Defensive and Offensive Lockouts

A “defensive lockout” is the employer’s right to exclude striking employees from the workplace. Where employees have embarked on strike action, a defensive lockout presents them with a choice: they may either continue with the strike or accept the employer’s final offer.

Where a lockout is not in response to a strike but is utilised by the employer as a tool intended to force non-striking employees to accept their proposal, it is referred to as an “offensive lockout”. It is important to note that Section 76 Labour Relations Act 66 of 1996 precludes employers from utilising replacement labour during the course of an offensive lockout.

Defensive lockouts are useful where a deadlock in negotiations between an employer and its employees is reached and the employees go on strike. The institution of a lockout by the employer takes the advantage away from the employees to decide for themselves when to return to work.  The employees will only be allowed to return to work when the strike is over and an agreement has been reached. This prevents striking employees from working on and off during during the course of the strike and places pressure on the employees to accept the employer’s proposal. Furthermore, the employer is entitled to utilise replacement labour until the defensive lockout comes to an end.

In Ntimane & Others v Agrinet t/a Vetsak Pty (Ltd) J3202/98 the applicants sought a declaration that their employer’s current lock­out was not in compliance with the Labour Relations Act 66 of 1995. The lock­out, in this matter, commenced as a defensive lock­out (i.e. a lock­out in reaction to a strike). However, the employees had abandoned their strike shortly after the lockout was imposed by the employer but had not accepted the employer’s position regarding the dispute. As such, the lockout was not lifted by the employer. The court was called on to decide if this altered the ‘defensiveness’ of the lockout. The union argued that it did because the lock­out was no longer in response to a strike, and, as such, had transformed into an offensive lockout whereby the employer was no longer entitled to rely on replacement labour.

Ultimately, the court found that the abandonment of a strike has no legal effect on the lockout imposed by an employer. In coming to this decision, the court noted that Section 76 grants an exception to the ban on replacement labour in the circumstances of a defensive lockout. However, the section does not provide that it is rendered inapplicable when the strike in response to which the lock­out was instituted is terminated by the employees. The court stated further that the defensive nature of the lock­out, and the right to employ replacement labour, accrues at the stage the defensive lock­out is implemented and persists until the lock­out ceases.

This decision by the court is an important acknowledgement that an abandoned strike does not mean that the dispute between employer and employee has been put to bed. The employees may decide to go out on strike again at any point as there has been no resolution of the dispute. In order to guard against this continued possibility of strike action and to pursue a final resolution of this dispute, implementing a defensive lockout may be the best course of action for the employer concerned. This defensive lockout will place pressure on the employees to accede to management’s position with regard to the matter at hand.

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