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- An employer who implements a lockout may not hire replacement labour to do striking workers' jobs if the employees are willing to return to work, the Constitutional Court has ruled.
- The apex court overturned earlier rulings by the Labour Court and Labour Appeal Court.
- The case in question dates back to 2020, where packaging company TrenStar believed Numsa members it employed had only halted their strike temporarily.
- For more financial news, go to the News24 Business front page.
An employer who implements a lockout may not use replacement labour to do the work of striking employees if those workers are willing to come back to work, the Constitutional Court ruled earlier this week - overturning earlier rulings by the Johannesburg Labour Court and Labour Appeal Court.
The facts of the case, brought by the National Union of Metalworkers of SA against packaging company TrenStar, date back to November 2020. Amid a strike that had lasted several weeks, TrenStar issued a notice to say it was locking out the employees that had downed tools and would use replacement labour (also known as 'scab' labour).
Numsa suspended the strike before the lockout could take effect, but TrenStar insisted it could still use replacement labour, as it believed the suspension of the strike would only be temporary.
The Constitutional Court declared that TrenStar was not entitled to use replacement labour to do the work of any employees who were willing to return to work.
The court points out that the Labour Relations Act (LRA) allows for one exception when an employer may use replacement labour to perform the work of locked out employees - namely, in response to a strike.
It had to decide, however, on the interpretation of this exception.
No more Mr Ice Guy: Employers can't freeze out staff
TrenStar argued that, whenever an employer gave notice of a lockout in response to a strike, a union could simply issue a suspension notice, bringing the strike to an end before the lockout notice took effect.
The court, however, pointed out in its judgment that replacement labour could be misused to keep workers locked out until they yielded:
The Constitutional Court, therefore, opted to interpret the exception provision as meaning that, although TrenStar's decision to give notice of a lockout was in response to a strike that had lasted for several weeks - and which was not quite over when the lockout notice was given - the right to use replacement labour no longer existed when the lockout actually came into effect.
Labour law expert Michael Bagraim of Bagraims Attorneys says he agrees with the Constitutional Court's interpretation.
"As Madiba said when he signed the Labour Relations Act (LRA) into law: labour law is legislation both of law as well as equity and fairness. It must, therefore, be read within this context," says Bagraim.
He explains that workers have a Constitutional right to strike. Employers have a right for their business not to be destroyed due to workers being on strike. That is why employers can lock out staff in answer to a strike and bring in alternate labour.
However, employers cannot use alternate labour if the workers are not on strike anymore and are willing to return to work.
According to Bagraim:
Grasshoppers can't strike all summer
For Bagraim, the real problem comes with so-called grasshopper strikes - popular in the US. In such cases, union members go on strike for a day or two, then return to work for a few days, and then strike again for a day or two. The situation becomes an administrative nightmare for an employer. This was, however, not the situation in the case before the Constitutional Court.
In the TrenStar case, the company tried to argue that it was under the impression that the union planned to go on strike again. The court found that is not enough to go by.
"The significance of the case is that it gives some certainty about where we stand: either workers are on strike and in response to that, an employer gets scab labour, or workers are coming back, and the employer must tell the scab labour not to come," says Bagraim.
"At least the business community now knows where it stands. Unions have to give employers at least 48 hours notice before going on strike, but no notice period is required when workers decide to return to work. One must look at what is fair in the circumstances."
Numsa's General Secretary Irvin Jim says the union went to court to prevent employers from abusing the lockout mechanism.
"The tool of the lockout may have the effect of giving employers disproportionate and unfair power at their disposal. NUMSA will always fight for the right to strike and...this is why this court case was important: to ensure that bosses do not abuse their power through the lockout," Jim said in a statement.
