Legal updates and opinions
Author
News / News
An employer’s right to use replacement labour where a lockout has been instituted
and Nyeleti Baloyi, Candidate Attorney
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 embarked on a strike in the form of a total withdrawal of labour that continued for several weeks. 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, but 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 lockout NUMSA’s members and made use of replacement labour.
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, 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 timeline. The decision does not detract from employer’s ability to make use of temporary labour. The judgment should thus 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).
For legal advice on labour disputes visit our practice area.
Latest News
Technology & AI – in the workplace and beyond
by Preeta Bhagattjee, Director and Head of Technology & Innovation & Bradley Workman-Davies, Director The rapid integration and adoption [...]
Debt Review – A lifeline for over-indebted consumers
by Naledi Motsiri- Director and Nothando Nyoni - Candidate Attorney As a result of slow economic growth, high interest [...]
Claims for Non-payment in terms of Section 73A of the Basic Conditions of Employment Act – An overview of recent cases
by Dakalo Singo, Director and Head of Pro Bono In 2019, the jurisdiction of the Commission for Conciliation, Mediation [...]
Department of Employment and Labour Update: What to expect in relation to the implementation of the Employment Equity sector targets
On 17 February 2025, the Department of Employment and Labour ("DoEL"), held a virtual meeting where various stakeholders and industry players met [...]
Relief for cystic fibrosis patients? The Competition Commission Closes Investigation into Vertex Pharmaceuticals
Reviewed by Rudolph Raath, Director "… poverty alleviation, the provision of high-quality education, the best health enhancing facilities or necessities, and [...]
Back to the Future: What data protection developments were there in 2024, and what lessons should SA businesses take into 2025 and beyond?
2024 was a big year for data protection in South Africa. The Information Regulator issued various enforcement notices and published [...]
