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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
May 18, 2026

The previous article dealt with plant level collective agreements, in essence, to be considered in terms of s23 and 24 of the LRA.

On the other hand, sectoral level collective agreements are to be dealt with in terms of s31, read with s32 and s33A, of the LRA.

In respect of such sectoral level collective agreements, the following questions are currently of relevance:
• who is bound by a sectoral level collective agreement?
• what is the difference between a plant level collective agreement and a sectoral level collective agreement?
• how are collective agreements concluded in a bargaining council extended?
• how are sectoral collective agreements enforced?

May 11, 2026

What are the requirements to be complied with for a plant level agreement to constitute a collective agreement?

In respect of plant level collective agreements, the following questions are currently of particular relevance:

• who is bound by a plant level collective agreement?
• how does a plant level agreement extend to employees who are not members of the registered trade union or registered trade unions party to the agreement?
• if a plant level agreement has a specific beginning and end date, for what period is it binding?
• under what circumstances does a plant level agreement vary a contract of employment of an employee?
• if a plant level agreement is for an indefinite period, how can it be terminated?
• how are disputes regarding plant level collective agreements resolved?

May 4, 2026

From the previous articles dealing with employment equity, it is evident that a designated employer should, amongst other things (in no sequence of importance):

• identify the correct sector within which it operates, so that it can align itself with the sectoral targets
• ensure that its EEA9 classification is correct
• choose the right EAP
• determine whether a person is a suitably qualified person – firstly, same providing a ground for deviation from an employment equity plan and, secondly, same providing a justifiable reasonable ground for non-compliance with targets.

But, how should a designated employer deal with its employment equity targets from 2025 until the end of 2030?