Using Replacement Labour When Locking Out Employees "is In Response To A Strike" – What Does This Mean?

A recent Constitutional Court case had to consider the circumstances where an employer had instituted a lock-out and utilised replacement labour in response to a strike.

Whether employers could utilise replacement labour during a strike or lock-out was initially hotly debated during the process that led to the enactment of the Labour Relations Act ("LRA") in 1995. Trade union parties to the process tirelessly opposed the right of employers to use replacement labour, while the employers argued that they should have the right to do so.

The eventual compromise that found its way into the LRA is found in section 76. Its effect may be summarised as follows:

• an employer may take into employment any person to continue or maintain production during a protected strike, provided that the whole or part of the employer's business has not been designated as a maintenance service;