Use of “scab” labour during lock-outs not prohibited by the Constitutional Court.

USE OF “SCAB” LABOUR DURING LOCK-OUTS 
NOT PROHIBITED BY THE CONSTITUTIONAL COURT

By Jaco Swart

The Constitutional Court recently issued judgement in the matter of the National Union of Metal Workers (NUMSA) vs Trenstar (Pty) Ltd which dealt with the issue surrounding the right of an employer to use replacement labour (scab labour) during a lock-out.

Some media reports have hailed this judgement as the end of the right to use replacement labour where striking employees were locked out by the employer.

However, upon careful reading of the judgement, this is in fact not the case.

The right to lock-out employees has long been entrenched in the Labour Relations Act (LRA) and has been utilised by employers for many years. 

However, there is a distinction to be made between two types of lock-outs, a defensive- and an offensive lock-out, in the context of the right to employ replacement labour.

Although these terms are not found or defined in the LRA, a defensive lock-out is a lock-out in response to a strike, whereas an offensive lock-out is not in response to a strike but the employer simply wants its employees to submit to its demands.

The LRA is very clear in its pronouncement that replacement labour is only permitted in the case of a defensive lock-out, therefore, in response to a strike.

The judgement by the Constitutional Court did not alter this position. The question before the Court was not whether replacement labour was permitted during a defensive lock-out, but whether, on the particular facts, the lock-out was in response to a strike.

In the matter in question, the trade union had given notice to the employer that the strike would be suspended and that the employees would return to work, although the demands on the employer were not abandoned. The employer, upon receipt of said notice, gave notice of its intention to implement a lock-out until the employees returned unconditionally, and duly implemented said lock-out and employed replacement labour after the strike had already ended.

The Court found that the lock-out was not in response to a strike, as it was suspended, and therefore constituted an offensive lock-out which precludes the employment of replacement labour. According to the Court there is no difference between a suspended strike and a terminated strike for purposes of determining the nature of a lock-out. In both instances, the lock-out would not be in response to a strike as there is no ongoing strike, but merely a right to strike. 

Therefore, the right to lock-out and the right to employ replacement labour, where a lock-out is in response to a strike, have not been affected.

The law around strikes and lock-outs is very technical of nature and employers are advised to contact their Regional NEASA Office before embarking on this process. 

Jaco Swart is the National Manager at the National Employers’ Association of South Africa (NEASA).

For more information:
NEASA Media Department
media@neasa.co.za