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

On 6 October 2015, the Labour Court handed down judgment in SACCAWU v Sun International, which clarified the use of replacement labour during a lockout. The Labour Court found that an employer’s right to use replacement labour during a lockout in response to a strike is limited to the period of the strike.

SACCAWU embarked on a protected strike for a fixed period of three days. In response, the employer embarked on a protected lockout and excluded all SACCAWU workers from the workplace to compel them to accept its final offer. The lockout was to commence on the same day as the strike, but would continue indefinitely until the employer’s final offer had been accepted. Employees were not entitled to remuneration or benefits during the lockout.

The employer also made use of replacement labour for the duration of the indefinite lockout, even after the period fixed for the strike had come to an end.

Section 76 of the Labour Relations Act provides that an employer may not make use of replacement labour during a lockout unless the lockout is in response to a strike.

The court considered the National Union of Technikon Employees case, where the Labour Court found that the right to use replacement labour was not available to employers in an offensive lockout (a lockout which is not in response to a strike), because the results would be untenable, and the locked out employees would be disproportionately disadvantaged. Collective bargaining would degenerate to collective begging if employers were permitted to do this.

The court also referred to the reasoning of the Constitutional Court in the Certification judgment, to the effect that the right to strike is a more important right than the right to lockout, because strike action is the primary way for workers to exercise collective power. Employers, on the other hand, have a range of weapons through which to exercise power, including dismissal, the use of replacement labour, the unilateral implementation of new terms and conditions of employment, and the right to lock employees out.

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