National Association of South African Workers obo Members v Kings Hire CC

A dispute arose between NASAW and its members (employees) and the respondent (Kings Hire CC) regarding payment of a 13th cheque. The dispute was referred to the CCMA for conciliation on 3 July 2019 but remained unresolved. A certificate of failure to settle was issued on 6 August 2019. NASAW gave strike notice on 29 August 2019 for strike action commencing 2 September 2019. The respondent obtained an interim High Court order on 30 August 2019 (unrelated to preventing the strike itself) which prompted NASAW to suspend the proposed strike on 31 August 2019 pending the High Court case return date. On 2 September 2019, employees were prevented from working - the respondent stated this was a lock-out. On 3 September 2019, the respondent gave formal lock-out notice stating the lock-out would commence on 5 September 2019. Employees were not paid salaries for September or October 2019. Only on 18 November 2019 did NASAW bring an urgent application seeking to interdict the lock-out as unlawful.

• Whether the application satisfied the requirements of urgency under Rule 8 of the Labour Court Rules
• Whether the applicants established a clear right, injury and absence of alternative remedy for interdict relief
• Whether an employer is entitled to implement a lock-out when employees have suspended strike action but the underlying dispute remains unresolved
• Whether the lock-out notice complied with the requirements of section 64(1)(c) of the Labour Relations Act
• Whether the lock-out was lawful despite being implemented on 2 September before the formal notice period expired on 5 September

The application was dismissed. No order as to costs was made, as the court found the parties had an ongoing relationship, the applicants were not unreasonable in pursuing the matter, and it raised novel legal issues.

An employer is entitled to implement a lawful lock-out in response to an unresolved mutual interest dispute, even where employees have suspended strike action, provided: (1) there exists an unresolved demand/dispute that was unsuccessfully conciliated; (2) proper notice under section 64(1)(c) of the LRA is given (48 hours to the trade union identifying the issue in dispute); and (3) the underlying dispute remains unresolved. The purpose of a lock-out is to compel employees to resolve the impasse in collective bargaining regarding the demand, and it operates as the employer's counterpart to the employees' right to strike. A lock-out notice given after employees have suspended a strike but before the underlying dispute is resolved complies with section 64(1)(c). For urgent applications seeking final relief against lock-outs, applicants must satisfy strict urgency requirements including bringing the application at the earliest opportunity without delay, and any failure to do so will result in dismissal for want of urgency regardless of the merits.

The court observed that the High Court should not have entertained the employer's application for an interdict (case 65617/2019) as it likely fell within the Labour Court's jurisdiction. The court noted it was unclear why the respondent approached the High Court rather than the Labour Court. The court also commented that it was "a great pity" the application was not brought sooner, as substantial delays caused by the applicants' inaction harmed their case. The court expressed that merely suspending a strike or holding it "in abeyance" is insufficient to secure the uplifting of a lawful lock-out - the underlying dispute must actually be resolved or the demand abandoned. The court emphasized that courts should be reluctant to intervene in ongoing collective bargaining processes where the issue in dispute remains unresolved, as such matters should be resolved through the collective bargaining process itself (i.e., "he who folds first, loses"). Regarding costs, the court noted that in labour matters the rule that costs follow the result does not apply, and costs orders should only be made where fairness and equity dictate.

This case clarifies important principles regarding lock-outs in South African labour law: (1) An employer may lawfully lock out employees even when a strike has been suspended, provided the underlying mutual interest dispute remains unresolved; (2) Strike and lock-out notices serve the same purpose in collective bargaining - to resolve disputes about demands that have reached an impasse; (3) The lock-out and strike can exist concurrently or sequentially, and a lock-out need not await commencement of an actual strike; (4) Section 64(1)(c) notice requirements are satisfied by 48 hours' written notice identifying the issue in dispute; (5) Courts should be reluctant to intervene in ongoing collective bargaining processes where the parties have recourse to industrial action; (6) Applications for final interdicts regarding lock-outs must satisfy strict urgency requirements, particularly where there are unexplained delays; (7) Employees locked out lawfully are not entitled to remuneration until the underlying dispute is resolved or their demand is abandoned. The case reinforces the balance of power in collective bargaining and the limited role of courts in such disputes.