Skip to main content

Article 59/2022

To what extent may an employer pay non-striking employees a bonus during a strike?

_____________________________________

The original position is reflected in SACCAWU v OK Bazaars (1929) Ltd (1995) 16 ILJ 1031 (A) where Grosskopf JA held the following:

  • measures to discourage strikes are encouraged and legally permissible (e.g. the offering of financial inducement to non-strikers)
  • the threat of withholding a bonus from strikers or the actual withholding of such a bonus does not affect workers’ freedom to strike
  • it is unreasonable to deprive non-striking workers of a bonus merely because others are engaged in a strike with which the non-strikers have no sympathy

(The above approach is followed in National Union of Mineworkers v Cullinan Diamond Mine, a division of Petra Diamond Mines (Pty) Ltd (2019) 30 SALLR 184 (LC); (2019) 40 ILJ 1826 (LC) (‘Petra Diamonds (LC)’) and National Union of Mineworkers v Petra Diamonds t/a Cullinan Diamond Mine (2021) 32 SALLR 9 (LAC); (2021) 42 ILJ 785 (LAC) (‘Petra Diamonds (LAC)’)

The industrial court, in Chemical Workers Industrial Union v BP South Africa (1991) 12 ILJ 599 (LC), held the viewpoint that there were good and compelling economic reasons to differentiate between striking and non-striking workers for the duration of a strike (see also East Rand Gold and Uranium Co Ltd v NUM (1989) 10 ILJ 683 (LAC)) – this approach was followed in Petra Diamonds (LC) and Petra Diamonds (LAC). 

The following labour court judgments, however, adopted a different approach, as that set out above:

  • in National Union of Mineworkers v Namakwa Sands – a division of Anglo Operations Ltd (2008) 29 ILJ 698 (LC), it was held that the payment of a so-called redeployment allowance and free meals per se amounted to a breach of s5(3) of the LRA
  • in Food & Allied Workers Union and Others v Pets Products (Pty) Ltd (2000) 21 ILJ 1100 (LC), it was held that a R200 voucher paid to non-striking employees for hard work performed during a strike and going the extra mile, so to speak, per se amounted to a breach of s5(1) of the LRA

(The above approach was not followed in Petra Diamonds (LC) and Petra Diamonds (LAC).)

In Petra Diamonds (LAC), the following approach was adopted:

  • the question to be answered is whether a differentiation between non-striking employees and striking employees is justified in the circumstances
  • economic sanctions underwrite the collective bargaining process
  • the countervailing power of an employer to a strike is not the prerogative to lockout but indeed the prerogative to act unilaterally
  • consequently, what must be determined is whether or not the unilateral offer to pay a bonus, extra pay, etc, is:
  • suitable and
  • necessary (proportional)
  • to protect property and business
  • the above is, in essence, a factual question
  • in casu, it was found that such unilateral offer was justified, seeing that it was proportional and protected the business of the employer
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?