IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number:
J1030/00
In the matter between
NATIONAL UNION OF TECHNIKON EMPLOYEES
Applicant
and
TECHNICON SOUTH AFRICA
Respondent
JUDGMENT
PILLAY AJ
1. Whether a lockout is offensive or defensive is characterised by the primary
purpose for which it is used. If the primary purpose is to compel the trade union
and employees to meet the employer’s demand then it is offensive.
2. The primary purpose of a defensive lockout is to protect the employer’s rights to
property, personnel and economic activity. Consequently, if the strike were to be
accompanied by intimidation or were to take the form or a “worktorule” or “go
slow” that disrupts the operations of the employer, the latter can resort to a
lockout to protect itself.
3. Once a certificate is issued to the effect that the dispute remains unresolved,
either party, or both, may give notice to strike or lockout. Section 64(1)
provides:
“
(c) in the case of a proposed lockout, at least 48 hours' notice of the
commencement of the lockout, in writing, has been given to any
trade union that is a party to the dispute, or, if there is no such
trade union, to the employees, unless the issue in dispute relates
to a collective agreement to be concluded in a council, in which
case, notice must have been given to that council; or”
Nothing in Section 64(1) precludes an employer from giving notice of a lockout
before, simultaneously with or after a trade union has given notice of a strike and vice
versa.
4. If the employer wishes to compel compliance with its own demand, then it will
have to give notice in terms of Section 64(1)(c). A lockout is defensive if the
strike is not protected. Section 64(3)(d) provides:
“(d) the employer locks out its employees in response to their taking
part in a strike that does not conform with the provisions of this
Chapter; or”
5. However, if the lockout were to persist after the strike ended, then for the
purpose of compelling compliance with the employers demand, the lockout
would be offensive.
6. A lockout in response to a protected strike will also be defensive. Although the
primary purpose of a defensive lockout is to protect the employers rights to
property, personnel and economic activity, the underlying objective is that the
employees accede to its demand, will exist(?) as a counter to the employees
demand.
Section 76 provides:
“Replacement labour
(1) An employer may not take into employment any person
(a) ......
(b) for the purpose of performing the work of any employee who is locked out,
unless the lockout is in response to a strike.
7. The recourse to replacement labour is added on to a defensive and not an
offensive lockout. This is an additional instrument to protect the employer, and is
available only in the case of a defensive lockout.
8. On the facts of this case, it is common cause that the Applicant issued a valid
notice to strike in the following terms:
“We hereby give you notice of our intention to commence a full blown strike on
Tuesday 14 March 2000 at 7:45 and Wednesday 15 March 2000 inclusive.
From Thursday 16 March 2000, all strikers will be back at work. However,
during the day union members will embark on the following industrial action:
∙ Picketing
∙ Go Slow
∙ Work to rule
9. The Respondent gave notice of its intention to lockout which reads as follows:
“We have now received a proper strike notice from yourselves in which
you indicate that your unions’ members will commence with a full blown
strike on Tuesday 14 March 2000 at 7:45.
We hereby give notice of our intention to embark on a lockout of your
unions’ members from the time following the commencement of such
strike as referred to above and in response thereto, as envisaged in
sections 64(1)(c) and 76(1)(b) of the Labour Relations Act, 1995. (“The
Act”). Such lockout shall continue until such time as the unions accept
the Technikon Management’s last wage offer dated 13 January 2000.
In the event of such a lockout the terms of the picketing agreement will
not apply as all of your members will be excluded from entry to
Technikon premises. Your members and your representatives will
however still be required to comply with the code of good practice
relating to picketing in response to a lockout read with the provisions of
section 69 of the Act.”
10. The Respondent’s notice is qualified by paragraphs 30.1 and 30.2 of its
answering affidavit which provided as follows:
“30.1 At not time has the respondent attempted to frustrate he applicants right
to strike. To the contrary, the respondent recognises that the applicant and its members
have the right to embark on lawful and protected strike action, which includes lawful
picketing rights. It is however recorded that the respondent may also exercise its valid
rights in response thereto. In this regard I repeat that the respondent has committed
itself to discussing with the unions representatives the application of the picketing
agreement on 13 March at 12h00.
30.2 The respondent has no intent to breach the picketing agreement in any
material respect relating tho the union’s intended fullblown strike on 14 and 15 March
2000, except insofar as its provisions are irreconcilable with a contemporaneous lock
out. The respondent is of the view that the picketing agreement does not apply to a
partial strike as envisaged by the unions for 16 March 2000 or thereafter and will
accordingly apply its full rights in respect of a lockout from 16 March 2000 and
thereafter.”
11. The clauses of the picketing agreement material to the application are as
follows:
“2.5 Employees, be they Union members or management representatives,
will not participate in any acts of violence and/or intimidation;
...
2.7 Employees not participating in the strike will not be prevented from
working nor will their vehicles nor visitors nor students entering or leaving the employer
premises be prevented from doing so;
2.8 Entrances or exits to the employer’s premises will not be blocked off by
any of the parties, other than for normal security reasons as currently in place, and as
such, delivery and receiving processes shall not be obstructed;
2.9 No offices, corridors, passages, elevators, rooms nor the canteen at the
employer’s premises will be occupied by striking/picketing employees, with the
exception of the provisions of 3.6.2
...
3.2 Striking employees not participating in a picket an any picketing point shall
confine themselves to the garden area near the main entrance, between A & H Blocks
of the Technikon’s premises.
3.3 Picketers and/or supporters may not move beyond security access
points during the course of the picket or thereafter during the strike.
...
4.1 Provided that the conduct of striking employees is in accordance with
this Agreement, management shall not interfere or intervene with them in any manner,
subject to point 4.2 hereunder.”
er
12. The respondent’s lockout notice read with paragraphs 30.1 and 30.2
characterises the lockout as an offensive and not a defensive lockout. The
notice professes to be for a defensive lockout. However, I find that this is in
fact not the case because the lockout is being instituted with a notice in terms
of Section 64(1)(c) and against the demand that the unions accept its last wage
offer. The purpose of the lockout is not to protect the Respondents property,
personnel or economic activity. The notice clearly states that the picketing
agreement which provided certain protections for the Respondent would not
apply and that all members, not just strikers, would be excluded.
13. There was no need for a defensive lockout as the picketing agreement would
have met the Respondents concerns, it being a document freely negotiated that
very day by the parties.
14. The defensive lockout would have become necessary if the Applicant breached
the agreement. The Applicant’s notice clearly suggests that it intends to breach
the agreement from 16 March 2000. Mr Hattig, for the Applicant, conceded that
the “worktorule” and “goslow” are forms of strike. They were such forms of
individual action that would result in breaches of the agreement. The strikers will
not confine themselves to the demarcated areas as set out in the agreement.
The Respondent would be entirely within its rights to resort to a lockout without
notice in terms of Section 64(3)(d) in those circumstances.
15. Another reason why the lockout is offensive is that the notice does not
distinguish between striking and nonstriking members of the union as might be
expected if it were a defensive lockout. Furthermore, Mr Olivier, for the
Respondent, confirmed that the lockout would be effected immediately after the
strike commenced on the morning of 14 Match 2000 and not on 16 March 2000
when the form of strike would change to that of a “goslow” and a worktorule”.
This too supports my conclusion. That the lockout is offensive and not
defensive.
16. The Respondent would be entirely within its rights to ________ an offensive
lockout but for the fact that it compromised this right to some extent in the
agreement. If it interpreted an offensive lockout it had to do so ______
17. The Respondent makes it clear at 30.2 that it intends to breach the agreement
17. The Respondent makes it clear at 30.2 that it intends to breach the agreement
insofar as it is inconsistent with its right to institute an offensive lockout. By
excluding all the members of the Applicant from the premises it will not be
exercising its right to institute an offensive lockout consistent with the
agreement.
18. Seemingly the Respondent believes that a fresh picketing agreement had to
ensue as a result of its notice. From this it can be inferred that it was an
offensive lockout.
19. The benefit for the Respondent in saying that the lockout is in response to the
strike is that it hopes that it would then qualify in terms of Section 76(1)(b) to
employ replacement labour. Although the Respondent says that ____ in
response to the strike, after all the facts are considered it would appear that this
assertion is a facade. The Respondent clearly sought to initiate a lockout
independent of the strike, a lockout that would be supported by its own
picketing rules.
20. Even if I am wrong in concluding that this is a facade, the Respondent would still
not qualify to employ replacement labour.
21. A literal interpretation of the words, “in response to” ____mean that whenever
the employer wishes to have replacement labour, it can only qualify to do so if
its lockout is at that stage in response to a strike. If the strike ends then so does
the right of the employer to replacement labour. If this was not so then Section
76(1)(b) would result in any lockout, defensive or offensive, attracting the right
to employ replacement labour. Such an interpretation would have untenable
results. An employer can make any demand, lockout its workforce, employ
replacement labour. It is conceivable that ab employer may prefer to run its
operations under such conditions. The employees will be disproportionally
disadvantaged. The right to picket peacefully is, with respect, not an adequate
________ right. To this extent I disagree, with respect, with my brother
Landman, J in Ntimane and others v Agrinet t/a Vetsak (Pty) Ltd 1999 20 ILJ
896 at 900IJ:
22. Alternatively to the aforegoing a purposive approach should be pursued in
interpreting Section 76(1)(b). In that case the words “in response to” should
mean “in defence of”. Such an approach would result in the right to replacement
labour being exercised only when the lockout is defensive. The purposive
approach should be preferred as a literal interpretation would lead to every lock
out _____ the right to replacement labour merely because it is labelled as a “in
response to” strike.
23. I accordingly summarise my findings as follows:
25.1 The Respondent’s notice dated 8 March 2000 read with paragraphs 30.1
and 30.2 of its answering affidavit was:
25.1.1 to implement an offensive lockout;
25.1.2 in breach of the agreement;.
25.4 The lockout that the Respondent intended to effect on 14 March 2000 was not
in response is to strike.
The offensive lockout would not be consistent with the agreement if all
the Applicants’s members were excluded from the premises.
25.2 The Respondent is entitled to lockout the Applicant’s members if they
breach the agreement.
25.3 The Applicant and its members will be in breach the agreement if the
strike takes the form of “goslows” and “worktorule.”
25.5 The Respondent may not employ replacement labour unless it institutes
a defensive lockout.
25.6 The Respondent may institute an offensive lockout provided it
implements it in a way that is consistent with the agreement.
24. Du Toit et al , in The Labour Relations Act of 1995 , traces the development of
the replacement labour provisions. The unions wanted the right to lockout to be
restricted to defensive lockouts which they should be allowed to challenge in
Court on the grounds of equity (at page 29). However no agreement was
reached (pg32).
25. Du Toit et al also take the view that Section 64(1) read with Section 5 limits the
range of permissible employer responses to a protected strike considerably.
However the employers weapons include:
“1. Institute a defensive lockout (but not a secondary lockout);
2. Employ temporary replacement labour;
3. Withhold remuneration for the duration of the strike;
4. If the circumstances warrant it, dismiss (or perhaps even suspend) its
employees on the grounds of operation requirements.”
(at page 195)
28. Du Toit et al also make the point that the recourse as opposed to a right to a
lockout is not merely semantic. One of the consequences of the distinction is
the following:
“Second, recognition of a right to lockout would have made it impossible to
prohibit replacement labour during a lockout. The trade union representatives in
NEDLAC attempted to secure a ban on replacement labour both during a strike
and a lockout, but in the end the Act reflects a compromise: it allows
replacement labour during a strike and a defensive lockout, but prohibits it
during an offensive lockout. [s76(1)(b)]”
(at page 196)
29. I accordingly make the following order:
1. The times and requirements provided for in Rule 7 are dispensed with
and the matter is permitted to be heard as one of urgency as provided for in Rule 8.
29. The Respondent’s notice of its intention to lockout is declared invalid and
consequently the Respondent is interdicted from locking out the
Applicant’s members.
30. There is no order as to costs.
29. Having heard representations from the Respondent leave to appeal to the
Labour Appeal Court is granted.
D PILLAY A J
Acting Judge of the Labour Court
DATE OF HEARING: 13 MARCH 2000
DATE OF JUDGMENT:
For the Applicant: J.B. Hugo and Cronje
For the Respondent: Brink Cohen Le Roux and Roodt Inc