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ARTICLE 11

In the scenario where a collective agreement of a specific bargaining council determines actual minimum wages and/or bonuses, are the employees entitled to bring an application in terms of s77(3) of the Basic Conditions of Employment Act, 75 of 1997, when an employer fails to comply with the said terms and/or conditions contained in such collective agreement?

The aforesaid question, in essence, focuses on whether or not an employee is entitled to regard a breach of a collective agreement as a contractual breach and to enforce such breach in terms of s77(3) of the Basic Conditions of Employment Act, 75 of 1997, as amended?

This article sets out the approach adopted by the labour and labour appeal courts to the aforesaid issue.

CLAIMS FOR PAYMENT OF MINIMUM WAGES AND BONUSES

Rukwaya and Others v Kitchen Bar Restaurant[1]

The labour court adopted the following approach: 

1.       in the scenario where a collective agreement of a specific bargaining council determines actual minimum wages and/or bonuses, the employees subject to such collective agreement are not entitled to bring an application in terms of s77(3) of the BCEA where an employer’s fails to comply with the said terms and/or conditions contained in the collective agreement – the labour court thus, with approval, followed the approach adopted by the labour appeal court in Ekurhuleni Metropolitan Municipality v South African Municipality Workers Union;[2] 

2.       in the above scenario, the correct approach to be adopted by such employees should entail:

(a)      the utilisation of the dispute-resolution mechanism contained in the said collective agreement; and 

(b)      the utilisation of s33A of the LRA; and

3.       in determining its jurisdiction to deal with the aforesaid issue, the labour court held that it must firstly determine the true nature of the dispute before it[3] and, in this regard, with approval, referred to Coin Security Group (Pty) Ltd v Adams and 37 Others[4] where it was held that:

‘It is the court’s duty to ascertain the true or real issue in dispute … In conducting that enquiry a court looks at the substance of the dispute and not at the form in which it is presented … The characterization of a dispute by a party is not necessarily conclusive…’

Subsequently, the labour appeal court confirmed the approach of the labour court in Rukwaya and Others v Kitchen Bar Restaurant.[5]


[1]          (2016) 37 ILJ 1466 (LC); (2016) 27 SALLR 124 (LC)

[2]          (2015) 36 ILJ 624 (LAC)

[3]          National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC); CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC)

[4]          (2000) 21 ILJ 924 (LAC) at paragraph [15]

[5]          (2018) 39 ILJ 180 (LAC)

© SALLR 2018