Phakisa Holdings, a leading South African investment holding company, is pleased to announce the recent judgment by the Constitutional Court of South Africa in the case of National Union of Metalworkers of South Africa (NUMSA) v Trenstar (Pty) Limited (Trenstar) CCT 105/22.
On April 18, 2023, the Constitutional Court handed down its judgment in an application for leave to appeal against the respective judgments of the Labour Court and the Labour Appeal Court. The application was brought by NUMSA, on behalf of its members who are employed by Trenstar. Trenstar undertakes all the internal logistics of parts of the plant within Toyota South Africa Manufacturing (TSAM) in Durban.
The application results from NUMSA requesting, on behalf of its members, that Trenstar pay a once-off taxable gratuity of R7,500 per employee in addition to their annual wage increase for the financial year of 2020. Unable to reach agreement on the demand with Trenstar, NUMSA referred a dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) for conciliation on July 28, 2020. After failed conciliation on the demand, NUMSA gave Trenstar notice that its employees would embark on a strike in support of the demand which commenced on October 26, 2020, and endured for several weeks.
NUMSA notified Trenstar on November 20, 2020, that the strike action would be suspended with effect from close of business on that day and that its members would return to work on Monday, November 23, 2020. NUMSA emphasized that although the employees would be tendering their services, this should not be construed as a withdrawal of the gratuity demand. On the same day, shortly after receipt of this notification, Trenstar notified NUMSA that it would impose a lock-out on its members effectively from 07h00 on Monday, November 23, 2020. The lock-out notice demanded that NUMSA’s members abandon the gratuity demand and asserted that the lock-out was in response to the strike, making section 76(1)(b) of the Labour Relations Act (LRA) applicable.
NUMSA contended that the use of replacement labor was impermissible as the strike had been “suspended,” thus the lock-out was not in response to a strike. Trenstar disagreed, contending that the lock-out notice was served before the strike was suspended and that the strike was nevertheless not over, having only been suspended as opposed to terminated.
NUMSA approached the Labour Court for an order interdicting Trenstar from using replacement labour. NUMSA did not challenge the lawfulness of the lock-out but instead alleged that it was not in response to a strike. The Labour Court dismissed NUMSA’s interdict application, reasoning that “strike” section 76(1)(b) qualified the type of lock-out during which replacement labour may be used; meaning that the mere suspension of the strike could not disqualify use of replacement labour.
NUMSA nevertheless appealed against the Labour Court’s judgment to the LAC. The LAC dismissed the appeal. It concluded that the matter was moot and that the circumstances, including the conflict between the Labour Court’s judgment under appeal and earlier Labour Court judgments, did not justify it nevertheless determining the legal issue.