On 8 April 2023, the Constitutional Court handed down a unanimous judgment in National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd (CCT 105/22) [2023] ZACC 11 (Trenstar) relating to the use of replacement labour during a lock-out. The Con Court focused on the interpretation of the phrase “in response to a strike” in the context of the employer’s limited right of utilising replacement labour during a lock-out, as contemplated by section 76(1)(b) of the Labour Relations Act 66 of 1995 (LRA).
In the matter leading up to the Con Court judgment, there was a wage dispute between Trenstar and the National Union of Metalworkers of South Africa (NUMSA) relating to NUMSA’s demand for the payment of a once-off gratuity to employees. After conciliation failed, NUMSA gave Trenstar notice that its members would embark on a strike on 26 October 2020 and indicated that the strike would take the form of a total withdrawal of labour. The strike commenced on 26 October 2020 and continued for several weeks.
On 20 November 2020, NUMSA notified Trenstar that it was suspending the strike at close of business that day. However, NUMSA did not call off the strike, and the dispute between the parties remained in place.
On the same day, and shortly after receipt of this notification, Trenstar gave 48-hours’ notice to NUMSA of its intention to lock-out its members with effect from 23 November 2020, with the view to bringing in replacement labour. Trenstar’s view was that any lock-out in response to the strike would entitle it to bring in replacement labour, as per section 76(1)(b) of the LRA.
Following unsuccessful claims in both the Labour Court and Labour Appeal Court, the union applied to the Constitutional Court to gain clarity as to the correct interpretation of section 76(1)(b) of the Labour Relations Act, 1995 (LRA) which provides that “an employer may not take into employment any person to perform the work of any employee who is locked out, unless the lockout is in response to a strike.”
The Constitutional Court decision was based on the principle that once employees tender their services, as is the case in a suspension of a strike, such conduct does not fall under the definition of a strike because there is no longer a withdrawal of labour. To put it in the court’s words: “a demand unaccompanied by a concerted withdrawal of labour is not a ‘strike’”. The court found further that a “strike” ends when there is no longer a concerted withdrawal of labour. Flowing from this, the court therefore found that during the period of suspension, there was no strike as defined, only an unconditional right to strike. Thus, any lock-out implemented during this time would not be “in response to a strike.” Hence, the Constitutional Court found that employers cannot bring in replacement labour in the context of a lock-out during a suspended strike.
It will be interesting to see this judgment’s impact on the power dynamics between employers and employees and the mechanisms available during collective bargaining. It is important to note that the prohibition of replacement labour, and the impact of this judgment, does not stop an employer from locking out its employees until their demands are waived – it simply prohibits the employer from utilising replacement labour in certain circumstances.
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