Definition of ‘lockout’
Section 213 of the Labour Relations Act defines a ‘lockout’ as ‘the exclusion by an employer of employees from the employer’s workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees’ contracts of employment in the course of or for the purpose of that exclusion.
What is a ‘lockout’?
A lockout is the refusal of the employer to grant the employees access to the workplace. This means that the employees are not able to render their services and, as a result, will not be paid. The right to lockout may be utilised by the employer in an offensive or a defensive manner. It takes place either in response to a strike (defensive lockout) or to force the employees to accept a demand of the employer (offensive lockout). The demand must relate to disputes of mutual interest. The demand of the employer can be, for example, to force the employees to accept changes to their terms and conditions of employment.
How does an employer implement a protected ‘lockout’?
Lockouts are protected if they comply with the provisions of Chapter Four of the LRA. This Chapter imposes procedural requirements as well as substantive limitations. The procedural requirements specify the procedures that must be followed prior to a protected lockout, while the substantive limitations prohibit lockouts in certain circumstances.
In order to enjoy protection, lockouts must comply with the procedure prescribed in section 64 of the LRA. A 3-step process is prescribed:
- The issue in dispute must be referred either to a bargaining council or to the CCMA for conciliation.
- A certificate stating that the dispute remains unresolved must be issued, or a period of 30 days must elapse from the date of the referral of the dispute.
- The other party or parties to the dispute must be given at least 48 hours written notice of the commencement of the lockout.
There are, however, circumstances under which parties may dispense with the statutory procedures set out above.
An employer does not need to comply with the conciliation or notice requirements where:
- The parties to the dispute are members of a bargaining council, and the dispute has been dealt with by that council in accordance with its constitution.
- The lockout conforms with the procedure in a collective agreement.
- The employees strike in response to a lockout by their employer that does not comply with the provisions of the LRA.
- The employer locks out its employees in response to their taking part in a strike that does not conform with the provisions of the LRA.
- The employer fails to comply with a ‘status quo notice’ issued by an employee or trade union.
What are the substantive limitations placed on lockouts?
A person may not participate in a lockout, or in any conduct in contemplation or furtherance of a lockout if:
- That person is bound by a collective agreement that prohibits a lockout;
- That person is bound by an agreement that requires the issue in dispute to be referred to arbitration;
- The issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of the LRA or any other employment law;
- The person is engaged in an essential service or a maintenance service.
If there is no collective agreement to the contrary, a person may not engage in industrial action if bound by:
- Any arbitration award or collective agreement that regulates the issue in dispute;
- Any determination made in terms of section 44 by the Minister that regulates the issue in dispute;
- Any determination made in terms of Chapter 8 of the Basic Conditions of Employment Act that regulates the issue in dispute.
Any person who participates in a lockout under the abovementioned circumstances will be deprived of the protection afforded by the LRA and exposed to a range of civil sanctions.
May an employer replace an employee during a lockout?
An employer may only replace an employee during a lockout if the lockout is in response to a strike. A lockout is regarded as being in response to a strike if a lockout notice is issued after notice of the strike has been given. Whether the employer may employ replacement labour is therefore determined with reference to the point at which the lockout is imposed. This means that if the employer commences a lockout in response to a strike and the strike is subsequently terminated, the employer may continue to employ replacement labour until the lockout ceases.
How long can a lockout be upheld by an employer?
The employer can uphold the lockout until such time that the employees have unconditionally agreed to the employer’s demands. This was confirmed in the National Union of Metalworkers of South Africa and Others v Bumatech Calcium Aluminates (J 303/16)  ZALCJHB 364 (9 November 2018).
Facts of the case:
The employer issued a notice to NUMSA inviting it to consult in terms of s189 of the LRA. The consultation was, however, suspended at NUMSA’s request. During the time of suspension, the employer informed its employees that it was introducing a change to the employees’ shifts as a cost-saving initiative. NUMSA then referred a dispute to the CCMA alleging that the employer had unilaterally changed the terms and conditions of its members’ employment, in response to the shift changes. The dispute could not be resolved through conciliation, and the employer then served NUMSA with a lockout notice. NUMSA subsequently served the employer with a strike notice, and its members thereafter embarked on a protected strike.
NUMSA then brought an application to the labour court to have the lockout, which was imposed by the employer, declared unlawful and illegal. In its application, NUMSA submitted that the employer’s lockout was unlawful because it had addressed a letter to the employer requesting a meeting to resolve the dispute between the parties. The letter further conveyed NUMSA’s intention to suspend the strike and for its members to return to work. However, when its members attended the employer’s premises to tender their services, the employer denied them access by enforcing the lockout. The employer responded by demanding that NUMSA and its members give an undertaking that they would refrain from acts of violence and intimidatory conduct. NUMSA contended that the employer’s condition rendered the lockout unlawful as it illustrated that the lockout was based on disciplinary issues, and that it ought not to have continued since the strike, to which it was in response to, had been called off.
The employer argued that the lockout was lawful because NUMSA had not abandoned the strike and had not accepted the demand for shift changes unconditionally, therefore there was still a live dispute between the parties. NUMSA retaliated by challenging the employer’s lockout notice on the basis that it did not disclose what NUMSA and its members had to do in order to resolve the dispute.
The Labour Court held that NUMSA knew that the employer wanted to implement changes to its shifts, and that NUMSA’s claim that it did not know what it had to do to resolve the dispute in for the lockout to be uplifted was without merit. The court further held that NUMSA’s correspondence to the employer did not show an intention by NUMSA to accept the employer’s demands unconditionally. The court dismissed NUMSA’s application and held that it failed to prove that the employer’s lockout was unlawful.
It is therefore important for employers to note that the lockout notice must not only inform employees of the employer’s demand but must also clearly set out what the employees are required to do to end the dispute and have the lockout uplifted by the employer, to avert any challenges to the notice by employees.
The abovementioned case, therefore, confirms that a lockout, if implemented in compliance with the procedural and substantive requirements under the LRA, may continue until such time that the employer and employees reach an agreement on the issues in dispute or until such time that the employer decides to uplift the lockout.
Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Port Elizabeth