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
