The Use of a Lock-out and Replacement Labour During a Suspended Strike
The Use of a Lock-out and Replacement Labour During a Suspended Strike
December 2024
An employer who embarks on a lock-out may not, as a general rule, use replacement labour to perform the work of the locked-out employees. However, there is one exception: if the lock-out “is in response to a strike”. This case is about the interpretation of that exception.
National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd (CCT 105/22) [2023] ZACC 11 (18 April 2023)
Case summary
NUMSA, on behalf of its members, requested that Trenstar pay a taxable once-off gratuity to every employee in addition to their annual wage increase. The demand was not met and the employees embarked on a protected strike for several weeks.
NUMSA informed Trenstar that the strike will be suspended from 20 November 2020 and that the employees will return to work on 23 November 2020, although the tendering of their services does not constitute a waiver of their demand.
Trenstar, in turn, notified NUMSA of a lock-out in response to the strike, entitling Trenstar to make use of replacement labour as envisaged in Section 76(1)(b) of the Labour Relations Act No. 66 of 1995 (“the LRA”).
NUMSA held that the strike had been suspended and, therefore, Section 76(1)(b) is not applicable.
NUMSA approached the Labour Court on an urgent basis to interdict Trenstar from using replacement labour during the lock-out. The Labour Court granted leave to appeal to the Labour Appeal Court, but the latter Court dismissed the appeal on the basis that the matter was moot as the strike and lock-out had ended.
NUMSA then approached the Constitutional Court (the “CC”), which sought to address two legal questions:
- The difference between a suspended and a terminated strike; and
- The correct interpretation of “in response to a strike” in terms of Section 76(1)(b) of the LRA.
The CC held that the LRA does not distinguish between a terminated and a suspended strike, and that a strike’s existence is determined by whether or not there is a concerted withdrawal of labour. Therefore, once a strike is suspended and employees are tendering their services, there is no strike. Thus, no lock-out could be implemented as it would not be in response to a strike under these circumstances. And seeing as the strike had ended by the time Trenstar implemented the lock-out, the CC found that the right to use replacement labour no longer existed.
This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.
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