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Article 51/2021

Labour Edge

How did the labour appeal court recently, in Solidarity obo members employed in the motor industry v Automobile Manufacturers Employers’ Organisation and Others (2019) 30 SALLR 41 (LAC), deal with issues surrounding the enforceability of agency shop agreements?

  1. in Greathead v SA Commercial, Catering & Allied Workers Union 2001 (3) SA 464 (SCA), paragraphs [12] and [22], the supreme court of appeal declared an agency shop agreement not in compliance with s25(3) of the LRA to be unenforceable. It rejected the notion that the requisite provisions may be incorporated by implication;
  2. the LRA requires an agency agreement specifically to provide for the matters prescribed in s25(3) of the LRA and the failure to so provide will render the agreement not binding and unenforceable;
  3. with regard to the retrospective amendment of the collective agreement by clause 2 of the second collective agreement, Solidarity relied on the following dicta of the supreme court of appeal in Greathead, at paragraph [13]:

‘The respondent submits that if the issue of non-compliance had been raised before the court a quo the respondent would have been entitled to seek rectification of the agreement to accord with the true agreement of the parties. The problem facing the respondent in this regard is that non-compliance with the provisions of s25(3) gives rise to an agreement which is formally invalid for want of compliance with statutory formalities. For these reasons the agreement is incapable of rectification.’;

  1. the concept of rectification is not the same as the concept of retrospective amendment of a collective agreement. Rectification is a remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract. It enables parties to give effect to their actual agreement (see, for example, Intercontinental Exports (Pty) Limited v Fowles 1999 (2) SA 1045 (SCA) at 1051H); and
  2. ……. – there is no express statutory prohibition on the retrospective operation of collective agreements. However, it is generally presumed that the law maker does not intend statutory instruments to be retrospective in their operation. The presumption is, of course, rebuttable, expressly or by necessary implication, even where the instrument impacts negatively on vested or existing rights (Curtis v Johannesburg Municipality 1906 TS 308).
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?