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Article 45/2024

LabourEdge

The labour appeal court recently had the opportunity to identify the different approaches that could be adopted to compulsory interest arbitration in terms of s74(4) of the LRA in respect of essential services – what were these options and on what basis would an arbitrator decide which one is more appropriate than others in a specific scenario?

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  • The labour appeal court, in Working on Fire (Pty) Ltd v NUMSA and Others (2022) 43 ILJ 2764 (LAC); [2023] 1 BLLR 39 (LAC); (2022) 33 SALLR 64 (LAC), approached the above issues as follows:
    • in the scenario where the parties do not agree to an arbitrator’s terms of reference and it is left to the arbitrator to determine, in terms of s136(4) of the LRA, the arbitrator has to ascertain the applicable rule of law or legal questions available to him or her – this is a question of law
    • the arbitrator has to make a value judgment as to which of the options listed below are best suited to resolve the dispute before him or her – this is a matter of discretion and not a question of law
  • The labour appeal court, in the aforesaid matter, identified the following three options available to an arbitrator in the aforesaid scenarios, namely:
    • the hypothetical outcome approach (NEHAWU v Lifecare Health [1999] 2 BALR 153 (CCMA)) – this approach entails the arbitrator anticipating where bargaining should have been struck had the bargaining continued to conclusion and in good faith
    • the fairness approach (SAMWU v Water and Sanitation Services SA (Pty) Ltd [2002] 1 BALR 89 (CCMA)) – this approach entails that the arbitrator is to be persuaded on the basis of fairness, which respective case should be accepted and the arbitrator is to investigate whether the respective parties had proffered sufficient reasons for the acceptance of their respective positions
    • final offer position/approach (NUMSA v Working on Fire [2018] 10 BALR 1082 (CCMA)) – the arbitrator has no choice but to decide between the respective final proposals of the parties, with no discretion to merely split the difference between the final positions
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?