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Article 76/2022

Review of bargaining council exemption appeal authority

In terms of s158(1)(g) of the LRA, subject to s145 of the LRA, the labour court has the power to review the purported performance of any functions provided for in the LRA on any grounds that are permissible in law.  In terms of s30(1)(k) of the LRA, the parties to a bargaining council are specifically mandated to include in a collective agreement an exemption procedure.  What is the viewpoint of the labour appeal court as to whether or not the workings of such exemption body are subject to the review jurisdiction of the labour court in terms of s158(1)(g) of the LRA?

Are the decisions of domestic tribunals, such as exemption appeal authorities of bargaining councils, subject to review on common law grounds?

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In Golden Arrow Bus Services (Pty) Ltd v SA Road Passenger Bargaining Council and Others (2021) 32 SALLR 18 (LAC); (2021) 42 ILJ 1446 (LAC), the labour appeal court adopted the following approach:

  • in terms of s158(1)(g) of the LRA, subject to s145 of the LRA, the labour court has the power to review the purported performance of any function provided for in the LRA on any ground permissible in law
  • in terms of s158(1)(j) of the LRA, the labour court has the power to deal with all matters necessary or incidental to performing its functions in terms of the LRA or any other law
  • s30(1)(k) of the LRA expressly provides for the inclusion of exemption procedures from collective agreements concluded at bargaining council level – it, therefore, follows that the LRA legally mandates every bargaining council to provide a procedure for exemption.  This constitutes performance of a function provided for in the LRA and, therefore, in terms of s158(1)(g), the labour court has jurisdiction to determine the legality or otherwise of such mandated procedure
  • it is irrelevant whether the decision of an exemption panel constitutes administrative action as defined in PAJA, seeing that the decisions of domestic tribunals may be subject to review on common law grounds – this position had been made clear since the decision in Turner v Jockey Club of SA 1974 (3) SA 633 (A)
  • the court, in Turner, went on to hold that, where the decision of a tribunal is vitiated by a disregard for the principles of natural justice, the matter cannot be corrected by the appeal proceedings before a higher tribunal but only by way of a complete rehearing of the matter de novo
  • of equal relevance to this issue is the decision in Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC), where the labour appeal court recognised the broad powers of review which had been conferred, particularly in terms of s158(1)(h) and, by extension, by s158(1)(g) of the LRA
  • Murphy AJA, in a carefully considered judgment, held, at paragraph [21], that there is, strictly speaking, no need to classify the decision as administrative action in terms of PAJA before a review will be competent under s158(1)(h) of the LRA. This provision does not say that the labour court may review decisions of the state acting as employer on the grounds of review applicable to administrative action under PAJA.  It does say that the labour court may do so on any grounds “permissible in law”
  • review under PAJA is only one kind of administrative law of review. Exercises of the public power are also reviewable on constitutional grounds of legality and rationality
  • Murphy AJA then went on to say that the submission by the appellant, that review should be excluded because of the contractual arrangement and the private nature of the powers, was not well founded. The judicial review of contractual disciplinary proceedings is permitted in our law. Consequently, the application for review was permitted on these grounds which are ‘permissible in law’ as contemplated in s158(1)(h) of the LRA
  • it did not appear to the labour appeal court that any justifiable distinction can be drawn between a dispute dealing with the decision of an appeal body concerning an exemption application and a disciplinary hearing, as was the case which confronted the court in Hendricks.  Hence, the dicta in Hendriks are relevant to the disposition of the present appeal
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?