Skip to main content

Article 42/2024

LabourEdge

Is a commissioner empowered to proceed with an arbitration involving a dispute referred to in terms of s191(5)(a) of the LRA, despite an objection by the other party to the dispute, but in non-compliance with rule 17(2) of the CCMA rules?

_____________________________________

  • In terms of rule 17(2) of the CCMA rules, a party, that intends to object to a dispute being dealt with in terms of s191(5A), must deliver a written notice to the CCMA and the other party, at least seven days prior to the scheduled date of the con-arb hearing.
  • In terms of s191(5A) of the LRA, the CCMA, or the relevant bargaining council, must commence the arbitration immediately after certifying that the dispute remains unresolved if:
    • the dismissal relates to probation, or
    • the unfair labour practice relates to probation, or
    • there is no objection for the matter to proceed immediately to arbitration
  • The labour court, in Valinor Trading 133 CC t/a Kings Castle v CCMA and Others (2023) 44 ILJ 1106 (LC); (2023) 34 SALLR 13 (LC), adopted the following approach to the aforesaid issues:
    • s34 of the Constitution guarantees everyone to have any dispute, that can be resolved by application of law, decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum
    • it is wrong to interpret s191(5A)(c) of the LRA to mean that any objection raised outside the prescribed period in rule 17(2) of the CCMA rules ceases to be an objection
    • rule 35(1) of the CCMA rules provides the CCMA and the commissioner with a wide discretion to condone any failure to comply, on good cause shown, and this discretion is to be utilised when there is non-compliance with the seven-day time period as set out in rule 17(2) of the CCMA rules – it does not follow that non-compliance with the seven-day requirement in rule 17(2) renders defective an objection to the point that it can be ignored
  • In response to this judgment, the Director of the CCMA, on 6 April 2023, issued a directive indicating, inter alia, that rule 17(2) remains in force, but any failure with the seven-day time period can be condoned, on good cause shown.
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?