The right to strike is enshrined in section 23 of the South African Constitution and regulated in some detail in the Labour Relations Act, 1995 (“LRA”). It is a valuable arrow in the quiver of strategies to be considered by employees when engaging in collective bargaining, but employers also have recourse when it comes to collective bargaining: locking out employees. In a sense, the right to strike and the recourse to a lock-out in this context are two sides of the same coin. However, this does not mean that the one is dependent on the other.
The facts in the decision of the Labour Court in National Association of South Africa Workers (“NASAW”) obo Members v Kings Hire CC provide an interesting illustration of the interaction between a strike and a lock-out. The demand in this matter concerned a demand for the payment of a 13th cheque to the employees, which the employer refused. The employees’ union, NASAW, then invoked the procedures envisaged in section 64 of the LRA in order to acquire the right to strike. Following receipt of the certificate of non-resolution, NASAW gave the employer 48 hours’ notice of its intention to strike in accordance with the provisions of section 64. The strike was set to commence on 2 September 2019.
In response, the employer obtained an interim interdict from the High Court which prohibited the striking employees from interfering with the employer’s business and intimidating other employees. The order set a perimeter of 500 meters around the employer’s premises that strikers could not encroach upon. The strike itself, however, was not interdicted. NASAW then elected to suspend the strike and informed the employer that the strike action was to be held in “abeyance” until the finalisation of the High Court case. This was communicated to the employer on 31 August 2019.
When they reported for work on the day the suspended strike had been set to commence (2 September 2019), the employees were excluded from the employer’s premises and informed that they had been locked out. However, the lock-out notice was only issued by the employer on the following day. This notice advised the employees that the lock-out would only commence on 5 September 2019.
As expected, NASAW informed the employer that it considered the lock-out to be unlawful. The reason provided was that the lock-out had been implemented in the absence of any strike action. The employer responded that the lock-out was not in response to a strike, but was a direct response to the dispute of mutual interest concerning the 13th cheque, which remained unresolved.
Thus, matters stood until the end of September 2019 when the employees received no pay because the employer argued that they had been locked out. This prompted NASAW to threaten to launch urgent proceedings in the Labour Court directed at declaring the lock-out unlawful. However, for reasons unknown, the urgent application was only instituted at the end of October, two months after the lock-out was instituted. Not surprisingly, the application failed on urgency. The Labour Court nonetheless considered it prudent to deal with the merits of the matter. Specifically, the Labour Court was required to decide whether the lock-out could not be implemented if the strike had not yet commenced.
Right to lock-out
Section 64 of the LRA records that every employee has the right to strike and every employer has the “recourse” to lock-out. On one reading, the word “recourse” may imply that the employer may only act “in response” to or as a “reaction” to a strike. In this matter, NASAW adopted the position that a lock-out could only be in response to a strike in circumstances where a prior strike notice had been issued. The employer, on the other hand, argued that the lock-out arose from the dispute that underpinned both the strike action and the lock-out.
The Labour Court confirmed that a strike and a lock-out are two sides of the same collective bargaining process, in this instance distinguished as follows:
- the strike notice was directed at placing pressure on the employer to accept the demand; and
- the lock-out notice was directed at placing pressure on the employees to withdraw their demand.
Accordingly, their respective purposes are identical, ie, to resolve the dispute. This, however, does not mean that the implementation of one is dependent on the other. The Labour Court confirmed that an employer may institute a lock-out before, simultaneously with, or after, a strike has commenced.
This judgment illustrates an important point. If a union has referred a dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”), conciliation has taken place, and a certificate of non-resolution of the dispute has been issued, the employer may then institute a lock-out to enforce its demand on the same issue that was referred to the CCMA by the union. It is unnecessary for the employer also to refer a dispute to the CCMA on this issue. However, the employer must still give 48 hours’ notice of its intention to lock out.
This notice to lock out can be given prior to the notice of a strike being given. It is not necessary for the employer to wait until notice of a strike has been given or to wait for the strike to commence. Nevertheless, nothing prevents the employer from waiting until the notice to strike has been given before it gives its notice of intention to lock out. However, in the scenario where the employer embarks on a lock-out prior to notice of an intention to strike being issued, the employer may lose its right to utilise replacement labour during its lock-out. This is because section 76 of the LRA states that, in the case of a lock-out, replacement labour may only be utilised if the lock-out is “in response to” a strike.
Reviewed by Peter Le Roux, an Executive Consultant in ENSafrica’s Employment department.