Lock out notices may also be issued to unions not party to wage negotiations

This article was written by Lara Kerbelker, an Associate at Norton Rose Fulbright South Africa

On 6 May 2015, the Labour Appeal Court handed down judgment in Putco v TAWUSA, which has significant implications for collective labour law in South Africa. A collective agreement, and therefore lock-out notices, extend to bind unions who are not parties to the agreement or the wage negotiations.

The LAC had to determine whether a lock-out notice can be validly issued against a union which is not party to the wage negotiations which form the subject of the dispute.

The employer, Putco, is a member of an employer’s organisation, which, along with another employer’s organisation and two trade unions, were members of the South African Road Passenger Bargaining Council. A third union, the Transport and Allied Workers Union (TAWUSA), had resigned from the Bargaining Council by the time the dispute arose.

When wage negotiations deadlocked, the employer gave notice to all recognised trade unions, including TAWUSA, of its intention to lock out all employees in the bargaining unit in support of its wage proposals. TAWUSA took the view that the lock-out was unlawful, on the basis that it was not party to the dispute as it was not a member of the Bargaining Council.

The LAC held that collective agreements entered into under the auspices of the Bargaining Council are binding on all eligible members, and are extended to non-parties by the Minister. The intention of the parties was to enter into a collective agreement that would be binding on all employers and employees within the industry.

A bargaining council is the representative of the industry over which it has jurisdiction, and all employees falling within its scope have a material interest in the employees’ wage demand. Additionally, the LAC held that since strikes against non-party employers are permitted in the context of bargaining council disputes, there is no reason that the same should not apply to lock-outs.

Therefore, the LAC held that the employer had acted lawfully in locking out TAWUSA’s members.