Court ruling blunts lockout as weapon

A RECENT Constitutional Court judgment about employee lockouts poses serious challenges for employers, an employment law expert has said.

The court last week Tuesday ruled in an appeal by the Transport and Allied Workers Union of South Africa (Tawusa) that employers cannot lock out members of a union who were not party to a dispute that arose at the bargaining council.

In the matter before the court, a strike notice was issued by two unions after industry wage negotiations gridlocked at the bargaining council.

In response, bus commuter company Putco gave notice of its intention to lock out all employees.

This included Tawusa members even though the union was not a party to the negotiations at the bargaining council. Tawusa approached the Labour Court seeking an interdict to prevent Putco from locking out Tawusa members it employed.

Joe Mothibi, director of employment law at law firm Norton Rose Fulbright, said judgment clarified that while employees have the right to strike, employers did not have an absolute right to lock out.

Lockout is the closing down of a business by an employer or a refusal to allow employees to come to work until they accept the employer ’ s terms.

“The judgment means that for as long as employees which belong to a union which was not party to a dispute report for duty during the strike, they have to be paid.”

Mothibi said the lockout was one of the weapons available to employers to break the strike. “This judgment blunts it somewhat.” Mothibi said if there were employees who wanted to come to work, an employer might find itself having to pay them to stay at home, given the levels of intimidation and violence often aimed at non-striking workers.

Mothibi said the judgment meant employers must choose their battles carefully.

“They must not be too hasty in going the lockout route. They must know who is likely to be locked out and whether the lockout will have the desired effect.”