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

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.