Workers are members of the public who happen to work for the government to sustain their lives and those of their families, and they deserve to be remunerated for a living like all other workers.
(Delwyn Verasamy/M&G)
Last week the constitutional court clarified the rules regarding the use of scab labour — a source of instability in South Africa’s labour regime — during a lockout.
Other than attracting some criticism from those who believe the country’s labour laws are far too rigid, the apex court’s judgment mostly flew under the radar. But its intervention is crucial insofar as it spells out how far the right to use replacement labour extends — and at what point it effectively collapses constructive bargaining.
The case relates to a labour dispute between the National Union of Metalworkers of South Africa (Numsa) and logistics company Trenstar, which ended in workers going on strike for several weeks in 2020. After four weeks of striking, Numsa informed Trenstar that its members had decided to suspend their industrial action and return to work.
But three days later, Trenstar responded by issuing a lockout notice, preventing employees from returning to work and receiving pay. Trenstar also stated its intention to use scab labour to perform the work of the locked-out workers.
Section 76(1)(b) of the Labour Relations Act (LRA) states that an employer may not use scab labour to replace workers during a lockout, “unless the lockout is in response to a strike”. Trenstar contended that, although Numsa members suspended their industrial action, the strike had not ended until workers accepted its lockout demands.
Trenstar also argued that the case was moot, because the questions it raised had no bearing on industrial relations more broadly. The labour appeal court has twice declined to address conflicting interpretations of the section on the basis of mootness.
But the constitutional court pointed out that competing interpretations of section 76 have a bearing on the right to strike — which is protected by the Constitution. This is because the extent of an employer’s right to use scab labour when a lock-out “is in response to a strike” stands to affect whether unions and workers decide to strike in the first place.
Strike action may become decidedly less attractive and effective, the court noted.
The court preferred an interpretation of the section that affects least on the right to strike. Thus, according to the court’s ruling, when a strike ends, an employer’s right to employ scab labour during a lockout also ends. A strike is characterised by the withdrawal of labour.
The long battle to win this right recognised that withdrawing labour was an important weapon for workers struggling to improve their conditions. Scab labour, which allows businesses to keep operating and making a profit, infringes on that right by trivialising it. In this sense, the use of scab labour is an employer’s ultimate weapon.
The use of scab labour has recently garnered renewed scrutiny. Last year, Tory MPs in the United Kingdom approved a plan to allow labour broker workers to replace striking workers amid a wave of industrial action in the public sector.
When the law was changed last July, then business minister Kwasi Kwarteng called the ban on scab labour “burdensome, 1970s-style restrictions”. Repealing the ban was good news for society and the country’s economy.
“For too long unions have been able to hold the country to ransom with the threat of industrial action but this vital reform means any future strikes will cause less disruption and allow hardworking people to continue with their day to day lives,” Kwarteng said.
The UK’s left said the move was akin to a scab charter.
Canada has gone the other way, with legislators now pushing for a loophole-free ban on scab labour. Seamus O’Regan, Canada’s labour minister, reportedly said last year that the use of scab labour “pits workers against each other. It’s undignified and it’s dangerous.”
Importantly, when the New Democratic Party introduced the 2023 Anti-Scab Act in Ontario’s parliament last month, member of the provincial parliament France Gélinas gave a very different view to Kwarteng, who extolled the virtues of replacement labour. “Scab labour hurts people, families and communities. The use of scab labour leads to longer strikes and lockout,” she said. Legislators in Ontario have been pushing for anti-scab laws for close to 30 years.
In South Africa, the disruptive nature of using scab labour has long been a subject of debate.
In 2006, after strike action gripped the Western Cape, trade union federation Cosatu made a statement to parliament blaming scab labour for stoking tensions among workers. This must be stopped, Cosatu said, “as the threat to people’s jobs, which is the means through which they feed their families, is a highly emotive issue”.
“Scabs and strike breaking labour brokers are a scourge in society and undermine orderly industrial relations. The LRA … provides for the use of industrial action to be the mechanism through which the parties can compel each other to concede to their demands. The way in which scab labour undermines the bargaining process forces further hostility between the parties and complicates settlements.”
Despite a view that the LRA favours workers’ rights, it too has been called a scab charter, according to veteran labour journalist Terry Bell. This is precisely because of the use of scab labour during strike action and the loophole that exists in section 76(1)(b) — which the constitutional court has finally clarified.
When Bell wrote about section 76(1)(b), back in 2014, the National Employers’ Association of South Africa (Neasa) had declared a lockout in response to the strike by Numsa workers. Bell said Neasa’s decision stood to “pit worker against worker”.
“It will raise the temperature, dangerously, I think,” he added. Until then, Bell noted, little thought had been given to the section.
Last week’s constitutional court ruling affirmed that leaving the section open to interpretation creates a loophole that infringes on the right to strike, further blunting their ultimate weapon — which is under the heel of scab labour in any case.
But, contrary to what some may believe, South Africa’s labour regime ought to be even more restrictive insofar as replacement labour is concerned. Because in a country that upholds the right to strike, there is no place for scabs.