NUMSA wins its appeal against Trenstar on the use of replacement labour during a strike

19 April 2023

The National Union of Metalworkers of South Africa (NUMSA) welcomes the decision of the constitutional court yesterday, in a matter involving Trenstar. NUMSA was seeking leave to appeal against judgments of the Labour Court and the Labour Appeals Court. At the heart of the application to the constitutional court is that we wanted the court to set aside the judgments of these lower courts, and confirm the interpretation advanced by NUMSA regarding the meaning of the section in the Labour Relations (LRA) that deals with the circumstances under which an employer who engages in a lockout, may use the services of replacement labour in response to a strike.

Section 76 (1)(b) of the LRA provides that replacement labour is permitted in a lockout in response to a strike. NUMSA wanted clarification on the interpretation of section 76(1)(b) of the Labour relations Act on the question of whether an employer can implement a lockout when a strike has been suspended by the trade union. Fortunately the court found in NUMSA’s favour.

The judgment handed down by the constitutional court is as follows:

1. Leave to appeal is granted

2. The appeal succeeds

3. The order of the Labour court is set aside and replaced with the following order:

“It is declared that the respondent was not entitled to use replacement labour for the purpose of replacing any employees, who were locked out by virtue of the lockout declared by the respondent in November 2020.”

4.  The parties shall bear their own costs at the Labour court and the LAC, as well as at the constitutional court.

The NUMSA General Secretary comrade Irvin Jim says the union went to court to prevent employers from abusing the lockout:

“The tool of the lockout may have the effect of giving employers disproportionate and unfair power at their disposal. NUMSA will always fight for the right to strike and it has participated in numerous court cases to defend this hard won right and this is why this court case was important, to ensure that bosses do not abuse their power through the lockout.”

It is also important for the constitutional court to defend the right to strike because it is a right enshrined in the constitution. The interpretation of the right should go as far as possible in enabling that right, and it should not give employers the power to limit that right.

Issued by Phakamile Hlubi-Majola, NUMSA National Spokesperson, 19 April 2023