Skip to main content

Article 17/2026

What is the difference between disputes regarding the validity of a collective agreement when so pitched against disputes regarding either the enforcement or application of collective agreements?

_____________________________________

  • In the most basic terms, a dispute about the validity of a collective agreement is a dispute where the collective agreement is attacked and it is considered a nullity.
  • On the other hand, a dispute about the enforcement of a collective agreement, in short, boils down to the acceptance of the validity of the agreement and the relief sought is specific performance.
  • And, so, what is a dispute about the application of a collective agreement? The supreme court of appeal, in MEC for Economic Development, Environment and Tourism: Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2694 (SCA) (Leboho), with reference to Hospersa obo Tshambi v Department of Health, KZN [2016] 7 BLLR 649 (LAC) (Tshambi), stated the following: ‘A dispute about the application of a collective agreement requires, at a minimum, a difference of opinion about whether it can be invoked.’
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?