Article 48/2021

Labour Edge

Does the LRA impose a duty to bargain?


In Bidair Services (Pty) Ltd v Makgoba NO and Others (2019) 30 SALLR 168 (LC), the labour court recently stated the following:

It should be recalled that the basic structure of the LRA is one that does not impose a duty to bargain. Rather, the constitutional right to engage in collective bargaining finds expression in a strong set of organisational rights (those referred to in s12 to s16 of the LRA) and the right to strike in support of a demand that a party be recognised as a collective bargaining agent, or any other element of what the LRA defines as a refusal to bargain.  If the conceptual integrity of this structure is to be maintained (as it must), then commissioners (and judges) must be cautious not to confuse what are two discrete concepts and thus run the risk of imposing a duty to bargain.  The structure of the LRA is one in which commissioners and judges have no role in determining whether one party should bargain collectively with another, the subject matter of any collective bargaining, the level at which bargaining should be conducted, or the identity of any bargaining partner.

Is it a requirement that each page of an affidavit must be initialled? Is it a requirement that every page of every annexure to an affidavit must be initialled?

The first leg of the test to determine whether or not urgency exists, when an urgent application is brought, requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course.

Previous articles this year dealt with a zero-tolerance policy when tested positively for alcohol or drugs, as well as a zero-tolerance policy in respect of having tested positive for cannabis. In short, the courts hold the viewpoint that, by means of such policies, an employer is not permitted to create an absolute ‘no go zone’ and, furthermore, held that, at all given times, one of the fundamental questions to be asked, irrespective of the content of such zero-tolerance policy, is the effect of the drugs/alcohol/cannabis on the ability of the employee to do his/her job.