Please note that this pertains to South African Labour Relations and Best Practice requirements.
So what is a ‘lockout’ actually? A ‘lockout’ is when the employer, locks the striking employees, out of the office/warehouse/factory/store etc. There are two types of ‘Lock Out’ – a ‘defensive’ and an ‘offensive’ ‘lock out’. An employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out,
In terms of the Labour Relations Act of 1995, Section 64 (which is the section that deals specifically with “Lock outs”), there are several reasons when the ‘lock out’ can be a really useful tool if there is a strike.
The union has to give ‘Notice of Intention to Strike’ and when they do this you are entitled to issue a “Lock Out Notice’ which means once the strike begins – so does the ‘lock out.’
Let’s have a look at the benefits of a ‘lock out’.
Well firstly a benefit would be that the employer does not have to pay the employee for the duration of the strike.
Secondly, the union officials and their shop stewards very often do not advise the employees of the employers right to ‘lock out’ and often the employees only find this out after the fact, which places them on the ‘back foot’ so to speak. The Lock Out notice must be placed on the Company Notice board so that all employees are aware of what action the employer is going to take.
Giving a notice of lock out changes the ‘power play’ quite drastically. The striking employees are no longer in control of when they come back to work.
A defensive ‘lock out’ must always be in response to a strike, because the employees can not return to work until such time as they have dropped their demands.
Be careful though, the opposite of a ‘defensive’ ‘lock out’ is an ‘offensive’ ‘lock out’ and that occurs if you declare a ‘lock out’ that is not in response to a strike. This would then mean that your employees would have to accept the employers demand to come back to work. If you declare an ‘offensive’ ‘lock out’, you will not be allowed to use any replacement labour and this is in terms of the Labour Relations Act of 1995 section 75(1)(b).
An ‘offensive’ ‘lock out’ lets the striking employees and the union officials know, just how serious you are about the offer that you have put on the table. An ‘offensive’ ‘lock out’ should only be used together with negotiations on an ‘ongoing’ basis and it is highly likely that this will then result in a settlement which should bring the strike to an end.
So make sure that you know and understand exactly which ‘lock out’ you are declaring and why. Declaring the wrong one could cause you a lot of wasted time and energy, not to mention costs incurred.
The bottom line of course is that prevention is always better than cure and although it costs the employer ‘an arm and a leg’, the reality of the situation is that it also costs the employee, usually a lot more than what they bargained for.
So no matter how deadlocked talks appear to be, it is in your own best interests to continue to talk to union officials and shop stewards. They too, more often than not, would also like to see a settlement sooner rather than later.
Next time we will have a look at Unprotected or prohibited strikes.