Skip to main content

Article 47/2024

LabourEdge

In terms of s73A of the BCEA, the CCMA has jurisdiction to determine a dispute where an employee claims wages if the employee earns less than the earnings threshold, as contemplated in s6(3) of the BCEA.

How is this threshold to be calculated?

What is the test for review when challenging the arbitrator’s ruling as to whether or not s73A of the BCEA is applicable to a claim, where an employee claims arrear wages and commission, as well as leave pay, before the CCMA?

_____________________________________

  • The labour court, in Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and Others (2022) 43 ILJ 2379 (LC); (2022) 33 SALLR 278 (LC), indicated that the test for review, based on the aforementioned jurisdictional challenge is not the reasonable decision-maker test of Sidumo (CC) – Article 26/2024 – but the labour court is required to determine, de novo, whether the arbitrator was right or wrong (Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LC); SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] 29 ILJ 2218 (LAC)).
  • In the Government Gazette of 1 July 2014, ‘earnings’, for the purposes of s6(3), are defined as:
    ‘…the regular annual remuneration before deductions i e income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice’.
  • What constitutes ‘regular annual remuneration’ is to be found in s35(5)(a) of the BCEA – the Minister may, by notice in the Government Gazette, determine whether a particular category of payment, money or kind forms part of an employee’s remuneration.
  • The Minister made such a determination on 23 May 2003 (see Government Notice 691, contained in Government Gazette No 24889, dated 23 May 2003), indicating, inter alia, the following:
    • remuneration includes cash payments made to an employee, except for exclusions specifically listed
    • under ‘exclusions’, the following are listed: allowances or payments to enable an employee to work, relocation allowance, gratuities and gifts, share incentive schemes, discretionary payment, entertainment allowance and education and schooling allowance – therefore, ‘earnings’ is far more than just the fixed salary of an employee (in the Prestige Campworld judgment, it was found that remuneration included commissions earned, seeing that same were guaranteed and not discretionary and did not fall within the exclusions).
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?