SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341; (2016) 37 ILJ 215 (LC); [2016] 1 BLLR 97 (LC) (6 October 2015)

SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341; (2016) 37 ILJ 215 (LC); [2016] 1 BLLR 97 (LC) (6 October 2015)

The court held that section 76(1)(b) of the Labour Relations Act restricts the employer's right to employ replacement labour to the period during which a protected strike is ongoing. Once the strike has ended, the employer may no longer employ replacement labour for the purposes of a lock-out, even if the lock-out continues. This interpretation is consistent with the constitutional protection of the right to strike, which should not be limited by statutory provisions unless expressly provided. The court declined to follow the Agrinet judgment and found that the respondent's continued use of replacement labour after the strike infringed the applicant's constitutional right to strike and...

Citation
[2015] ZALCJHB 341
Parties
Applicant: SACCAWU; Respondent: Sun International
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 October 2015
Case Number
J1951/15
Procedural Posture
Urgent Application / Final Interdict Application After Urgent Proceedings
Outcome
Application granted. The respondent is interdicted from utilising replacement labour for the purpose of performing the work of any employees locked out by virtue of the lock-out declared on 22 September 2015. Costs awarded to the applicant.
Judges
Rabkin-Naicker
Legal Topics
Replacement Labour, Protected Strike, Lock Out, Interpretation of Lra, Constitutional Right to Strike
Labour Law Replacement Labour Protected Strike Lock Out Interpretation of Lra Constitutional Right to Strike

Case Brief

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Parties

SACCAWU

Applicant

Sun International

Respondent

Procedural Posture

Urgent Application / Final Interdict Application After Urgent Proceedings

Legal Issues

  1. 1 Whether an employer may continue to use replacement labour after a protected strike has ended and during the continuation of a protected lock-out under section 76(1)(b) of the LRA.
  2. 2 Whether the respondent's use of replacement labour infringes the applicant's constitutional right to strike.
  3. 3 Whether the applicant is entitled to interdictory relief preventing the respondent from employing replacement labour after the strike has ceased.

Ratio Decidendi

The court held that section 76(1)(b) of the Labour Relations Act restricts the employer's right to employ replacement labour to the period during which a protected strike is ongoing. Once the strike has ended, the employer may no longer employ replacement labour for the purposes of a lock-out, even if the lock-out continues. This interpretation is consistent with the constitutional protection of the right to strike, which should not be limited by statutory provisions unless expressly provided. The court declined to follow the Agrinet judgment and found that the respondent's continued use of replacement labour after the strike infringed the applicant's constitutional right to strike and...

Court Disposition

Application granted. The respondent is interdicted from utilising replacement labour for the purpose of performing the work of any employees locked out by virtue of the lock-out declared on 22 September 2015. Costs awarded to the applicant.

Orders

  • The respondent is interdicted forthwith from utilising replacement labour for the purpose of performing the work of any employees who are locked out by virtue of the lock-out declared by the Respondent on 22 September 2015.
  • The respondent is to pay the costs of this application.