In terms of the current statutory dispensation (inclusive of the Code which came into operation on 4 September 2025), the anticipated statutory changes, as well as the current applicable jurisprudence, the following are some of the short and fundamental truths:
- The primacy of collective agreements is acknowledged – for instance, in terms of item 2 of the Code, the Code does not alter rights and obligations under a collective agreement
- Employer-created policies, practices and procedures simply do not have the same status as collective agreements and do not really feature in the statutory dispensation of fairness – for instance, in terms of the anticipated newly-formulated s188(3) of the LRA, a fair procedure relating to dismissal is always subject to an applicable collective agreement (and definitely not an employer-created policy, practice or procedure)
- The true consequence of an employer-created policy, practice and procedure is that it is not relevant in determining statutory fairness (so to be determined in line with the applicable statutes and Code, as well as applicable collective agreement(s)), but, indeed, forms the very basis of litigation between the parties to a dispute formulated on the breach of the contractual rights and obligations created by these policies, practices and procedures – therefore, entailing, essentially, that the labour court and high court have concurrent jurisdiction to
deal with such unlawful conduct in terms of s77(3), read with s77A(e) of the BCEA
During the workshop, we will, amongst other things, deal with the consequences of the above and formulate a workplace-specific action plan to deal with these consequences and minimise the risks attached to same.
What about plant level collective agreements?
During the workshop, we will deal, amongst other things, with the following issues regulating plant level collective
agreements:
- Parties bound by such collective agreement
- The extension of such collective agreement to non-parties
- The binding period of such collective agreement – the simple question is, what happens at the expiry date of a limited time period plant level collective agreement?
- The misconception that plant level collective agreements, under all circumstances, vary contracts of employment
- The applicable jurisprudence that currently indicates that, if a collective agreement is for an indefinite period, it may be terminated on reasonable notice given in writing
- The limited jurisdiction of the CCMA – currently, such jurisdiction is limited to the interpretation and application of a plant level collective agreement and not the enforcement thereof
- The current lack of jurisdiction of the CCMA to grant condonation in a dispute concerning the interpretation or application of a plant level collective agreement which has been referred to it outside a so-called reasonable period
- who has the locus standi to enforce collective agreements? – finally settled in South African Correctional Services Workers Union obo Kasper v Minister of Justice and Correctional Services and Others (2025) 36 SALLR 55 (LAC)
Sectoral level collective agreements?
In respect of sectoral level agreements, we will, during the workshop, deal with, amongst others, the following
issues:
- The validity requirements of such an agreement
- Parties bound by such an agreement
- The extension to non-parties
- the determination of the majority status in a sector – specifically the registrar’s role in issuing representivity certificates and the obligation on the registrar to hear third parties before issuing such a certificate
- The limited enforcement jurisdiction of the bargaining council in terms of s33A of the LRA
- The apparent lack of jurisdiction of a bargaining council to grant condonation where an enforcement dispute has been referred to it outside a ‘reasonable time period’
- The time period for the enforcement of sectoral level collective agreement
- The status of a compliance order
- Who has the locus standi to enforce collective agreements?
And, whether it is a plant level collective agreement or a sectoral level collective agreement, all practitioners need to know how to interpret these collective agreements.
Employer-employee-specific workplace material to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
Sample employment contracts covering various categories of employees, such as permanent fulltime employees and scheduled employees, appropriate policies, practices and procedures, forms currently used and appropriate collective agreements.
Approach to be adopted during the workshop
The workshop will commence with an analysis of the current approach adopted at your workplace, followed by an audit to determine the level of your non-compliance with the new requirements. Thereafter, a joint action plan will be developed to give effect to the issues identified in the audit – lastly, and most importantly, at the end of the workshop you must be in a position to initiate what is required of you to implement the action plan to ensure the required compliance levels.
