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Article 30/2025

The purpose of this article is to highlight some of the principles underlying the legal position that the admission of trade union members outside such trade union’s scope is ultra vires and invalid.

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The principles extracted from National Union of Metalworkers of South Africa v Lufil Packaging (2020) 31 SALLR 138 (CC) (Lufil) and Afgri Animal Feeds v National Union of Metalworkers of South Africa (2024) 35 SALLR 169 (CC) (Afgri) are as follows:

  • in terms of s4(1)(b) of the LRA, every employee has the right to join a trade union, subject to its constitution
  • a trade union’s registered scope is defined in its constitution
  • its constitution, together with its rules and regulations, establish a contract between the individual members who are bound in a voluntary association
  • a trade union cannot operate outside its registered scope
  • any act that deviates from, or is contrary to, a trade union’s constitution is thus ultra vires and null and void
  • Lufil specifically dealt with the scenario that a trade union may not admit as members employees not covered by its constitution, for the purposes of exercising organisational rights
  • Afgri specifically dealt with the scenario that a trade union may not represent employees who are not permitted to be members of such trade union in terms of its constitution – bringing into focus s161(1)(c), s200(1)(b) and s200(1)(c) of the LRA
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?

July 6, 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?