Cape Town - Whether using replacement labour during a strike is unlawful or not has come into focus at the Constitutional Court, in a case between the National Union of Metalworkers of South Africa (Numsa) and logistics company, Trenstar.
This, after the company used a lock-out notice demanding that Numsa’s members drop and waive their demand for payment of the once-off taxable gratuity, or be denied access to work.
In March 2020, the parties agreed to a 9% wage increase that would be effective from April 1 2020 to March 30, 2021.
In addition to the wage increase, Numsa, on behalf of its members, later requested a once-off taxable gratuity of R7 500 per employee (the demand).
The parties were unable to reach an agreement in respect of the demand and so Numsa referred a dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) for conciliation on July 28, 2020.
On October 26, 2020, Numsa’s members embarked on a strike in support of the demand.
When Numsa notified Trenstar that the strike would end on November 20, the company notified Numsa that it would lock out its members.
The lock-out notice demanded that Numsa’s members drop and waive their demand for payment of the once-off taxable gratuity of R7 500.
The lock-out notice further recorded that section 76(1)(b) of the Labour Relations Act (LRA) was applicable as the lock-out was in response to Numsa’s strike action.
Section 76(1)(b) permits the use of replacement labour during a lock-out when the lock-out is “in response to a strike”, the company argued.
Numsa approached the Labour Court for an order interdicting Trenstar from using replacement labour but the application was dismissed.
The union also tried to appeal but was unsuccessful.
It has now decided to approach the apex for clarity on the interpretation of section 76(1)(b), citing two judgments that demonstrate conflicting interpretations.
Numsa on Thursday argued for an order, “setting out that upon a proper constitutional interpretation of s76(1) (b) of the Labour Relations Act 66 of 1996 (as amended) it is not permissible for an employer who has locked employees out to use replacement labour if the employees tend to return to work and it elects to preclude them from doing so by enforcing a lockout.”
They argue that allowing replacement labour during a lock out “the collective bargaining balance swings overwhelmingly and disproportionately in favour of the employer”.
Trenstar called for the leave to appeal application to be dismissed with costs, on the basis that the “issue is moot”.
It argues that an order would have no practical effect as the law is clear and that there is no need for clarification as there is a factual distinction between the cases cited.
“The nub of the appellants argument is that they are weakened in their bargaining position by their own circumstance where they have suspended their strike but the lock out continues as does the use of replacement labour. This argument overlooks the fact that the appellants retain the right to start striking again,” court papers for Trenstar read.
“It is the respondent’s contention that if the appellants’ argument were to be accepted, no lockout in response to strikes could be successful as every time an employer was given 48-hours’ notice of a lockout in response to a strike, a union could defeat this by simply issuing a suspension notice bringing the strike to an end before the lockout notice took effect.”
Cape Times