This blog was co-authored by Heidi Davis, Trainee Associate

On 18 April 2023, the Constitutional Court found that replacement labour may only be used for the duration of strike action and not during a lock-out, even in instances where a lock-out notice was delivered before the strike had ended.

Following unsuccessful claims in both the Labour Court and Labour Appeal Court, the union applied to the Constitutional Court to gain clarity as to the correct interpretation of section 76(1)(b) of the Labour Relations Act, 1995 (LRA) which provides that “an employer may not take into employment any person for the purpose of performing the work of any employee who is locked out, unless the lockout is in response to a strike.” Further, the CC pronounced on the distinction between a suspended strike and a terminated strike.

This dispute between the union and employer arose in relation to the use of replacement labour by the employer during a lock-out which commenced following the suspension of strike action but notice of the lock-out was given before the strike action itself had ended.

The union contended that replacement labour was not allowed as the lock-out was not in response to a strike because by the time the lock-out began the strike had ended. The employer contended that the lock-out notice, which was handed out while the strike was still underway, was in response to a strike which had only been suspended and not terminated and could therefore be reinstated at any time.

On the suspension issue, the court held that a strike is by definition in the LRA a state of affairs which ends as soon as there is no longer a concerted withdrawal of labour. The court held that employees who return to work on account of “suspending” their strike rather than “terminating it” are indicating that they have not abandoned their unconditional right to strike again but only the strike action for the duration of the suspension. On the facts, the court found that the employees’ absence from work was due to a lock-out and not a strike as the strike had ended on a Friday and the lock-out had commenced the following Monday.

The court also expressed the view that suspended strikes do not require a new 48 hour’s strike notice before reinstituting the strike, which differs from the abandonment of a strike, that requires a new 48 hours’ notice before a strike can commence.

The court thereafter pronounced on the meaning of “in response to a strike” contained in section 76(1)(b). A lock-out, like a strike, is a state of affairs occurring with the specific purpose of excluding employees from the workplace to compel them to accept a demand. An employer who persists with an exclusion of employees from the workplace after they have ended their strike and tendered their services it no longer responding to the strike, but choosing to use the lock-out offensively.

Ultimately, the court ruled that its jurisdiction mandates it to prefer an interpretation which confines the use of replacement labour to the duration of the strike and therefore found that the preferred interpretation of section 76(1)(b) is that, even if the employer’s lock-out notice was in response to a strike which was not over when the lock-out notice was given, the right to use replacement labour no longer existed when the lock-out actually began. This judgment is important as it acts as a warning to employers to be cautious because it is now clear that replacement labour may only be used during the duration of the strike action itself. When the strike action has ceased, the lock-out may continue but replacement labour may not be utilised.

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