The use of replacement labour by employers during strikes and lockout

Under the employment laws of Ghana, the right of employees to embark on a lawful strike has been guaranteed. In furtherance to this protection, the law makes it an outright invalidity if an employer terminates an employment relationship with an employee engaging in a lawful strike.

Similarly, the employment laws of Ghana guarantee the right of employers to lock out employees where the necessary conditions have been satisfied.

In any of the above-mentioned scenarios (i.e., the right of employees to strike and the right of employers to lock out), services rendered by the striking or locked workers are ultimately adversely affected. As a result, the following key players, suffer - the employer, customers, suppliers, and sometimes non-striking/non-lockout workers.

To curb the harsh effect of strikes and lockouts, an employer sometimes engages other persons to discharge the duties performed by the striking or lockout workers. These other persons engaged by the employer to discharge the duties of the striking or lockout workers are known as replacement labor or scab labor.

What this paper seeks to achieve is to first outline the circumstances under which an employer may engage replacement labor (otherwise known as scab labor) during strikes and lockout situations. I will then explore the limitations imposed in situations where replacement labor is resorted to.

General prohibition to using replacement labor during Strike or Lockout

Generally, where employees are engaged in a lawful strike [or where employees have been locked out], the employer is prohibited from employing other persons to perform the works of the striking workers.

The rationale behind this general position of the law is not far-fetched. Where an employer is allowed to use replacement labor where the workers are embarked on a lawful strike, the efficacy of the strike is weakened. The replacement labor is hired to perform the services hitherto performed by employees who are participating in a lawful strike or have been locked out.

Exceptions: Instances where replacement labor may be resorted to

Although one legitimate means by which workers promote and protect their economic interest is by exercising their right to strike, the number of productive hours and days lost to strike is enormous.

To keep the wheel of productivity running during strike actions (or in situations where employees have been lawfully locked out), the law provides instances where an employer may engage replacement laborers to provide the services that the striking (or lockout) workers provide. These are discussed below.

Essential services

The Labour Act of Ghana provides that an employer who is carrying on, or a worker who is engaged in, an essential service, shall not resort to a lockout or strike in connection with or in furtherance of any industrial dispute involving the workers in the essential service.

A fair deduction that can be made from this provision is that, due to the nature and character of such services, where employees who are engaged in the provision of essential services proceed on strike in flagrant violation of the supra provision, an employer is permitted to resort to the use of replacement labor.

Thus, “certain operations within a workplace need to be maintained through labor agreements to prevent the operations from being irreparably damaged”. It is, therefore, permitted under such a circumstance for an employer to resort to replacement labor when his employees are on strike.

This position conforms with the International Labour Organisation (ILO), of which Ghana is a member which provides that employers should not be allowed to use replacement labor during strikes except in the case of “essential services” or where the strike would cause “an acute national emergency”.

Minimum maintenance services

Another instance where an employer may be permitted to use replacement labor is where the worker(s) employed to provide minimum maintenance services, proceed on a lawful strike.

What services constitute “minimum maintenance services” has been defined under the Labour Act. It is worth adding that where there is a dispute about what work amounts to minimum maintenance services, such a dispute shall be heard and determined by the National Labour Commission.

The current author also argues that, based on the tenor of section 170(1) of Act 651, an employer is barred from using replacement labor only where the employee engages in a lawful strike. In simple terms, where employees engage in an unlawful strike either because the substantive and/or procedural requirement of the relevant laws have not been complied with, then the employer is at liberty to use replacement labor.

Defensive lock-out situations

Just as an employee has a right to strike, an employer also has a right to lock out employees in appropriate circumstances.

“Lockout” in simple words, is where an employer excludes employees from the workplace to compel them to accept a demand. It is deducible from the definition that an employer can resort to a lockout if and only if it is in response to an industrial dispute. Thus, if no industrial dispute exists, an employer is barred from resorting to a lockout of its workforce.

Where in response to an industrial dispute an employer exercises his right and lockout employees, can such an employer subsequently engage replacement labour to render the services hitherto provided by the lockout workers? In other words, where there is an industrial dispute, and an employer exercises his right to lock out the employees, can the employer use replacement labor during the subsistence of the lockout? The labor laws of Ghana do not explicitly provide for such situations.

In a comparative common law jurisdiction such as South Africa, the position is quite clear, to wit, an employer may resort to the use of replacement labour to perform the work of an employee, where in response to a strike, the employer has locked out such an employee. Thus, replacement labor is permissible under a defensive lockout situation.

Ancillary matters

In respect of the use of replacement labor, the following legal principles also bear reference:

Time limits within which replacement labor can be used

It must also be noted that where in response to a strike an employer also exercises his right of lockout and thereafter resorts to the use of replacement labor, the employer is permitted to use the replaced labor only for the period of the strike and no further.

This principle was illustrated in the South African case of SA Commercial Catering & Allied Workers Union v Sun International where the court held that once the strike ends on the date which has been given by the striking workers, replacement labor cannot be used thereafter, as it is no longer in response to a strike.

In simple words, if the strike ends, so must the use of replacement labor. (I must be quick to add that this case is cited for persuasive guidance).
Thus, an employer cannot use replace labor indefinitely.

Non-striking/Non-lockout workers (employees)

The law provides that it will amount to unfair termination, where a worker’s employment has been terminated simply because the worker has refused or has evinced an intention not to do a work ordinarily done by a worker who at the time was taking part in a lawful strike (unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment).

Thus, ordinarily, where an employee is not engaged in a lawful strike, an employer cannot use such an employee as a replacement labor to perform works that should ordinarily be done by the striking employee.

Notice

A mandatory procedural requirement where, under an industrial dispute, an employer intends to exercise his right to lockout workers or an employee intends to exercise his right to strike is that written notice of the lockout or strike, as the case may be, must be given to the other party and the National Labour Commission.

Thus, the place of notices must not be lost on an employer or employee who intends to exercise the right to lockout or strike, respectively. A person who exercises his or her statutorily guaranteed right but fails to comply with the laid down procedure for the exercise of such right may have such exercise of right declared by the courts as improper.

Conclusion

The use of replacement labor is recognized under Ghanaian law. An employer may use replacement labor where the services he provides are essential services or minimum maintenance services.

A common course of law that has been practiced in some common law jurisdictions and which I have no reason why should not be followed by the Ghanaian courts is that an employer may also resort to the use of replacement labor in a defensive lockout situation.

It must be emphasized that even though the labor laws of Ghana guarantee the right of every employee to strike, and all employers to recourse to lock-out, such rights are not absolute and must be exercised within the confines of all relevant laws.

The exercise of the right to lockout or embark on a strike must be exercised sparingly, and only in deserving cases. The following dictum in the Seminal Labour Appeal Court (South Africa) case of Technikon South Africa v National Union of Technikon Employees of South Africa is very instructive on this point, and it is hereby quoted ad longum –

“Do not lightly resort to a strike when a dispute has arisen because, in the absence of a strike, the employer may not employ replacement labor even if it institutes a lock-out but, if you strike, the employer will be able to employ replacement labor – with or without a lock-out. The total of all this is that the policy is to encourage parties to disputes to try and reach an agreement on their disputes, and a strike or lock-out should be the last resort when all reasonable attempts to reach agreement have failed.”

The use of replacement labour by an employer must therefore be resorted to ex abundanti cauteli.