court. (2) The lodging of an appeal in terms of subsection (1) shall not affect any order appealed against: Provided that pending the determination of the appeal, the Minister or the appropriate authority may give such directions to, or impose such restrictions on, any of the parties as he considers fair and reasonable, taking into account the respective rights of the parties and the public interest. 111 Cessation of collective job action Whenever— (a) the underlying cause of any collective job action or lock-out which is threatened, anticipated or in force has been removed; or - 41 - 1st May 2003-