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Article 37/2024

LabourEdge

Section 76(1) of the LRA reads as follows:

  • An employer may not take into employment any person –
    • 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
    • for the purpose of performing the work of an employee who is locked out, unless the lock-out is in response to a strike.’

What approach did the constitutional court recently adopt, in NUMSA v Trenstar (Pty) Ltd (2023) 44 ILJ 1189 (CC); [2023] 7 BLLR 609 (CC); (2023) 34 SALLR 67 (CC), to determine whether an employer can rely on s76(1)(b) of the LRA to employ replacement labour when a strike has been suspended?

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The constitutional court, in the Trenstar judgment, adopted the following approach to such issue: 

  • two fundamental requirements must be met for action on the part of the trade union and the employees to constitute a strike, namely, there must be the concerted (collective/coordinated) withholding of labour (entailing the refusal to work/retardation/obstruction of work) and such concerted withholding of labour must be for a specific purpose
  • the implications of both the aforesaid requirements having to be present before conduct constitutes strike action entails, at the most fundamental level, that, if one of these requirements is absent, there cannot be a strike
  • the LRA does not distinguish between termination of strikes and suspension of strikes – a strike ends when there is no longer a concerted withdrawal of labour, even if a demand still exists, as is the case with the so-called suspension of a strike
  • when a strike is suspended, the trade union and its members have not given up the demand, but there is no concerted withdrawal of labour – the consequences being that there is still an unconditional right to strike (seeing that the dispute has successfully been processed by means of s64 and s65 of the LRA)
  • once the conduct of the trade union and the employees no longer constitutes a strike, as set out above, the employer is entitled to implement a lockout, but the lockout is not in response to a strike and, therefore, the employer will not be able to rely on s76(1)(b) of the LRA to utilise replacement labour
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But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

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