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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
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?