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Article 18/2026

What is the difference between the enforcement and interpretation of collective agreements?

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Interpretation of a collective agreement

  • The supreme court of appeal, in Leboho (see Article 17/2026), with reference to Tshambi (LAC) (see Article 17/2026), indicated the following as to whether or not there is a dispute about the interpretation of a collective agreement: ‘a dispute about the interpretation of a collective agreement requires, at the minimum, a difference of opinion about what a provision of the agreement means’.
  • For the sake of completeness, we repeat what we have stated in previous articles as to what a dispute concerning the application of an agreement means, again with reference to the supreme court of appeal in Leboho, referring to Tshambi (LAC), namely: ‘a dispute about the application of a collective agreement requires, at a minimum, a difference of opinion about whether it can be invoked’.
  • In respect of plant level collective agreements, disputes regarding the interpretation or application of such agreements is to be dealt with in terms of s24 of the LRA – in essence, as stated in previous articles, to be dealt with in terms of the dispute-resolution mechanism of the collective agreement itself and, only by default, by the CCMA.
  • There is no provision in the LRA that grants the CCMA jurisdiction to deal with the enforcement of such plant level collective agreements.
  • There is also no provision in the LRA that prescribes the time period within which disputes regarding the interpretation or application of plant level collective agreements must be referred to the CCMA.
  • There is also no provision in the LRA that grants the CCMA jurisdiction to deal with condonation applications in respect of interpretation or application disputes regarding plant level collective agreements.
  • And what about the interpretation or application of sectoral level collective agreements? The following is a concise summary of the current position:
    • when dealing with the enforcement of sectoral level collective agreements, the arbitrator can determine any dispute concerning the interpretation or application of such collective agreement
    • currently, an arbitrator does not have separate jurisdiction to deal with the interpretation or application of a collective agreement, except when there is a dispute about the enforcement of a sectoral collective agreement ito s33A of the LRA

Enforcement of collective agreements

  • With reference to the supreme court of appeal judgment of Leboho, referring to Tshambi (LAC), and Member of the Executive Council: Police, Roads and Transport (Free State Provincial Government) v Public Service Coordinating Bargaining Council and Others (2022) 43 ILJ 1628 (LAC), a dispute about the enforcement of a collective agreement entails a specific performance claim in circumstances where there are generally no disputes about the interpretation, or application, or validity of such agreement.

Enforcement of plant level collective agreements

  • As already indicated in previous articles, there is no provision in the LRA that grants the CCMA the jurisdiction to deal with such disputes.

Enforcement of sectoral level collective agreements

  • As already indicated in previous articles, such enforcement is to take place in terms of s33A of the LRA. However, currently, the following critical issues need to be considered:
    • there is no time period within which to refer an enforcement dispute of a sectoral level collective agreement to the bargaining council for determination
    • what is required is not merely a notice of set down from the relevant bargaining council to enforce such a collective agreement, but a referral
    • the current structure does not grant a bargaining council the jurisdiction to deal with an application for condonation in respect of such enforcement proceedings
  • In the above regard, it is well worth it to take the following comment of the labour appeal court into account, per paragraph 5 of Queenstown Fuel Distributors CC v J Labuschagne and Others (2000) 21 ILJ 166 (LAC): ‘Without having expressly or implicitly been given the power to do so, a court cannot forgive non-compliance with a statutory enactment’ – this principle is obviously equally applicable to an administrative body, such as the CCMA and bargaining councils.

 

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?