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Article 68/2022

Jurisdictional facts to be met before the CCMA can determine a picketing rule dispute in terms of s69 of the LRA

What are the jurisdictional facts to be met before the CCMA has jurisdiction to determine a picketing rule dispute in terms of s69 of the LRA, subsequent to the amendments of 2014 and 2018?

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If the approach adopted in SA Airways v SA Transport and Allied Workers Union (2013) 24 SALLR 394 (LC); (2013) 34 ILJ 2064 (LC) is to be applied to the aforesaid subsequent amendments in 2014 and 2018, then the following jurisdictional facts can be identified to exist before the CCMA has jurisdiction to determine such picketing rules:

first prerequisite jurisdictional fact

  • the absence of a collective agreement regulating picketing or the absence of an agreement reached during conciliation (s69(4) and s69(5) of the LRA)
  • a ruling made in this regard is to be taken on review, not in terms of the Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (CC) (‘Sidumo’) but must be objectively justifiable in terms of SACCAWU v Speciality Stores Ltd (1998) 19 ILJ 557 (LAC) (‘Speciality Stores’) and President of the Republic of South Africa and Others v SA Rugby Football Union and Others 2000 (1) SA 1 (CC) (‘SA Rugby’)

second prerequisite jurisdictional fact

  • the picket must be authorised by the union and the employer must be informed accordingly (s69(1) of the LRA)
  • the ruling made in respect of the second jurisdictional fact is to be taken on review, not in respect of Sidumo but in terms of Speciality Stores and SA Rugby

third prerequisite jurisdictional fact

  • the contemplated strike must be protected but the lockout not necessarily so (s69(1)(a) and s69(1)(b) of the LRA
  • essentially, the following requirements must be met to render a strike protected:
  • the issue in dispute must be referred to the CCMA or the relevant bargaining council
  • a certificate of non-resolution must be issued or a 30-day period (or such longer agreed-upon period) must have lapsed
  • the required 48-hours’ notice of the commencement of the strike must be given in writing (s64(1)(b) of the LRA)
  • again, the ruling in this regard is to be taken on review, not in terms of Sidumo but in terms of Speciality Stores and SA Rugby

fourth prerequisite jurisdictional fact

  • the conciliating commissioner must determine the dispute rules at the same time as issuing a certificate of non-resolution (s69(6A) of the LRA)
  • no picket is to take place unless the rules are determined by the conciliating commissioner in terms of s69(6C)(b) of the LRA
  • a ruling in this regard is to be taken on review, not in terms of Sidumo but in terms of Speciality Stores and SA Rugby

fifth prerequisite jurisdictional fact

  • the picket rules so determined must relate to a strike/lockout in respect of which the union has called the picket and no other strike or lockout (s69(4) of the LRA)
  • a ruling in this regard is to be taken on review, not in terms of Sidumo but in terms of Speciality Stores and SA Rugby
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?