National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J
• Judgment Date: 18 April 2023
• Citation: 2023 (4) SA 449 (CC)
• Hearing Date: 18 April 2023
• Counsel: M Pillemer SC (with D Aldworth) for the applicant. I Veerasamy for the respondent.
• Docket Number: CCT 105/22 [2023] ZACC 11
• Court: Constitutional Court

Rogers J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Theron J concurring):

Introduction

[1] An employer who embarks on a lock-out may not, as a general rule, use replacement labour to perform the work of the locked-out employees. There is one exception: if the lock-out 'is in response to a strike'. [1] This case is about the interpretation of that exception. The employer is the respondent, Trenstar (Pty) Ltd (Trenstar), whose employees include members of the applicant, the National Union of Metalworkers of South Africa (Numsa). Numsa brought an urgent application in the Labour Court to interdict Trenstar from using replacement labour during a lock-out. The Labour Court dismissed Numsa's application. The Labour Appeal Court subsequently dismissed Numsa's appeal on the basis of mootness. The matter comes before us as an application by Numsa for leave to appeal against the respective orders of the Labour Court and the Labour Appeal Court.

[2] The prohibition and exception mentioned above are contained in s 76(1)(b) of the Labour Relations Act [2] (LRA). For convenience, I quote the whole subsection:

'(1)

An employer may not take into employment any person —

(a)

to continue or maintain production during a protected strike if the whole or a part of the employer's service has been designated a maintenance service; or

(b)

for the purpose of performing the work of an employee who is locked out, unless the lock-out is in response to a strike.'

[3] Section 213 of the LRA defines 'strike' and 'lock-out' thus —

Rogers J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Theron J concurring)

'"strike" means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime "work", whether it is voluntary or compulsory';

'"lock-out" means the exclusion by an employer of employees from the employer's workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees' contracts of employment in the course of or for the purpose of that exclusion'.

Factual background

[4] On Friday 23 October 2020, after failed conciliation on a demand by Numsa for the payment of a one-off gratuity to employees, Numsa gave Trenstar notice that its members would embark on a strike starting at 07h00 on Monday 26 October 2020. The notice stated that the strike would take the form of a total withdrawal of labour. The strike began as notified and continued for several weeks. As a result of an urgent application by Trenstar to have the strike action declared unlawful and unprotected, the parties became legally represented. The details of that urgent application are not now relevant except to note that it failed.

[5] At 13h25 on Friday 20 November 2020, Numsa's attorneys notified Trenstar's attorneys thus:

'Kindly note that our client and its members have decided to suspend (as of the close of business on the 20th November 2020) the protected strike action which commenced on the 26th October 2020. This is not to be construed as a withdrawal of the demand for the R7500.00 ex-gratia payment.

Our client's members will tender their services and return to work on Monday the 23rd November 2020.'

[6] On the same day, and shortly after receipt of this notification, Trenstar wrote to Numsa as follows:

'Please take note that the Company hereby gives 48 hours' notice that it intends locking out all NUMSA members, with effect from 07h00 on Monday the 23rd November 2020.

This lock-out is in accordance with s 64(1)(c) of the LRA, in terms of which the Company's demand is that:

The NUMSA members in the Trenstar bargaining unit drop and waive their demand to be paid by the Company a once off taxable gratuity in an amount of R7500 to be paid in addition to the ATB.

The Company records that this lock-out is in response to NUMSA's strike action and accordingly s 76(1)(b) is applicable.

During the lock-out the picketing rules agreed between the parties shall be applicable.

Finally, the issuing of this lock-out notice does not constitute a waiver by the company that the strike action to date has been unprotected and

Rogers J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Theron J concurring)

which is currently before the Labour Court in respect of a Leave to Appeal application.' [Italics in the original.]

[7] Numsa's attorneys responded in a letter to Trenstar's attorneys, contending that the lock-out was in response to a strike, denying that Trenstar was entitled to use replacement labour during the lock-out and demanding an undertaking that Trenstar would not use temporary labour. In reply, Trenstar's attorneys disputed Numsa's attorneys' contentions. Trenstar's attorneys stated, among other things, that the lock-out notice was served before the strike was suspended at close of business on that day (Friday 20 November 2020) and that the strike was in any event not over, having only been suspended. Trenstar's lock-out began at 07h00 on Monday 23 November 2020.

Litigation history

Labour Court

[8] Numsa launched an urgent application in the Labour Court to interdict Trenstar from using replacement labour during the lock-out. Numsa did not challenge the lawfulness of the lock-out, but alleged that it was not in response to a strike. This was so, according to Numsa, because by the time the lock-out began, the strike action had ended. The lock-out was thus 'offensive'. [3] In its answering affidavit, Trenstar repeated the contentions contained in its attorneys' letter of Friday 20 November 2020. Trenstar alleged that Numsa and its members had not 'withdrawn the strike or the demand'; they had merely 'suspended it' and they could at any time 'reinstitute [it]'.

[9] The matter was argued before Whitcher J in the Labour Court on 24 November 2020. On 30 November 2020 the Labour Court delivered judgment, dismissing the application with no order as to costs. The Labour Court found that the lock-out was lawful. The court emphasised that the issue was not the lawfulness of the lock-out, but whether Trenstar could use replacement labour. Trenstar did not dispute that the employees had tendered their services, even though they had not abandoned their demand for the gratuity. Although the employees could resume the strike at any time, 'the current state of play is that the strike is over because the employees are once again tendering their services'. This was so, the Labour Court reasoned, having regard to the definition of 'strike' in the LRA. With the suspension of the strike, there was no longer a partial or complete concerted refusal to work.

[10] In the Labour Court's view, however, the word 'strike' in s 76(1)(b) simply functioned to qualify and identify the kind of lock-out during which replacement labour could be used. The Labour Court could not

Rogers J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Theron J concurring)

accept that the mere suspension of a strike, which attracted the counter-measure of a lock-out by the employer, disqualified the use of replacement labour. That would render it 'effectively nugatory' and lead to 'insensible or unbusinesslike results'. Properly interpreted, s 76(1)(b) provided that 'the trigger for the lawful use of replacement labour is the lock-out of those employees whose labour is to be replaced, not the existence of a continuing refusal to work by those employees'. The fact that the strike may have ended shortly before the lock-out started is not determinative.

[11] The Labour Court was alive to the fact that its interpretation would considerably weaken Numsa's bargaining position. However, it said that this was what the drafters of the LRA had done when permitting an employer to use replacement labour after a union has called a strike and the employer has responded with a lock-out.

[12] In light of the Labour Court's judgment, Numsa and its members abandoned their demand for a gratuity, and the lock-out ended. According to Numsa, its members had little choice but to capitulate. The effect of the Labour Court's judgment was that Trenstar could continue to use replacement labour indefinitely without any negative impact on its business operations. Numsa's bargaining position was hopelessly weak.

Labour Appeal Court

[13] The Labour Court granted leave to appeal to the Labour Appeal Court. That court dismissed the appeal. It was common cause, said the Labour Appeal Court, that because the strike and lock-out had both ended, the matter was moot. Numsa argued that it was still in the interests of justice for the Labour Appeal Court to address the legal issues, because the Labour Court's judgment in the present case was at odds with the earlier judgment of the Labour Court in Sun International. [4] The Labour Appeal Court was unmoved. The court stated that, although Numsa was a large trade union, it did not represent the broader labour- law community. No other party had applied to join as an amicus. Whether Trenstar's lock-out was in response to the strike was, moreover, an issue to be determined 'on the unique facts of the case'. That there were conflicting judgments on the legal issue did not alter the position.

Contentions in this court

Numsa's contentions

[14] On jurisdiction, Numsa submits that our constitutional jurisdiction is engaged because the case concerns the interpretation of the LRA, being legislation giving effect to the...