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Article 52/2021

Labour Edge

How did the labour court recently, in Mahle Behr SA (Pty) Ltd v National Union of Metalworkers of SA and Others; Foskor (Pty) Ltd v National Union of Metalworkers of SA and Others (2019) 30 SALLR 173 (LC), deal with the pre-strike ballot requirement?

  1. the respondents’ second argument was premised on what they suggested was an issue related to the interpretation of the section. The respondents suggested that the section should be interpreted to mean that the transitional provisions would only apply after the registrar had issued the directive and before there was compliance with the directive;
  2. in interpreting statutes, the court is required to apply the accepted canons of interpretation. In this matter, the labour court was of the view that the provisions of s19 were clear and unambiguous and the court was obliged to give effect thereto;
  3. the purpose of the legislation is clear in that its purpose, inter alia, is to provide that, before a union may engage in a strike, it should conduct a secret ballot of its members. In addition to this provision, and to regulate the interim position, the transitional provisions require the holding of a secret ballot by a union (and employers’ organisation in respect of a lockout) prior to engaging in a strike. The requirement is peremptory and applies only to registered trade unions that do not include in their constitution the requirement of a ballot;
  4. to interpret the section as not applying to the respondents negates any suggestion that the transitional provisions will apply in the interim pending compliance; and
  5. that being so, the labour court was satisfied that the transitional requirements applied to those unions whose constitutions do not provide for ‘recorded and secret ballots’ and that, in the interim, prior to complying with the requirements relating to a secret ballot, they ‘must conduct a secret ballot of members’ before engaging in a strike.
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?