The recent Constitutional Court case of National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd  ZACC 11 has provided clarity on the use of replacement labour during lockouts. The conflict created by the decisions of Ntimane & others v Agrinet t/a Vetsak (Pty) Ltd (1999) 20 ILJ 896 (LC) and SACCAWU v Sun International (J1951/15)  ZALCJHB 341 on this issue has finally been resolved by the Constitutional Court.
In this case, Trenstar declared a lockout of its employees after failed wage negotiations with NUMSA. The notice of lockout was issued after the employees notified Trenstar of their intention to “suspend” the strike and return to work, but before the employees called a halt to their strike. Trenstar’s lockout only took effect after the employees suspended their strike and tendered their services to Trenstar. Trenstar proceeded with its lockout and proceeded to hire replacement workers to perform the work of the locked-out employees. NUMSA challenged this action, arguing that Trenstar’s use of replacement labour was unlawful under the Labour Relations Act. The Constitutional Court agreed with NUMSA and declared Trenstar’s use of replacement labour unlawful.
The Labour Relations Act 66 of 1995 (LRA) provides for the regulation of the relationship between employers and employees, as well as the prevention and resolution of labour disputes. One of the topics that the LRA addresses are the use of replacement labour during a lockout. A lockout is a collective bargaining tactic used by employers to put pressure on unions during wage negotiations. It involves the employer preventing employees from accessing the workplace and performing their duties until an agreement is reached.
The Labour Court had initially dismissed NUMSA’s application, finding that Trenstar’s use of replacement labour was lawful. NUMSA appealed to the Labour Appeal Court, but its appeal was also dismissed. NUMSA then appealed to the Constitutional Court, which declared Trenstar’s use of replacement labour unlawful.
The Constitutional Court's Decision:
The Constitutional Court held that Trenstar’s use of replacement labour was unlawful under the LRA because section 76(1)(b) must be interpreted to confine the use of replacement labour to the duration of the strike. The Court held that Trenstar’s use of replacement labour after the strike was suspended, and the employees had tendered their services was inconsistent with section 76(1)(b) because the lockout in effect became “offensive” once the strike was halted by the employees. The Court stated that “subject to the one exception contained in section 76(1)(a), an employer may use replacement labour during a strike. But subject to the one exception contained in section 76(1)(b), an employer may not use replacement labour during a lock-out”. Section 76(1)(b) states: “An employer may not take into employment any person – for the purpose of performing the work of any employee who is locked out, unless the lockout is in response to a strike.”
The Court’s decision clarifies that an employer is not entitled to use replacement labour to replace locked-out employees after the affected employees have halted their strike and tendered their services back to the employer. This effectively means that an employer cannot use replacement labour to permanently lock out employees until those employees capitulate to the employer’s demands, or in other words use the lockout as an “offensive” tactic. The Constitutional Court stated that such a turn of events was inconsistent with the Constitution, particularly when the employee’s constitutional right to strike must curtail the employer’s legislated right to lockout.
Implications of the Decision:
The decision has significant implications for employers and employees. Employers need to ensure that they follow the proper procedures when declaring a lockout. Further, employers must understand the limitations regarding the use of replacement labour during any lockout. Employers cannot use lockouts to weaken unions or refuse to allow locked-out employees to return to work after they have called a halt to their strike.
Employees, on the other hand, can be reassured that their rights are protected under the LRA. They can challenge their employer’s use of replacement labour if they believe it is unlawful, and they can seek relief from the Labour Court or the Constitutional Court.
The NUMSA v Trenstar case provides much-needed clarity on the use of replacement labour during lockouts.
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