Unlawful collective job action comes with consequences. The consequences range from dismissal, payment of damages, criminal prosecution which may lead to the payment of a fine and or imprisonment. The law in its current form provides that those found to have contravened lawful collective job action requirements “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”.[1]
The proposed law now proposes different criminal sanctions for those who are criminally liable for unlawful job action. The distinction is whether the unlawful collective job action relates to the essential service industry or non-essential service industry. If the collective job action relates to an essential service “a fine not exceeding Level 14 or imprisonment for a period not exceeding five years or both such fine and imprisonment”.[2] In a non-essential service industry the fine does not exceed level fourteen or in the case of failure to pay the fine, “imprisonment for a period not exceeding one year”.
Clearly, the legislature intends to prevent and discourage strikes in essential service industries. Considering the damage that has been caused by strikes in the health sector, one would postulate that the legislature saw the need to curtail unlawful job action within the essential services sector.
We note that traditionally very few industries were declared essential services but since the onset of COVID-19 almost all industries have been declared essential services. Seemingly, engaging in unlawful collective job action in this COVID era would attract the maximum penalty proposed in the provisions above.
Lastly, we note that the sanctions discussed above, also apply to anyone who “recommends, advises, encourages, threatens, incites, commands, aids or procures any collective action which is prohibited in terms of section 104(3), with the intention or realising that there is risk or possibility of bringing about such collective action”.[3]
[1] Section 109(1) of the Labour Act Chap 28.01.
[2] Proposed 109(1) of the Labour Act Chap 28.01.
[3] Proposed 109(2) of the Labour Act Chap 28.01.