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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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?