(1) Every party to a dispute of interest has the right to strike or lockout if-

     (a)     the dispute has been referred to the Commissioner in accordance with section 7, and, subject to subsections (2) and (3), the dispute still remains unresolved after 30 days;

     (b)     after the 30 days has expired, 48 hours notice of the commencement of the strike or lockout has been given in the prescribed form to the Commissioner and the other parties to the dispute; and

     (c)     the strike or lockout conforms to-

           (i)       the provisions of this Part, and

          (ii)       any agreed rules regulating the conduct of a strike or lockout, or

          (iii)       any rules determined by the mediator in terms of section 40(1).

            (2) If the party referring the dispute fails to attend a mediation meeting contemplated under section 7(5), the period of 30 days referred to under subsection (1)(b) shall be extended for a further 30 days commencing from the date of the hearing.

            (3) If parties to the dispute, other than the referring party, fail to attend a mediation meeting contemplated under section 7(5), the mediator shall not be obliged to grant an extension contemplated under subsection (2).

40.     Regulation of strikes and lockouts

            (1) A mediator assigned in terms of section 7(5)(a) to mediate a dispute of interest shall, if the dispute cannot be resolved before the expiry of the 30 day period, try to reach agreement on-

     (a)     rules to regulate the conduct of the strike or lockout, failing which the mediator shall determine rules in accordance with any guidelines published in terms of section 51;

     (b)     the provision of a minimum service.

            (2) The rules contemplated in subsection (1) shall include rules concerning the conduct of the strike or lockout and any conduct in contemplation or furtherance of the strike or lockout including, subject to the provisions of subsection (4), picketing and the use of replacement labour.

            (3) An employer shall not take persons into employment to do the work of employees who are on strike or who are locked out-

     (a)     if the parties have concluded an agreement on the provision of a minimum service during the strike or lockout; or

     (b)     if no such agreement is concluded, within 14 days of the commencement of the strike or lockout.

            (4) A trade union shall not picket the premises of the employer during a strike or lockout-

     (a)     if the parties have concluded an agreement on the provision of a minimum service during the strike or lockout; or

     (b)     if no such agreement is concluded, within 14 days of the commencement of the strike or lockout.

41.     Strikes and lockouts in compliance with this Part

            (1) A person does not commit a delict or a breach of contract by taking part in a strike or a lockout in compliance with the provisions of this Part.

            (2) A person who takes part in a strike or lockout may not be dismissed for doing so, but this shall not preclude the employer from dismissing an employee during a strike or lockout for any other reason that is valid and fair.

            (3) Notwithstanding subsection (1), an employer is not obliged to remunerate an employee for services that the employee does not render during the strike or lockout in compliance with the provisions of this Part.

            (4) Civil proceedings may not be instituted against any person for participating in a strike or lockout carried out in compliance with this Part except any act in contemplation or furtherance of a strike that constitutes defamation or an offence.

42.     Prohibition of certain strikes and lockouts

            (1) No person may take part in a strike or lockout if-

     (a)     the strike or lockout-

           (i)       is not in compliance with the provisions of this Part or an agreed procedure, or

          (ii)       is in breach of a peace clause in a collective agreement; or

     (b)     the subject matter of the strike or lockout is-

           (i)       not a trade dispute,

          (ii)       regulated by a collective agreement,

          (iii)       a matter that is required by this Act to be referred to arbitration or to the Industrial Court for adjudication; or

         (iv)       a matter that the parties to the dispute have agreed to refer to arbitration.

            (2) The Industrial Court may interdict-

     (a)     a strike or lockout not in compliance with the provisions of this Act; or

     (b)     conduct-

           (i)       in contemplation or in furtherance of a strike or lockout; and

          (ii)       that is not in compliance with this Act.

            (3) No interdict contemplated under subsection (2) may be granted unless-

     (a)     the applicant has given the prescribed notice to the respondent of its intention to apply for an interdict;

     (b)     the applicant has served a copy of the notice and the application on the Commissioner; and

     (c)     the respondent has been given a reasonable opportunity to be heard before a decision is made.