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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.

 

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)?