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Trade Disputes - Protection Of Essential Services, Life And Property Ss 4347

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            (1) An employee who wilfully breaches his contract of employment knowing or having reasonable cause to believe that the probable consequence of his doing so, either alone or in combination with others, will be-

     (a)     to deprive the public or any section of the public, either wholly or to a substantial extent, of an essential service or substantially to diminish the enjoyment of an essential service by the public or by any section of the public; or

     (b)     to endanger human life or public health or to cause serious bodily injury to any person or to expose valuable property, whether movable or immovable, to the risk of destruction, deterioration, loss or serious damage,

commits an offence and is liable to a fine not exceeding P2 000 or to imprisonment for a term not exceeding 12 months, or to both.

            (2) Any person who causes, procures, counsels, or influences any employee to breach his contract of employment or any employer who has recourse to a lock-out, knowing or having reasonable cause to believe that the probable consequence of that employee's breach of his contract of employment, either alone or in combination with others, or of the lock-out, as the case may be, will be any of the consequences specified by subsection (1) commits an offence and is liable to a fine not exceeding P2,000 or to imprisonment for a term not exceeding 12 months, or to both.

44.     Notices of section 43 and of Schedule to be displayed

            (1) Every employer in an essential service shall cause to be displayed in accordance with this section, in all premises used for the purposes of the essential service, a printed notice containing a copy of section 43 and of the Schedule together with a Setswana translation of the same.

            (2) Every notice referred to in subsection (1) shall be displayed in a conspicuous place where it may conveniently be read by persons employed in the premises in question and, in the event of the notice being lost, destroyed, removed, defaced or obliterated, the employer shall forthwith cause it to be replaced.

            (3) Every employer in an essential service shall take every reasonable step to ensure that any employees in the essential service who are illiterate are regularly informed of and understand section 43 and the Schedule.

            (4) Any person who, without reasonable excuse, destroys, removes, defaces, obliterates or otherwise damages any printed notice displayed in accordance with this section commits an offence and is liable to a fine not exceeding P500 or to imprisonment for a term not exceeding three months, or to both; and in any proceedings for an offence under this subsection the court shall presume the absence of a reasonable excuse on the part of the person charged unless the contrary is proved.

            (5) Any employer who contravenes this section commits an offence and is liable to a fine not exceeding P500 or to imprisonment for a term not exceeding three months, or to both.

45.     Industrial action in essential services

            (1) Where any industrial action in furtherance of a trade dispute is contemplated by an employer or employers or by employees in an essential service, the trade dispute shall be reported to the Commissioner by an organization acting on behalf of the employer or employers or employees, as the case may be, and-

     (a)     section 7(3) shall apply in respect of the report of the trade dispute as if the report were made under section 7; and

     (b)     where a trade dispute is reported in accordance with this subsection it shall be deemed, for the purposes of this Act, to have been reported to the Commissioner under section 7.

            (2) Where there is a failure to reach a settlement of a trade dispute reported to the Commissioner in accordance with subsection (1) within 21 days of the day on which the dispute was so reported, the employer or employers or employees by or on whose behalf the dispute was so reported may, subject to subsection (4), forthwith proceed to take industrial action in furtherance of the dispute and, notwithstanding any other provision of this Act, such industrial action shall be deemed, for the purposes of this Act, not to be unlawful industrial action.

46.     Additional ballots in respect of secret ballots of employees

            (1) Where a trade union is by virtue of the Trade Unions and Employers' Organizations Act, the exclusive negotiating body on behalf of employees in an essential service by whom industrial action is contemplated, the Minister may direct that only members of that trade union shall be entitled to vote in a secret ballot of those employees and, where the Minister does so direct, only members of that trade union shall vote in the ballot.

            (2) Every secret ballot shall be supervised by the Commissioner or by an officer or officers authorized by him in writing to do so.

            (3) Where any secret ballot is to be held in more than one place, it shall be held in all such places on the same day or days and between the same hours:

            Provided that, where the person supervising the ballot in accordance with subsection (2) at any place is satisfied that every person entitled to vote who is likely to cast his vote at that place has done so, he may forthwith close the ballot being held at that place.

47.     Contravention of section 43 not unlawful in certain circumstances

            (1) An employee shall not be guilty of an offence under section 43 if he breaks his contract of employment in pursuance of industrial action taken under section 45.

            (2) A person shall not be guilty of an offence under section 43(2) of causing, procuring, counselling or influencing any employee to break his contract of employment if the person does so in pursuance of industrial action taken under section 45.

            (3) An employer shall not be guilty of an offence under section 43(2) of having recourse to a lock-out if he does so in pursuance of industrial action taken under section 45.