Article 67/2022

What are the latest developments in respect of lockouts?

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The approach adopted in Transport and Allied Workers Union of South Africa v PUTCO (2016) 27 SALLR 22 (CC); (2016) 37 ILJ 1091 (CC); [2016] 6 BLLR 537 (CC), read together with the labour court’s recent judgment in SA Commercial Catering and Allied Workers Union v Sky Country Meats Thaba’Nchu (Pty) Ltd (2020) 31 SALLR 160 (LC); (2020) 41 ILJ 2913 (LC), entails the following:

  • an unpacking of the definition of ‘lockout’ as well as the definition of ‘issue in dispute’ in s213 of the LRA entails:
  • an acknowledgment that the format of a lockout is the exclusion by the employer of its employees from the employer’s workplace
  • the purpose of compelling the employees to accept a demand made by the employer
  • the nature of the employer’s demand concerns a matter of mutual interest between the employer and employee
  • the ancillary benefit for the employer is that it is permitted to breach the contracts of employment in the course of and for the purpose of a lockout
  • that the necessary implications of the aforesaid exposition are that a demand made by the employer must precede the institution of a lockout and that the lockout notice does not constitute the required preceding demand – an issue in dispute must precede the institution of the lockout, same amounting to a demand, grievance or issue forming the subject matter of the lockout
  • when unpacking s64(1)(a), read with s64(1)(b), of the LRA, the following phases in implementing a lockout can be identified:
  • first phase: an application of s64(1)(a)
  • the issue in dispute must be referred to the CCMA or the relevant bargaining council for conciliation
  • second phase: an application of s64(1)(a)(i), read with s64(1)(a)(ii)
  • a certificate of non-resolution issued or the expiration of a 30-day period (or an extension agreed upon by the parties) since the CCMA/bargaining council received the referral is to occur before the lockout notice is issued
  • third phase: an application of s64(1)(c)
  • 48 hours’ written notice of the lockout must be 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 be given to that council (or, in the case of a proposed strike or lockout where the state is the employer, at least seven days’ notice of the commencement of the strike or lockout has been given to the parties contemplated above)
  • further necessary implications of the aforesaid phased approach:
  • an issue in dispute must proceed a referral to conciliation
  • the issue in dispute must be between the relevant parties and the relevant subject matter referred to conciliation – a lockout is only permitted in respect of the said subject matter and the said parties

See further NUMSA v Trenstar (2021) 32 SALLR 23 (LC); (2021) 42 ILJ 555 (LC)

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).