Section 76(1)(b) of the Labour Relations Act 66 of 1995, as amended (“LRA”), provides:
“An employer may not take into employment any person –
b. for the purpose of performing the work of any employee who is locked out, unless the lockout is in response to a strike.”
Considering the above section, it is important to note that no replacement labour can be used where an employer initiated an offensive lockout, but the exception in Section 76(1)(b) of the LRA provides that it may do so when initiating a defensive lockout in response to a strike.
An offensive lockout is not in response to a strike but is utilised by the employer as a tool intended to force non-striking employees to accept their proposal and precludes employers from utilising replacement labour during the lockout.
A defensive lockout is the employer’s right to exclude striking employees from the workplace. Defensive lockouts are useful where a deadlock in negotiations is reached, and the employees go on strike. The institution of a lockout takes the advantage away from the employees to decide when to return to work, as the employees will only be allowed to return to work when the strike is over, and an agreement has been reached.
In the case of NUMSA obo Members v Trenstar (Pty) Ltd (D 595-20)  ZALCD, the Labour Court (“LC”) had to deal with the issue of when replacement labour will be permitted. The facts of the matter are briefly discussed below.
NUMSA’s members had embarked on a strike against Trenstar. After the strike had run for approximately a month, NUMSA served a notice of suspension on Trenstar. The notice recorded the members’ intention to suspend the strike. In addition, the notice stipulated that the members were not withdrawing their demand. On the same day as the notice of suspension, Trenstar served a lockout notice. The lockout notice indicated that the members were locked out and demanded that the members withdraw their demand. The lockout notice stipulated that it was in response to the strike action and, therefore, Trenstar would use replacement labour for the duration of the lockout.
NUMSA approached the LC seeking an interdict preventing Trenstar from utilising replacement labour for the duration of the lockout. NUMSA argued that the lockout was not in response to the strike action (defensive lockout) and therefore, could not be utilised.
In determining whether replacement labour may be used, the LC considered the definition of a strike in the LRA and section 76(1)(b). The LC found that in terms of the definition, the strike had terminated because the members were tendering their services to Trenstar and, therefore, there was no refusal to work. However, in considering section 76(1)(b), the LC found that the section provided that the legal precondition for the use of replacement labour was not the strike itself, it was the lockout, more specifically, a lockout in response to a strike (defensive lockout).
The LC held that in determining whether replacement labour may be used, a court must ask whether there is a lockout in response to a strike and if so, replacement labour may be used. Replacement labour may no longer be used when the lockout ends.
The LC also held that the suspension of the strike which had caused the lockout would not prevent the use of replacement labour as the existence of a continual refusal to work does not need to be present to trigger the lawful use of replacement labour.
An employer may thus use temporary replacement labour whilst implementing a defensive lockout in response to a protected strike but only for as long as the strike subsists.
Article by: Arlene Jacobs
Dispute Resolution Official – Bloemfontein