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Article 39/2024

LabourEdge

What is the approach to be adopted by an individual employee claiming that his/her employer has unilaterally changed the terms and/or conditions of employment applicable to him/her?

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The labour court, per Van Niekerk J, dealt with the aforesaid issue in Nhlapo Mofokeng v Emfuleni Municipality and Another (2023) 44 ILJ 815 (LC); (2022) 33 SALLR 276 (LC) as follows:

  • s64(4) of the LRA permits an employee or a trade union, who refers a dispute about a unilateral change to terms and conditions of employment to a council or the CCMA, in such referral and for the period mentioned in s64(1)(a) (a maximum of 30 days), to (a) require the employer not to implement the unilateral change, or (b) if already implemented, require the employer to restore such terms and conditions of employment
  • with reference to the aforesaid statutory provision, it is important to indicate that s64(1)(a) of the LRA determines that the right to strike and the recourse to lockout occurs if the issue in dispute has been referred to the council or the CCMA and if either a certificate of non-resolution has been issued or the period of 30 days has lapsed since the referral was received by the council or the CCMA (the maximum of 30 days)
  • in terms of s64(5) of the LRA, the employer is required to comply with the requirement to restore the existing terms and conditions of employment or not to implement the anticipated changes within 48 hours of service of the referral on it – with reference to Schoeman and Another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC) and Du Randt v Ultamat SA (Pty) Ltd and Another (2013) 34 ILJ 2228 (LC), it was held that s64 only pertains to employees in a strike context (or lockout context) and not to an individual employee

Thus, unlike the scenario under the 1995 LRA, where the unilateral change to terms and conditions of employment constituted an unfair labour practice, it is apparent that the only option available to an individual employee is to challenge the employer before the labour court in terms of s77(3), read with s77A(e), of the BCEA.

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?