Use of scab labour – a matter of interpretation
The interpretation of section 76(1)(b) of the Labour Relations Act.
Case:
National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd (CCT 105/22 [2023] ZACC 11 (Trenstar).
Introduction:
The general rule is that an employer may not use replacement labour, known as “scab labour”, to perform the work of locked-out employees. An exception to this rule, provided for in section 76(1)(b) of the Labour Relations Act, is that the employer may use scab labour if the lock-out is in response to a strike. In this matter, the Constitutional Court dealt with the interpretation of that exception and the meaning of the words “in response to a strike”.
Background:
In the lead up to this case, NUMSA demanded, on behalf of its members, that Trenstar pay a once-off taxable gratuity to employees (“the demand”). The parties were unable to reach an agreement on the demand and NUMSA referred a dispute to the CCMA for conciliation. The dispute remained unresolved after conciliation and NUMSA issued notice to Trenstar that its employees would embark on a strike in support of their demand. The strike began on 26 October 2020.
On 20 November 2020, NUMSA notified Trenstar that its members would suspend the strike; however, that suspension was not to be interpreted as a withdrawal of the demand. On the same day, and shortly after receipt of the notification, Trenstar gave 48 hours’ notice of a lock-out to all NUMSA members. Trenstar recorded that the lock-out was in response to the NUMSA members’ strike action and section 76(1)(b) of the LRA was accordingly applicable. On this interpretation, Trenstar considered itself entitled to use replacement labour.
NUMSA approached the Labour Court (“LC”) on an urgent basis for an order interdicting Trenstar from using scab labour. In its court papers, NUMSA argued that the lock-out was not in response to a strike. The LC dismissed NUMSA’s application, stating that “strike” in terms section 76(1)(b) of the LRA qualified the type of lock-out during which replacement labour may be used – that the lock-out was in response to the strike, as opposed to an “offensive” lock-out, where the employer initiates industrial action.
NUMSA appealed to the Labour Appeal Court (“LAC”), which appeal was dismissed on the basis that the matter had since become moot as both the strike and lock-out had concluded.
Dissatisfied with the outcome of the LAC, NUMSA then approached the Constitutional Court, arguing that this matter was of Constitutional importance as it concerned the interpretation of legislation which gives effect to labour relations rights found in section 23 of the Constitution. The Constitutional Court, argued NUMSA, had jurisdiction as the interpretation of section 76(1)(b) was of general public importance. The Constitutional Court granted leave to appeal on the basis that it was in the interests of justice to do so.
Constitutional Court interpretation:
The Constitutional Court had to determine two legal issues on the merits of this case, namely, the distinction (if any) between suspended and terminated strikes, as well as the proper interpretation of “in response to a strike” under section 76(1)(b) of the LRA.
The Constitutional Court considered the definitions of “strike” and “lock-out” in section 213 of the LRA. Importantly, a strike means “the partial or complete refusal to work, or the retardation or obstruction of work…”. The court reasoned that once the strike was suspended, and the employees had tendered their services, there was no refusal to work. What remained was a demand, but “a demand unaccompanied by a concerted withdrawal of labour is not a strike”. As there was no longer a strike, the lock-out was not in response to a strike. Consequently, the court found that “employers cannot bring in replacement labour in the context of a lock-out during a suspended strike”.
The lesson is that a suspended strike is not a strike, and scab labour is not allowed when a strike has been suspended.
