Article 21/2024

Up to now, the traditional approach in respect of collective agreements was that the civil courts do not have jurisdiction in respect of the interpretation or application (inclusive of breaches) of collective agreements – e g Aucamp v South African Revenue Services [2014] 2 BLLR 152 (LC) and Ekurhuleni Metropolitan Municipality v South African Municipality Workers Union [2015] 1 BLLR 34 (LAC).  The supreme court of appeal recently, in MEC for Economic Development, Environment and Tourism, Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2695 (SCA), adopted a very different approach that, as is apparent, will in future have an important impact as to the dispute-resolution path selected by a party who alleges non-compliance with a collective agreement.  What does this approach entail?

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  • The supreme court of appeal, with reference to Health and Other Services Personnel Trade Union of SA obo Tshambi v Department of Health, KwaZulu-Natal (2016) 37 ILJ 1839 (LAC), indicated that:
    • a dispute about the interpretation of a collective agreement requires, at a minimum, a difference of opinion about a provision in the agreement
    • a dispute about the application of a collective agreement requires, at the minimum, a difference of opinion as to whether it can be invoked
    • once application is proven and there is no dispute about the interpretation, a party can enforce such an agreement in the civil courts

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).