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Article 16/2026

The previous article dealt with plant level collective agreements, in essence, to be considered in terms of s23 and 24 of the LRA.

On the other hand, sectoral level collective agreements are to be dealt with in terms of s31, read with s32 and s33A, of the LRA.

In respect of such sectoral level collective agreements, the following questions are currently of relevance:

  • who is bound by a sectoral level collective agreement?
  • what is the difference between a plant level collective agreement and a sectoral level collective agreement?
  • how are collective agreements concluded in a bargaining council extended?
  • how are sectoral collective agreements enforced?

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Who is bound by a sectoral level collective agreement?

  • In terms of s31 of the LRA, and subject to s32 of the LRA (dealing with the extension of sectoral level collective agreements) and the constitution of a bargaining council, a sectoral level collective agreement binds all the parties and the members of such parties as indicated in the previous article in terms of s23(1) of the LRA with the following proviso, namely, that the parties to the collective agreement must also be parties to the bargaining council.
  • Apart from the above qualification, the content of s23(1) of the LRA, so applicable to plant level collective agreements, corresponds with the content of s31(a), s31(b) and s31(c) of the LRA and so specifically applicable to sectoral level collective agreements.

What is the difference between plant level collective agreements and sectoral level collective agreements?

  • The labour court, in City of Cape Town v Independent Municipal and Allied Workers Union and Others (2015) 26 SALLR 37 (LC); [2015] 12 BLLR 1197 (LC); (2016) 36 ILJ 147 (LC), in paragraph 15, stated, amongst others, the following:
    • a further distinction between bargaining council collective agreements and plant level collective agreements is that (obviously apart from what has already been stated above in this article), unlike with the latter, the former is clothed with statutory enforcement mechanisms, ito s33A
    • a bargaining council collective agreement is a collective agreement of a special type which cannot ‘morph’ into a s23 plant level collective agreement when the agreement in question is in non-compliance with the bargaining council’s constitution
    • in the above scenario, the parties to such agreement would have no power to enforce the sectoral level collective agreement across a sector invalidating the inherent purpose of the conclusion of a collective agreement in a bargaining council

How are collective agreements concluded at bargaining councils extended?

Scenario 1: extension dependent on the majority status at the bargaining council

  • a bargaining council may ask the Minister, in writing, to extend a collective agreement concluded in the bargaining council to any non-parties to the collective agreement that are within the registered scope of the bargaining council and are identified in the request if, at a meeting of the bargaining council:
    • one or more registered trade unions, whose members constitute the majority of members of the trade unions which are party to the bargaining council, vote in favour of the extension and
    • one or more registered employers’ organisations, whose members employ the majority of employees employed by members of the employers’ organisations that are a party to the council, vote in favour of the extension
  • The Minister must extend the collective agreement, as requested, by publishing a note in the Government Gazette, within 60 days of receiving the request, declaring that, from a specific date and for a specific period, the collective agreement will be binding on non-parties specified in the notice.
  • There are a number of conditions upon which a collective agreement may not be extended in terms of s32(2) of the LRA and these include that, unless the Minister is satisfied of, amongst others, the following, such extension may not take place:
    • the registrar has determined that the majority of all employees who, upon extension of the collective agreement, will fall within the scope of the agreement, are members of the trade unions that are parties to the bargaining council, or
    • the registrar has determined that the members of the employers’ organisations, that are parties to the bargaining council, will, upon the extension of the collective agreement, be found to employ the majority of all employees who fall within the scope of the collective agreement

Scenario 2: extension dependent on the registrar determining that the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council

  • in terms of s32(2A) of the LRA, if the registrar determines that the parties to the bargaining council are so sufficiently representative, the Minister must publish the notice of extension within 90 days of the request
  • in the above scenario, two questions are of importance, namely:
    • what is the registrar’s role in issuing representativity certificates? and furthermore,
    • does the registrar have to hear third parties before issuing such certificate?
  • in the above regard, the labour court, in Innovative Staffing Solutions (Pty) Ltd v Minister of Employment and Labour (2025) 46 ILJ 2452 (LC) (Innovative Staffing), stated the following, at para [22]:

‘If the determination by the registrar constitutes administrative action, and the grounds of review applicable under the Promotion of Administrative Justice Act (PAJA)                       are available to the applicant, there is no need to decide the application under the principle of legality.’

  • the labour court, in Innovative Staffing furthermore had the following to say in the above regard:
    • when determining the representativity status, there is no need for the registrar to have regard to public databases and independent sources before making a determination
    • in this regard, the legislature saw it fit not to prescribe to the registrar how to make such a determination
    • the purpose of the 2018 amendments was to make the determination of representativeness, in the context of the extension of bargaining council agreements, less onerous
    • the LRA does not require that the registrar must grant the right to representation to anyone before making such a determination
    • neither does the LRA require a consultation process before the registrar makes such a determination
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?