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Article 37/2024

LabourEdge

Section 76(1) of the LRA reads as follows:

  • An employer may not take into employment any person –
    • to continue or maintain production during a protected strike if the whole or a part of the employer’s service has been designated a maintenance service; or
    • for the purpose of performing the work of an employee who is locked out, unless the lock-out is in response to a strike.’

What approach did the constitutional court recently adopt, in NUMSA v Trenstar (Pty) Ltd (2023) 44 ILJ 1189 (CC); [2023] 7 BLLR 609 (CC); (2023) 34 SALLR 67 (CC), to determine whether an employer can rely on s76(1)(b) of the LRA to employ replacement labour when a strike has been suspended?

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The constitutional court, in the Trenstar judgment, adopted the following approach to such issue: 

  • two fundamental requirements must be met for action on the part of the trade union and the employees to constitute a strike, namely, there must be the concerted (collective/coordinated) withholding of labour (entailing the refusal to work/retardation/obstruction of work) and such concerted withholding of labour must be for a specific purpose
  • the implications of both the aforesaid requirements having to be present before conduct constitutes strike action entails, at the most fundamental level, that, if one of these requirements is absent, there cannot be a strike
  • the LRA does not distinguish between termination of strikes and suspension of strikes – a strike ends when there is no longer a concerted withdrawal of labour, even if a demand still exists, as is the case with the so-called suspension of a strike
  • when a strike is suspended, the trade union and its members have not given up the demand, but there is no concerted withdrawal of labour – the consequences being that there is still an unconditional right to strike (seeing that the dispute has successfully been processed by means of s64 and s65 of the LRA)
  • once the conduct of the trade union and the employees no longer constitutes a strike, as set out above, the employer is entitled to implement a lockout, but the lockout is not in response to a strike and, therefore, the employer will not be able to rely on s76(1)(b) of the LRA to utilise replacement labour
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?