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Article 19/2026

How are both plant level, as well as sectoral level, collective agreements to be interpreted?

This is an important issue, because collective agreements require a different approach when compared to agreements that are not collective agreements.

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Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (Endumeni Municipality)

  • Consideration must be given to:
    • the language used in the light of the ordinary rules of grammar and syntax
    • the context in which the provision that needs interpretation appears
    • the apparent purpose to which the provision is directed
    • the material known to those responsible for the production of the collective agreement
  • If more than one meaning is possible, each possibility must be weighed in the light of the above factors.
  • The process is objective, not subjective.
  • A sensible meaning is preferred to one that leads to impractical, unbusinesslike or oppressive consequences, or that will stultify (render ineffective, or useless) the broader operation of the legislation or contract under consideration.

SAMWU v SA Local Government Bargaining Council and Others (2012) JOL 28284 (LAC) (SAMWU)

  • The labour appeal court approved and applied the principles set out in North East Cape Forest v SA Agricultural Plantation and Allied Workers Union and Others (1997) 18 ILJ 971 (LAC); [1997] 6 BLLR 711 (LAC), to the following effect:
    • a collective agreement is unlike other ordinary contracts
    • the primary objects of the LRA are better served by an approach that is practical to the interpretation and application of such agreements
    • this approach is better suited to promote the ‘effective, fair and speedy resolution of labour disputes’

Herbert v Head of Education: Western Cape Education Department and Others (2022) 43 ILJ 1618 (LAC) (Herbert)

  • The labour appeal court, in Herbert, had the following to say as to the application of, firstly, the Endumeni Municipality principles and, secondly, the principles applicable specifically to collective agreements:
    • the constitutional court, in University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC), made it clear that the approach adopted in Endumeni ‘updated the previous approach’ that context should only be resorted to if there was an ambiguity or lack of clarity in the text
    • in the cases subsequent to Endumeni, the constitutional court noted that the supreme court of appeal had specifically pointed out that context and purpose must be taken into account as a matter of course, right up-front in the interpretation exercise, irrespective of whether or not the words used in the contract (and other instruments) are ambiguous or not clear
    • words and sentences are understood as to how they fit into the larger structure of the agreement, its context and purpose
  • In Herbert, the arbitrator was required to have regard to, inter alia:
    • the aim and purpose of the collective agreement
    • the words and language used in the collective agreement
    • the ordinary rules of grammar and syntax
    • the context in which the disputed terms appear in the agreement

Concluding remarks

  • From the above, the following suggested approach can be extracted:
    • in line with Endumeni Municipality, the context, syntax and ordinary rules of grammar must be taken into account to determine the meaning of the relevant words and sentences
    • such approach must be adopted upfront when the interpretation exercise commences, irrespective as to whether or not such words and sentences are ambiguous or lack clarity
    • obviously, all the other elements identified in Endumeni Municipality, such as the purpose of the words and the sentences and the material known to those responsible for its production must also be taken into account
    • in the end, a sensible meaning is preferred to one that leads to impractical, unbusinesslike or oppressive consequences, or will render the broad operation of the collective agreement ineffective or useless
    • what has been stated above is specifically, and in all circumstances, subject to adopting an approach to promote the ‘effective, fair and speedy resolution of labour disputes’
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)?