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Article 62/2021

Labour Edge

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?

  1. It is, however, important to appreciate that the lockout notice itself does not constitute the demand by the employer, but is simply a notification of the industrial action to be implemented by the employer as a result of a demand that already exists. This is evident from the following dictum in Transport and Allied Workers Union of SA v Putco Ltd (2016) 37 ILJ 1091 (CC),:

‘[36]   The LRA clearly distinguishes between a notice and a demand and does not use the two interchangeably. The purpose of a lockout notice is to inform a union and its members of an impending lockout. In other words, recourse to a lawful lockout must already be available. An employer is not entitled to resort to a lockout if it has not yet made a demand to those employees who are to be excluded from the employer’s workplaces.’

  1. The issue of what constitutes a demand in the context of a lockout was further elaborated on by the Court in United Transport and Allied Trade Union/SA Railways and Harbours Union and Others v Autopax Passenger Services (SOC) Ltd and Another (2014) 35 ILJ 1425 (LC), at paragraph [60], as follows:

‘In addressing this issue, the pertinent question to be answered is what, in the context of collective bargaining, constitutes a “demand”. The starting point in this enquiry is the definitions section in the LRA, which defines a “dispute” as “a dispute includes an alleged dispute”, and “issue in dispute” as “in relation to a strike or lockout, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lockout”. What is clear from these definitions is that to use the word “demand” in the context of the sole subject-matter of a lockout is not really correct. The definition provides for both a “demand” and a “dispute” as being susceptible to forming the subject-matter of a lockout. The problem that arises in respect of this issue is that “demand” and “dispute” are often regarded as synonyms, when they are not.’

  1. It therefore follows that, where a trade union tabled a demand relating to conditions of employment with an employer, and that dispute is referred to conciliation but remains unresolved, a lockout may be implemented by an employer as part and parcel of the collective bargaining process to resolve the impasse, irrespective of whether a strike starts or not (Putco (supra), paragraph [45]; Autopax (supra), paragraph [42]; Technikon SA v National Union of Technikon Employees of SA (2001) 22 ILJ 427 (LAC), paragraph [16]).
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?