What the law says about lockouts and striking workers in South Africa
A recent Constitutional Court judgment has brought clarity to the meaning of “in response to a strike” when employers use replacement labour during a lock-out.
Legal experts Amy King and Kenneth Coster from Webber Wentzel said that in the case of National Union of Metalworkers of South Africa (NUMSA) v Trenstar, the importance of understanding the differences between a strike and the unconditional right to strike is important as the latter upholds the constitutional rights of employees.
The employer’s right to lock out does not enjoy the same protection, said the experts.
“Employers who deliberate about or who have in fact, locked out employees in response to a strike and utilise replacement labour should remain extremely vigilant about the on-the-ground realities and status of a strike, before being seduced by the semantics of whether a strike is said to be “suspended” or “terminated”.”
On 18 April, the Constitutional Court handed down a judgment in the case where Numsa demanded a gratuity payment for its members, and when Trenstar didn’t agree to it – they went on strike.
That same day, Numsa gave notice that the strike would be “suspended’. Trenster subsequently locked out striking employees and used replacement labour instead.
Numsa approached the Labour Court arguing that the company was not allowed to use replacement about during a lock-out unless it was in response to a strike.
The Labour Court found that Trenstar had a lawful right to use replacement labour in the circumstances, said Webber Wentzel.
“In the intervening period, NUMSA abandoned its demand for the gratuity and the lock-out ended. However, it still appealed to the Labour Appeal Court (LAC), which dismissed the appeal, stating that the matter was moot,” added the legal experts.
The case went on to the Constitutional Court, where Numsa argued that the interpretation of section 76(1)(b) is a point of law of general public importance, which impacts the efficacy of strikes and should be clarified.
The Constitutional Court noted the definition of “strike” in the Labour Relations Act, which states that for there to be a strike, there must be a concerted withholding of labour for a specified purpose.
Having regard to the definition, the court found that “if employees are not refusing to work and are not retarding or obstructing work, they are not on strike”.
If the employees were previously refusing to work for a prescribed purpose, but were no longer refusing to work, there was no longer a strike in respect of which it is possible to respond to by way of a lock-out.
‘Suspending’ a strike was deemed to mean that employees are indicating that they reserve the right to strike again in respect of the demand, unlike ‘terminate’.
Webber Wentzel said that it is also important to distinguish between a strike and an unconditional right to strike.
“If the dispute was the subject of unsuccessful conciliation, and if 48 hours’ notice of the strike was given, there is an unconditional right to commence a strike.”
“If striking employees later return to work by “suspending” their strike, they would not waive the unconditional right to strike which accrued to them. During the period of suspension, there is no strike as envisaged by the LRA, only an unconditional right to strike,” said the law firm.
The considered two interpretations of what it means for an employer to lock out employees in response to a strike:
- Firstly, a lock-out could be understood in relation to what caused it to be implemented.
- Secondly, focus on the present tense “is” in the expression “unless the lock-out is in response to a strike”.
The court said that the use of the present tense lends support to the idea that the strike must still actually be underway at the time of the lock-out for the lock-out to be in response to a strike.
Webber Wentzel said that the court said that to allow an employer to persist with a lock-out when it may use replacement labour long after striking employees had tendered their services may be punitive.
This, in turn, would significantly deter employees from exercising their constitutional right to strike, undermining the balance of power that the LRA seeks to establish in line with international standards.
As a result, the right to use replacement labour lasts only as long as the lock-out lasts, and it might be necessary for the lock-out to have started while the strike was still underway to trigger the exception in section 76(1)(b) of the LRA.
With commentary from Webber Wenztel.
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