An Employer may engage in locking out employees as a counter to a protected strike (defensive lock-out), or with a view of forcing employees to accept a final demand (offensive lock-out).
Even though the Constitution of the Republic of South Africa does not provide Employer’s with a reciprocal right to a lock out, as it provides employees with a right to strike, it has been confirmed that Employers may use economic weapons regulated by legislation within a Constitutional framework1. Thus providing Employers with valuable counters and bargaining tools.
The Employer may only institute an offensive lock-out once all the legislative requirements have been satisfied:
- The dispute must revolve around a matter of interest, and been referred to the CCMA / relevant Bargaining Council for conciliation;
- A Certificate of Outcome has been obtained and the prescribed 30 day conciliatory period has passed;
- The employer has given the Trade Union and / or Employees 48 hours notice of the lockout.
It must be stated that an Employer instituting an offensive lock-out may not utilise the services of replacement labour, however, it may use replacement labour during a defensive lock-out.
The reason for the distinction is attributable to the ongoing struggle for power between Employer and Employee, Employers’ Organisation and Union.
The Employer would gain an unfair advantage over its employees should it be entitled to employ an alternate source of labour during an offensive strike, just as Employees would gain the upper hand during a strike in which the Employer is prohibited from employing temporary labour during the said strike.
It is extremely important to ensure whether pre-strike and lock-out procedures are regulated by a Collective Agreement, and if so what requirements does the employer need to fulfill to comply the necessary criteria for a legal lock out.