What Constitutes a Defensive Lockout

The “omission” of the employer’s explicit right to lockout, in the Constitution was emphasized in Chairperson of the Constitution Assembly, ex Parte: In re Certification of the Constitution of the Republic of SA. ¹ It was argued that effective collective bargaining necessitates that parties utilize economic power to counter each other and as a result, the right to lockout should be recognised in exactly the same way that the right to strike is recognised and protected. Chaskalson J held that this objection cannot be accepted and considered that collective bargaining is founded upon the acknowledgement that employers have always possessed superior social and economic power over their workers. ²

A lockout can be characterised as either an offensive lockout or a defensive lockout. It is trite that an offensive lockout is when an employer, in the absence of the employees going on strike; prevents employees from entering its premises in an attempt to force them into accepting a demand concerning a matter of mutual interest. A defensive lockout is when an employer locks out employees, in response to the employees engaging in strike action. In keeping with Section 76(1)(b), ³ where an offensive lockout occurs, the employer is not allowed to employ replacement staff.

The definitions are clear, but in practice, the issue is much more nuanced than that. In National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd, ⁴ the question before the Constitutional Court was whether an employer, who embarks on a defensive lockout, can continue to employ replacement staff once the striking employees decide to suspend their strike and wish to return to work. In other words, does a defensive lockout change to an offensive lockout, when striking employees decide to suspend their strike action and under which circumstances, replacing labour is not permitted?

The facts

After Numsa’s demand on behalf of its employees of a once-off gratuitous payment of R7 500 was refused, it referred a mutual interest dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) which failed, resulting in a strike beginning on Friday the 26^th of October 2020. On the Friday, Numsa’s attorney wrote to Trenstar (the employer) at 13h25 and advised that the Union had decided to suspend its strike, with such suspension not indicating a withdrawal of the demand, and that its members would be returning to work the following Monday, the 23^rd of November 2020. In response to the letter, Trenstar informed the Union that it was giving it 48 hours’ notice of a lockout, in response to the Union’s strike action.

Numsa approached the Labour Court on an urgent basis seeking to interdict Trenstar from employing replacement labour for the duration of the lockout. The Labour Court dismissed the application on the basis that the lockout was called for in response to the ongoing strike therefore Section 76(1)(b) found application. The Labour Court held further that the fact that the lockout began when the strike was suspended was not a determining factor in the dispute. Numsa’s appeal to the Labour Appeal Court was dismissed on the basis that the dispute was moot. Numsa then petitioned the Constitutional Court.

The Constitutional Court

Numsa argued that an employer’s right to employ replacement labour should end when a strike ends, which would have the least impact on the constitutionally guaranteed right to strike. Trenstar’s argument focused on the distinction between a suspended strike and a strike that has terminated. It argued that its notice calling for a lockout was issued while the strike was ongoing, despite the announcement of the suspension of the strike being already made at the time. It further argued that on the Union’s interpretation, when strikes are suspended, it could, at any time, reinstate their strike action frustrating the purpose of a lockout as the Union could issue a notice suspending the strike immediately prior to the expiry of the 48-hour notice.

The Court held that if employees are not refusing to work and are not retarding work, they are not on a strike, and no strike exists. The fact that the dispute or grievance underlying the prescribed purpose remains in existence, the Court held, does not mean that the strike has not come to an end, a demand unaccompanied by a concerted withdrawal of labour is not a strike.

The Court went on to find that Trenstar conflated the unconditional right to strike with a strike. Once a dispute has been conciliated and at the expiry of the statutory notice period, a union acquires the right to strike. However, it is only when the employees stop work, that the strike begins. During the period of a suspended strike, there is no strike but rather an unconditional right to strike at any time. Therefore, under the suspension period, the strike is deemed to have ended.

The Constitutional Court set aside the order of the Labour Court and held that as from Monday the 23^rd of November 2020, the employee’s absence from work was due to a lockout, not a strike. The Court further clarified that replacement labour is permitted as a result of an ongoing strike but not as a result of a strike that ended.

Our Analysis

Whilst the reasoning of the Constitutional Court can be justified from the literal reading of Section 76(1)(b), it creates problems in our view for the following reasons:

1. When the strike is suspended, the demand still remains. This means that the actual dispute has not been resolved. The primary objective of the Labour Relations Act is the speedy resolution of all disputes. Seen in this way, a demand which can be suspended anytime by the employees can be used as a sword of Damocles to hold the employer at ransom in relation to the demand. Whilst this can be understandable from the power dynamics of bargaining and from Chalskalson’s finding in the Certification case, current economic demands and strains necessitate that the right to strike may have to be limited.
2. As argued by Trenstar, where the employer makes use of replacement labour as a defensive lockout, the employees may simply suspend the strike and change the nature of the lockout to be an offensive one, thus precluding the employer from making use of replacement labour. It can be said that as the employer’s right to lockout is not explicitly protected in the Constitution, even where employees suspend the strike, thus changing the lockout to an offensive lockout, the employer is still provided with a negotiation tool for the acceptance of its terms. However, the purpose of a defensive lockout is to ensure that operations continue. As such, this cannot be the intention of the legislature in dealing with the contested bargaining power. If indeed it was, we submit with respect that such an interpretation is outdated.

We are of the view that the Constitutional Court ought to have applied a purposive approach to interpreting the provisions of Section 76(1)(b) instead of a literal one. Such an interpretation, which would be a business-like meaning to the provision would have led to a finding that the use of replacement labour by Trenstar as of Monday the 23^rd November 2020 was not outlawed by Section 76(1)(b) given that the demand or the dispute had not ended and the right to strike was not infringed.

 ¹ 1996 4 SA 744 (CC)
² Chairperson of the Constitutional Assembly 841A
³ Section 76(1)(b) of the Labour Relations Act reads:
“An employer may not take into employment any person – (b) for the purpose of performing the work of an employee who is locked out unless the lock-out is a response to a strike.”
⁴ (2023) ZACC 11, Delivered on 18 April 2023