Skip to main content

Article 67/2022

What are the latest developments in respect of lockouts?

_____________________________________

The approach adopted in Transport and Allied Workers Union of South Africa v PUTCO (2016) 27 SALLR 22 (CC); (2016) 37 ILJ 1091 (CC); [2016] 6 BLLR 537 (CC), read together with the labour court’s recent judgment in SA Commercial Catering and Allied Workers Union v Sky Country Meats Thaba’Nchu (Pty) Ltd (2020) 31 SALLR 160 (LC); (2020) 41 ILJ 2913 (LC), entails the following:

  • an unpacking of the definition of ‘lockout’ as well as the definition of ‘issue in dispute’ in s213 of the LRA entails:
  • an acknowledgment that the format of a lockout is the exclusion by the employer of its employees from the employer’s workplace
  • the purpose of compelling the employees to accept a demand made by the employer
  • the nature of the employer’s demand concerns a matter of mutual interest between the employer and employee
  • the ancillary benefit for the employer is that it is permitted to breach the contracts of employment in the course of and for the purpose of a lockout
  • that the necessary implications of the aforesaid exposition are that a demand made by the employer must precede the institution of a lockout and that the lockout notice does not constitute the required preceding demand – an issue in dispute must precede the institution of the lockout, same amounting to a demand, grievance or issue forming the subject matter of the lockout
  • when unpacking s64(1)(a), read with s64(1)(b), of the LRA, the following phases in implementing a lockout can be identified:
  • first phase: an application of s64(1)(a)
  • the issue in dispute must be referred to the CCMA or the relevant bargaining council for conciliation
  • second phase: an application of s64(1)(a)(i), read with s64(1)(a)(ii)
  • a certificate of non-resolution issued or the expiration of a 30-day period (or an extension agreed upon by the parties) since the CCMA/bargaining council received the referral is to occur before the lockout notice is issued
  • third phase: an application of s64(1)(c)
  • 48 hours’ written notice of the lockout must be given to any trade union that is a party to the dispute or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case notice must be given to that council (or, in the case of a proposed strike or lockout where the state is the employer, at least seven days’ notice of the commencement of the strike or lockout has been given to the parties contemplated above)
  • further necessary implications of the aforesaid phased approach:
  • an issue in dispute must proceed a referral to conciliation
  • the issue in dispute must be between the relevant parties and the relevant subject matter referred to conciliation – a lockout is only permitted in respect of the said subject matter and the said parties

See further NUMSA v Trenstar (2021) 32 SALLR 23 (LC); (2021) 42 ILJ 555 (LC)

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?