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Article 24/2026

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?

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  • Section 23(4) of the LRA reads as follows: ‘Unless the collective agreement provides otherwise, any party to a collective agreement, that is concluded for an indefinite period, may terminate the agreement by giving reasonable notice, in writing, to the other parties.’
  • In Public Servants Association of South Africa and Others v CCMA and Others [2024] 10 BLLR 1087 (LC); (2024) 45 ILJ 2795 (LC) (PSA), the labour court had the opportunity to deal with such a plant level collective agreement concluded for an indefinite period and where the content of such collective agreement did not indicate how it may be terminated – i e termination in terms of s23(4) of the LRA was permitted.
  • Briefly, the facts of this matter are as follows:
    • during 2006, the Public Servants Association of South Africa (PSA), the Receiver of Revenue (SARS) and the National Education, Health and Allied Workers’ Union (NEHAWU) concluded a collective agreement, which provided that certain grades of qualifying field workers employed by SARS, who travelled extensively in the course of performing their duties, would be paid a field worker’s allowance (in essence, a travelling allowance)
    • such allowance would be paid on a monthly basis to compensate the employees so eligible for official business travel, up to 500kms for the month
    • on 4 April 2025, SARS gave the PSA and NEHAWU three months’ notice of termination of the said plant level collective agreement, which termination was to become effective on 4 July 2015
    • PSA lodged an unfair labour practice dispute with the CCMA – the commissioner found that no unfair labour practice was committed
  • What did the arbitrator find?
    • upon cancellation of the collective agreement, the allowance fell away
    • contracts of employment were only varied whilst the collective agreement remained in place
    • on review, PSA argued that the arbitrator committed a material error of law, seeing that the plant level collective agreement entailed the variation of the individual contracts of employment and, thus, the outcome of the arbitration award is a breach of s23(3) of the LRA – it was argued that de facto the contracts of employment were already amended
  • The labour court in casu adopted the following approach:
    • where a collective agreement is cancelled by one of the parties to such an agreement, seeing that the agreement is for an indefinite period, this has the effect that the terms of the cancelled/terminated collective agreement do not live on through the contracts of employment into which they were incorporated
    • this position gives full effect to the provisions of s23(4) of the LRA (as well as section 23(3) of the LRA), and accordingly promotes collective bargaining.

Food for thought

  • So, where a plant level collective agreement is concluded for an indefinite period and such collective agreement does not provide otherwise, it may be terminated by any of the parties giving reasonable notice in writing to the other parties.
  • Obviously, if the plant level collective agreement for an indefinite time period provides otherwise, then that is the approach to be adopted if it is to be terminated.
  • Under the circumstances where there is no provision in the plant level collective agreement regulating the indefinite time period and termination takes place in terms of section 23(4) of the LRA, then:
    • any party may terminate the said collective agreement by giving reasonable notice in writing to the other party
    • if during the currency of such collective agreement, it varied a contract of employment between an employer and employee, then, on termination of such collective agreement, such amendment of the employment contracts also falls away.
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)?