LOCKOUTS, PICKETING RULES AND STRIKE MANAGEMENT.

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Written by Jana Ferreira

Industrial action, strikes, lockouts and picketing are a lawful and regulated part of the employment relationship in South Africa. In the Hairdressing, Cosmetology, Beauty and Skincare Industry, where most workplaces are small establishments operating under the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry (HCSBC), disputes over wages, commission structures and working conditions can and do escalate into formal industrial action.

This article explains, in direct terms, what a lockout is, what picketing rules require, how strikes should be managed, and what an employer is legally required to report and to whom. All of this is governed primarily by the Labour Relations Act 66 of 1995 (“the LRA”), read together with the collective agreements of the HCSBC.

The Precondition: “Protected” Status

Before addressing each topic individually, one point applies to all three: a strike or lockout only enjoys legal protection if a set process has been followed.

Under Section 64 of the LRA, a dispute must first be referred to the CCMA or the relevant bargaining council (the HCSBC, in this industry) for conciliation. If conciliation fails, or 30 days pass without resolution, a certificate of outcome is issued. Only then may either party give the other at least 48 hours’ written notice (7 days if the employer is the State) of an intention to strike or lock out.

If this process is not followed, the action is “unprotected.” Unprotected strikes expose employees to dismissal; unprotected lockouts expose employers to claims for wages and damages. Everything below assumes the parties are operating within, or seeking to reach, protected status.

1. Lockouts

A lockout is defined in Section 213 of the LRA as the exclusion by an employer of employees from the workplace, for the purpose of compelling the employees to accept a demand relating to a matter of mutual interest, such as wages or conditions of employment.

Key features:

A lockout is the employer’s direct counterpart to the employee’s right to strike. Both rights are protected under Section 64.
Lockouts must follow the same conciliation and notice requirements described above to be protected.

There are two recognised forms:

Offensive lockout, initiated by the employer to force acceptance of a demand (for example, a new commission structure).
Defensive lockout, a response to strike action already under way, used to limit operational or financial exposure.

Section 76 of the LRA governs replacement labour, and it has two distinct rules that are often confused:

An employer may never bring in replacement labour to maintain production during a protected strike.
An employer may not use replacement labour to perform the work of locked-out employees, unless the lockout is a defensive lockout, i.e. issued in response to a strike (Section 76(1)(b)). In that specific case, the employer may use temporary labour for the duration of the lockout.

This distinction was confirmed by the Constitutional Court in National Union of Metalworkers of SA v Trenstar (Pty) Ltd [2023] ZACC 11, which held that the moment the underlying strike genuinely ends (rather than merely being suspended), the exception falls away and replacement labour may no longer be used.

For an offensive lockout (one the employer initiates to force acceptance of a demand, with no strike behind it), replacement labour may not be used at all.

Industry example: A group of establishment owners wishes to move from a fixed wage to a commission-only model. Staff reject the proposal. After conciliation fails at the HCSBC and proper notice is given, the owners issue an offensive lockout. Because this lockout is not a response to any strike by the staff, the owners may not hire temporary stylists to keep the establishment running during the lockout.

2. Picketing Rules

Picketing is regulated under Section 69 of the LRA. It permits a registered trade union to organise a peaceful, orderly demonstration in support of a protected strike, or in opposition to a protected lockout.

Key requirements:

Picketing is only lawful when it supports a protected strike or opposes a protected lockout. A picket linked to unprotected action has no legal protection.
Picketing rules should ideally be agreed between the employer and the union in advance. Where no agreement is reached, the CCMA or the bargaining council may determine the rules, including the location of the picket.
Picketing may occur on the employer’s own premises with consent, or in a public place near the premises if the employer does not own or occupy that space.

Rules typically address:

The maximum number of picketers permitted;
The specific area they may occupy (for example, not blocking an establishment’s entrance or a shared pavement);
Noise limits and hours of picketing;
A prohibition on violence, intimidation, defamation or damage to property;
The appointment of picket marshals responsible for order and communication with police or security if needed.

If a picket becomes unlawful, through intimidation of clients, obstruction, or violence, the employer may apply to the Labour Court for an urgent interdict. This does not automatically affect the protected status of the underlying strike itself.

Industry example: Therapists at a spa in the Hairdressing, Cosmetology, Beauty and Skincare Industry embark on a protected strike. Their union organises a picket on the public pavement outside the premises. Provided the picket does not block the entrance, harass clients, or exceed the agreed numbers, it remains lawful even though it is visible to paying customers.

3. Strike Management

Strike management refers to how an employer prepares for, conducts itself during, and resolves a protected or potential strike. It is a practical and administrative discipline, separate from the legal question of whether a strike is protected.

Core elements of sound strike management:

Early engagement with the HCSBC. Most disputes in this sector arise from wage or commission disagreements that the bargaining council is equipped to mediate before matters escalate to notice of strike action.
Accurate records. Employers should maintain clear records of hours worked, wages paid, and commission calculated against the applicable HCSBC wage schedules. Ambiguity in these records is a common root cause of disputes.
A written contingency plan, covering client communication, rescheduling of appointments, and continuity of essential functions (such as chemical safety checks) without resorting to unlawful replacement labour.
No punitive action against protected strikers. Section 67(4) of the LRA directly prohibits an employer from dismissing an employee for participating in a protected strike, or for any conduct in contemplation or furtherance of one. Doing so also constitutes an automatically unfair dismissal under Section 187(1)(a), which can result in reinstatement and back-pay orders, or compensation of up to 24 months’ remuneration, from the Labour Court.
Proportionate response to misconduct during a strike. Section 67(5) makes clear that the protection above does not prevent an employer from fairly dismissing an employee for genuine misconduct committed during a strike (such as violence, intimidation or damage to property), provided this is dealt with as a separate disciplinary matter distinct from the mere fact of participation.
Use of the “no work, no pay” principle. This is codified in Section 67(3) of the LRA: an employer is not obliged to remunerate an employee for services not rendered during a protected strike or lockout. Case law (North West Provincial Legislature v NEHAWU [2023] 8 BLLR 745 (LAC)) confirms the same principle applies to unprotected strikes. Employers must, however, apply any resulting deductions consistently and in line with Section 34 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which restricts unilateral deductions from wages.

4. The Employer’s Responsibility to Report

Employers have specific reporting and notification obligations once industrial action is contemplated or underway. These are not optional administrative formalities; failure to meet them can affect whether an employer’s own response (such as a lockout, or reliance on the “no work, no pay” principle) is legally sound.

What must be reported, and to whom:

Referral of the dispute. Before any strike or lockout, the underlying dispute must be referred to the CCMA or the HCSBC for conciliation. This referral is typically initiated by whichever party raises the dispute, but an employer facing a demand from employees should ensure this step is properly logged with the bargaining council rather than allowing the matter to proceed informally.
Written notice of intended lockout. Where an employer intends to lock out employees, Section 64(1) of the LRA requires written notice to be given to the trade union (or, if there is none, to the employees) at least 48 hours in advance. A copy of this notice should be retained and, where applicable, communicated to the HCSBC as the sector’s bargaining council.
Notice to the bargaining council of picketing arrangements. Where picketing rules are not agreed directly between employer and union, the employer should approach the HCSBC or CCMA to have picketing rules determined, rather than allowing an unregulated picket to proceed.
Reporting under the Basic Conditions of Employment Act 75 of 1997 (BCEA). Section 31 of the BCEA requires every employer to keep a record of each employee’s name, occupation, time worked, remuneration paid, and (where under 18) date of birth. This duty continues throughout a period of industrial action and is not suspended by it; these records may be scrutinised in any subsequent dispute, including one about wage deductions under Section 34 of the same Act.
Health and safety obligations. If picketing or strike action creates a safety risk on or near the premises (for example, obstruction of fire exits, or exposure to chemicals if walkouts occur mid-treatment), the employer retains reporting obligations under the Occupational Health and Safety Act 85 of 1993 and must take reasonable steps to protect employees, clients and picketers alike.
Engagement with the Department of Employment and Labour. Where a dispute is significant or protracted, the Department of Employment and Labour may become involved, particularly through its regional labour centres, and employers should be prepared to demonstrate that the conciliation and notice steps above were properly followed.
Completion of LRA Form 9.2 (Section 205(3)(a)). This is a distinct, specific statutory duty separate from the notice obligations above, and it applies regardless of whether the industrial action was protected or unprotected. Once a strike, lockout or protest action has ended, the employer must keep a record of it and report it formally to the state. The requirements are as follows:
- Who must complete it: The employer, or the relevant employers’ organisation on the employer’s behalf (in this industry, this could include the employer directly or the HCSBC acting in that capacity).
- What must be recorded: Employer details (name, address, industry and sub-sector, in this case, Hairdressing, Cosmetology, Beauty and Skincare Industry); employee details, including total workforce size and ordinary working hours; the nature of the action (strike in the company only, multi-employer strike, lockout, stay-away/protest action, or other); whether a defensive lockout was applied against strikers; whether replacement labour was used; how the action was resolved; the start and end date and time of the action; the number of employees participating and the number affected; total work-hours lost and total wages not paid; details of any trade unions involved and the number of employees per union; whether the action complied procedurally with the LRA; and the reasons for the strike (for example, wages, retrenchments, working conditions, organisational rights, or grievances).
- When it must be submitted: Within seven days of the completion of the strike, lockout or protest action.
- Where it must be sent: To the Director-General, Department of Employment and Labour, Private Bag X117, Pretoria, 0001 (or via the Department’s dedicated strikes e-mail address, as specified on the current version of Form 9.2).
- Multiple workplaces: If the strike, lockout or protest action occurs at more than one workplace of the same employer, for example, an establishment group with several branches in the Hairdressing, Cosmetology, Beauty and Skincare Industry, a separate Form 9.2 must be completed for each affected workplace.

For an establishment owner or beauty group in the Hairdressing, Cosmetology, Beauty and Skincare Industry, this means that even a short, resolved walkout cannot simply be treated as a closed internal matter once staff return to work. The employer carries an independent legal duty to document and report the event to the Department of Employment and Labour within the seven-day window, whether or not the action was protected, and whether it lasted a single afternoon or several days.

Failure to follow these reporting steps does not necessarily criminalise an employer’s conduct, but it materially weakens the employer’s legal position: an unreported or improperly noticed lockout is not protected, an employer relying on it may face claims for wages and damages just as an employee relying on an improperly noticed strike may face fair dismissal, and a failure to submit Form 9.2 is itself a separate statutory non-compliance under Section 205(3)(a) of the LRA.

In conclusion, lockouts, picketing and strikes are not informal tools of pressure; they are structured legal mechanisms governed by clear procedural requirements. For employers and employees in the Hairdressing, Cosmetology, Beauty and Skincare Industry, the HCSBC provides the primary forum for resolving disputes before they escalate, and it should be the first point of contact whenever a wage, commission or working-condition disagreement arises. Employers, in particular, carry specific notice and reporting obligations at each stage, and meeting these is what determines whether their own response to industrial action is legally protected.