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Article 23/2026

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?

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SAMWU v City of Tshwane and Another (2014) 35 ILJ 241 (LC) (SAMWU)

  • In this matter, the plant level collective agreement, that had a specific expiry date, contained a shift system.
  • The labour court (at para [18]) found that the shift system survived the cancellation of the agreement seemingly on the basis that the shift system became part of the employees’ employment contracts.
  • The approach of the labour court in casu is based on the principle that the expiry of a collective agreement does not have the effect of restoring employment conditions to the conditions that existed prior to the conclusion of such agreement.

Food for thought

  • The aforesaid fairness principle approach does not find support in s23 of the LRA (nor, for that matter, in any other provisions of the LRA).
  • The aforesaid fairness principle approach runs contrary to s23(2) of the LRA – as set out in previous articles.
  • The aforesaid approach was rejected subsequently by the labour court, in FAWU obo Members v Imperial Logistics (Pty) Ltd and Others (JR62/20) [2024] ZALCJHB 360 (3 September 2024) (FAWU).

Imperial Cargo Solutions v SATAWU (2017) 38 ILJ 2479 (LAC) (Imperial Cargo Solutions)

  • The labour appeal court, in this matter, appeared to reach a different conclusion than the one reached by the labour court in SAMWU.
  • The employer argued that the employees’ refusal to execute ancillary tasks (as agreed in a collective agreement with a specific termination date) constituted strike action.
  • The labour appeal court held that the obligation created in the agreement fell away upon its expiry date. The reasoning of the court is, however, far from clear.
  • The labour appeal court stated that the matter was distinguishable from SAMWU but did not state why this was so.
  • The labour appeal court, however, expressly stated that it did not find the approach adopted in SAMWU to be wrong.

Food for thought

  • To repeat, the reasoning of the labour appeal court is far from clear.
  • The labour appeal court did not engage with the wording of s23(2) and s23(3) of the LRA.
  • The labour court, in Imperial Logistics, referred to this judgment of the labour appeal court, followed the same approach, but correctly relied upon the correct interpretation of s23(2) of the LRA.

FAWU obo Members v Imperial Logistics (Pty) Ltd and Others (JR62/20) [2024] ZALCJHB 360 (3 September 2024) (FAWU)

  • The facts of this matter are briefly as follows:
    • over the period 2009 to 2019, a number of collective agreements were concluded annually between the union and the company regulating wages and other matters of mutual interest
    • the issues, which were negotiated, varied from year to year
    • each collective agreement is different and contains different issues
    • some issues, such as wages and housing allowances, were negotiated annually because, by their nature, these payments are subject to inflation and, therefore, need to be negotiated on an annual basis
    • there are certain other issues, however, which did not need to be negotiated annually and severance pay was one of them
    • the 2009 collective agreement had a specific starting date and a specific end date – ‘…applicable from 01-07-2009 until 30-06-2010…’
    • likewise, the 2012 collective agreement had a specific starting date and end date – ‘…applicable from 01-07-2012 until 30-06-2013…’
    • these are the only two plant level collective agreements that dealt with severance pay, indicating that same should be two weeks for each completed year of service
    • when the company embarked on a large-scale retrenchment exercise, it offered one week for each completed year of service and the union indicated that, in terms of the aforesaid two collective agreements it was entitled to two weeks for each completed year of service
    • the union subsequently referred a dispute ito s24 of the LRA to the CCMA
  • In the arbitration award of the commissioner, she stated, inter alia, the following:
    • ‘There was no need to tender any evidence as no ambiguity was identified in the collective agreements.’
    • the commissioner dispensed with oral evidence and determined the dispute on the basis of only the documentary evidence presented, namely, the aforesaid two relevant collective agreements
    • in arriving at her conclusion, the commissioner stated the following: ‘The proper interpretation of the clause that reads as follows: “Save where this agreement varies a previous practice or previous agreement, any other practice or agreements remain unchanged and in force” does not support the contention that severance pay in an amount equal to two weeks’ remuneration for each completed year of service must be paid. Neither does the clause in the wage agreement in place for 1 July 2017 until 30 June 2018, stating that all current/valid substantive agreements remain in force, support such an interpretation, due to the limited duration of each collective agreement I was called upon to interpret.’

Food for thought

  • Correctly, it is suggested, the arbitrator held that she was bound by s23(2) of the LRA indicating that the collective agreement is only binding for the whole period of the collective agreement and thus, being of a limited duration, did not exist beyond the expiry date of the last collective agreement (namely, the 2012 collective agreement).
  • Obviously, with reference to what has been stated in previous articles as to how collective agreements should be interpreted (Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)), the commissioner wrongly held that no evidence was to be led regarding the collective agreement as no ambiguity was identified – the point is: irrespective as to whether or not an ambiguity existed, she was duty bound to apply the above approach when interpreting the said collective agreement and should have called for evidence to be led.

And, in the labour court?

  • The labour court, firstly, dealt with the appropriate case law, including SAMWU and Imperial Cargo Solutions, already referred to.
  • Mafa-Chali AJ found, primarily, that there was an expiry date in each relevant collective agreement in casu, which, when interpreted, could not have excluded severance pay provisions, without any express provision in this regard.
  • With reference to the content of s23(2) of the LRA, it was found to mean that, once a collective agreement reached its expiry date, it expires and is no longer of any force and effect.
  • The aforementioned two collective agreements in casu, which granted severance pay equal to two weeks’ wages for each completed year of service, had thus expired and no longer entitled the employees to such a benefit.
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?

June 22, 2026

From the previous articles we’ve compiled this year, you would have gleaned, by now, that it is our viewpoint that s24 of the LRA only governs disputes about the interpretation or application of plant level collective agreements – and does not cover enforcement of such plant level collective agreements. We have also told you that, should the amendment to s23 of the LRA go through, then the jurisdiction of the CCMA will be extended to the enforcement of such plant level collective agreements.
Also, in previous articles compiled by us, we have expressed the view that there is no period prescribing the time within which an interpretation or application dispute of a plant level collective agreement should be referred to the CCMA – therefore, a reasonable time period, based on s191(1) of the LRA, is applicable. From previous articles compiled by us, you will also have gleaned our viewpoint that, currently, there is no provision in the LRA granting the CCMA jurisdiction dealing with condonation applications brought in respect of interpretation or application disputes relating to plant level collective agreements, where such disputes have been referred to the CCMA outside of a reasonable time period.
On the other hand, this article deals with sectoral level collective agreements and attempts to provide some insight into the following burning questions:
• what is the status of a compliance order?
• what is the process to be followed when the enforcement of sectoral collective agreements is sought by bargaining councils?
• what is the time period applicable within which such enforcement is to be sought of sectoral collective agreements by bargaining councils?
• what is the time period to be applied when the LRA is silent?
• on what basis can condonation be granted for the late institution of a claim, or the late issuance of a compliance order?