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.
It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest. Does this equate to a lockout notice?