BL Premium reports that the Constitutional Court (ConCourt) ruled on Tuesday on the use of replacement (‘scab’) labour by an employer during a lockout.
The unanimous judgment, written by Judge Owen Rogers, noted that strikes were constitutionally protected while an employer’s right to lock out was not. The court case arose out of a 2020 dispute between striking workers belonging to the National Union of Metalworkers of SA (Numsa) and Trenstar, a logistics company for Toyota. After a strike over a demand for a one-off gratuity, Numsa gave notice to Trenstar that its members would be returning to work. On the same day, Trenstar responded that it would lock out Numsa members on their return. Trenstar said at the time that because the lockout was a “response” to the strike, it was allowed to use replacement labour. In law, during lockouts, employers may not use replacement labour to perform the work of those workers it has locked out, except when the lockout is a “response” to a strike. Numsa argued in the Labour Court (LC) that the strike was over and thus the replacement labour was unlawful and unnecessary. Trenstar, however, argued the strike had merely been suspended, not fully terminated, so it was allowed to use replacement labour in response to a continued strike. The LC ruled in favour of Trenstar by not accepting that a mere suspension of a strike negated the lawful use of replacement labour. Numsa appealed to the Labour Appeal Court, which dismissed the matter as moot. More recently in the ConCourt, Numsa argued that even though the matter was moot, a determination by the apex court would affect all involved in collective bargaining. In his ruling, Rogers noted that the Labour Relations Act did not deal with distinctions between suspended and terminated strikes. He ruled that because Numsa told the company that its workers would be returning to work this meant the strike was over. “A ‘strike’ is a state of affairs occurring with a particular purpose. It either exists or it does not. A ‘strike’ ends... when there is no longer a concerted withdrawal of labour,” he wrote. Rogers also held that “the right to use replacement labour no longer existed when the lockout actually began.” This meant Trenstar could not use this as a mechanism to effectively punish workers for striking.
- Read the full original of the report in the above regard by Tauriq Moosa & Luyolo Mkentane at BusinessLive (subscriber access only)
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