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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. Sandile July explains how a suspended strike impacts employers and employees.
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On 18 April 2023, the Constitutional Court delivered a judgment on the interpretation of section 76(1)(b) of the Labour Relations Act 66 of 1995 ("LRA") in NUMSA v Trenstar (Pty) Ltd [2023] ZACC 11.
Numsa's members had embarked on a strike in the form of a total withdrawal of labour that continued for several weeks.
But on Friday, 20 November 2020, Numsa notified Trenstar that it decided to suspend its strike and their members will return to work on Monday, 23 November 2020. However, the union also indicated that it does not withdraw its demand (which was the cause of the strike).
Shortly after receipt of this notification Trenstar gave 48 hours' notice of its intention to lock out all Numsa members.
On Monday 23 October 2020, Trenstar proceeded to lock out Numsa's members and made use of replacement labour.
When is a lockout allowed?
The issue to be decided was whether an employer may institute a lockout when, at the time it was instituted, employees had already suspended their strike. The Labour Court and the Labour Appeal Court both held that an employer may do so and the lockout would be regarded as a defensive lockout entitling the employer to make use of temporary labour.
The Constitutional Court differed in its approach and upheld Numsa's appeal by finding that Trenstar could not lawfully make use of temporary labour as at the time that the lockout actually began, Numsa's members were not on strike. The Court reasoned that suspending a strike merely means that the employees do not waive their unconditional right to strike which previously accrued to them.
However, it does not mean that they continue to strike.
The right to make use of temporary labour as provided for in the LRA applies only when the use of temporary labour is in response to a strike (defensive lockout). If employees have suspended their strike, no strike action takes place, and no temporary labour may be used.
The Numsa decision was simply an issue of the timeline. The decision does not detract from the employer's ability to make use of temporary labour.
The judgment should therefore not cause any concern to employers who seek to exercise their collective bargaining power by locking-out. It merely confirms that the decision to lock out and use temporary labour should flow as a consequence of an ongoing strike (defensive lockout).
Sandile July, Labour Law Director at Werksmans Attorneys. News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
