The use of replacement labour during protected strikes – SACCAWU V SUN INTERNATIONAL

Trade Union SACCAWU(the Applicant) sought an order against Sun International (S.I,.) on the following terms:

• Declaring S.I.’s unlimited duration lock out is not in response to strike action;
• Interdicting and restraining the S.I from employing replacement labour in respect of those employees it has locked out.

S.I. in its argument relied on the authority of Ntimane v Agrinet t/a Vetsak (Pty) Ltd (1999) 20 ILJ 896 (LC) which stated that the right to employ replacement labour commences from the stage that an employer acts in reply to a strike and  that such right remains until the protected lock-out ceases.

The judge’s explained that the constitutional right to strike is not equivalent to the statutory right to lock-out. Thus, when interpreting section 76(1)(b) Labour Relations Act (LRA), one should do so in a manner which does not infringe on the constitutional right to strike. It was therefore held that the correct interpretation of section 76(1)(b) of the LRA is that the statutory right of an employer to hire replacement labour is restricted to the period during a protected strike and not after it has ceased. The Applicant was therefore successful in obtaining the interdict.

It follows that Employers may only employ replacement labour whilst the strike continues and thereafter the employees who embarked on the protected strike must be permitted to return to the workplace.

Read the judgment here: http://www.saflii.org/za/cases/ZALCJHB/2015/341.html