• Discuss the concept of collective bargaining.

• Discuss the role of bargaining councils.

• Discuss the concept of a collective agreement.
• Discuss the extension of collective agreements to non- union members/non-parties
and the constitutionality of it.
• Discuss the definitions of “strike”, “secondary strike” and “lock-out”.
• Discuss the requirements for primary strikes to be protected.
• Explain the immunities in respect of protected strikes and the consequences of
unprotected strikes.
• Discuss the requirements for secondary strikes to be protected.
• Discuss whether trade unions can be held liable for damages resulting from public
protests.

B. Compulsory study material

1. Van Niekerk and Smit Law@work (2023) Chapter 15 and 16
2. Association of Mineworkers & Construction Union v Chamber of Mines (2017) 38
ILJ 831 (CC)
3. Association of Mineworkers and Construction Union & others v Anglogold Ashanti
Ltd t/a Anglogold Ashanti & others (2022) 43 ILJ 291 (CC)
4. Massmart Holdings of SA v SA Commercial Catering and Allied Workers Union
[2022] 10 BLLR 980 (LC)
5. Modise & others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC)
6. SA Transport & Allied Workers Union & Another v Garvas & Others 2012 33 ILJ
1593 (CC)

Study Unit 9: Collective bargaining, Strikes and Lockouts

The meaning, requirements and functions of trade unions, employers’
organisations, and bargaining councils:

Collective bargaining:
• One of the main purposes of the LRA is to promote orderly collective bargaining at sectoral level
• The voluntarist nature of the LRA means that very little is said on the nature of collective
bargaining, how collective bargaining should take place, between whom and on what topics
• Collective bargaining has been described as:
o A process in which employers and employees make claims upon each other and resolve
them through a process of negotiation, leading to collective agreements that are
mutually beneficial. In the process, different interests are reconciled. For employees,
joining together allows them to have a more balanced relationship with their employer.
It also provides a mechanism for negotiating of a fair share of the results of their work,
with due respect for the financial position of the enterprise or public service in which
they're employed. For employers, free association enables firms to ensure that
competition is constructive, fair and based on a collaborative effort to raise productivity
and conditions of work
• Collective bargaining, as a social institution, is responsive to economic demands and
circumstances
 o Individual employees occupy much weaker bargaining positions than employers. Thus,
individual employees are represented by trade unions who negotiate on their behalf
o Contracts of employment hardly ever include a clause pertaining to annual wage
increases
▪ Inflation erodes the value of salaries
▪ Employees may decide to join a trade union, by paying monthly subscription
fees
▪ The trade union then negotiates, on a regular basis, with employers in the best
interests of the employees, to increase their salaries
• The LRA does not compel collective bargaining
o Although the LRA recognises the virtues of collective bargaining, nowhere is it suggested
that the process should be anything other than voluntary
▪ However, trade unions may obtain organisational rights and workers have the
right to strike
▪ LRA remains facilitative rather than prescriptive, while unequivocally promoting
collective bargaining as the primary mechanism to establish tc's and c's of
employment and avoid industrial conflict
▪ LRA doesn’t establish an enforceable duty to engage in collective bargaining,
like the one that existed in the previous labour dispensation
o Constitution contemplates that collective bargaining between employees and
employers = key to a fair industrial relations environment

Bargaining parties:
• Types of bargaining parties:
o Trade unions
▪ A trade union = an association of employees whose principal purpose = to
regulate relations between employees and employers, including a employers'
organisation
o Employer's organisations :
▪ An employer's organisation means any number of employers and employees or
trade unions
• Requirements for registration of bargaining parties:
o Any trade union may apply to registrar for registration if it complies with the following
reqs:
▪ Its name or a shortened form of then name doesn’t closely resemble the name
or shortened name of another trade union that is likely to mislead or cause
confusion
▪ It has adopted a constitution that meets the reqs of s.95(5) and (6)
▪ It has an address in RSA and
▪ It's independent
• A trade union is regarded as independent if:
• it's not under the direct or indirect ctrl of any employer or
employers org and
• It's free of any interference or influence of any kind from any
employer or employers' organisation
o Similar criteria applies with the necessary changes, to employers' organisations that
apply for registration
 • Effect of registration of bargaining parties:
o Upon registration, a certificate of registration will be issued an serves as sufficient proof
that a registered trade union or registered employers' org is a body corporate
▪ Registered trade unions and registered employers' organisations become
separate legal entities
o By reason of its status as a body corporate, a registered trade union or a registered
employers' organisation may:
▪ Sue or be sued in its own name
▪ Acquire and dispose of property and
▪ Conclude agreements
o The fact that a peep is a member of a bargaining council doesn’t make the person liable
for any of the obligations or liabilities of the registered trade unions or registered
employers' org
o A registered union becomes entitled to:
▪ Conclude collective agreements
▪ Participate in the establishment of a workplace forum
▪ Represent members in the dispute resolution process and
▪ Qualify for statutory org rights
• Ballots or strikes or lock outs:
o There is no req for a secret ballot prior to a strike or lock out, i.e the LRA doesn’t directly
compel compliance with the ballot system
o A TU or employers' org, before calling a strike or lockout must conduct a ballot of those
of its members iro whom it intends to call the strike or lockout, ito the provisions of its
constitution
▪ Thus, the constitution of a TU or employers org MUST include a req that ballots
must be conducted before a strike or lockout occurs, i.e. the LRA compels
indirect compliance with the ballot system
• Note: This req doesn’t affect the status of the so called protected or
unprotected strike
o The failure of a registered TU or registered employers' org to comply with the provision
in its constitution req it to conduct a ballot of those of its members iro whom it intends
to call a strike or lockout, may not give rise to or constitute a ground for any litigation
that will affect the legality of the strike or lockout
o Members may not be discipline or have their membership terminated if the fail or
refuse to participate in any strike or lockout if:
▪ No ballot was held or
▪ A ballot was held but majority of the members who voted didnt vote in favour

NUMSA v Mahle Behr SA:

• Dealt with what the effect of a strike is where no ballot was held
• LC held that strike was unprotected due to absence of the ballot
• However, NUMSA didnt include a provision in its constitution giving effect to s. 95(5)(p)
• In 2018, the LRA was amended to encourage unions to conduct ballots before embarking on a
strike
• This amendment placed a duty on the registrar to engage with all unions with a constitution not
compliant with s.95(5)(p)
• LAC found that registrar failed to initiate this process with NUMSA
• Due to this failure, LAC found that the strike wasn’t unprotected
 • The reasoning wasn’t the provision in s.67(7), but due to the registrar's failure in her or her duty
• A question was left open as to whether s.67(7) takes preference over s.95(5)(p)

Bargaining Councils
• Serve as the primary vehicle to promote collective bargaining at a sectoral level (centralized
bargaining)
• The main function of a bargaining council = to serve as a forum for the negotiation of t's and c's
of employment of the members of the union parties to the council

Powers and functions of a bargaining council

• To conclude and enforce collective agreements
• To prevent and resolve disputes
• To promote and establish training and education schemes
• To establish and administer schemes or funds (medical aid, pension, etc.)
• To develop proposals for submission to NEDLAC or other appropriate forum on policy legislation
that affects a sector

Bargaining councils in the public sector

• Generally bargaining councils are voluntarily bodies
• The exception is where bargaining councils are in public service
• LRA provides for the establishment of a bargaining council for the public service as a whole to be
known as the Public Service Co-coordinating Bargaining Council

Collective Agreements
• Don’t confuse with ordinary commercial contracts
• Concluded between unions and employers or employers orgs
• Must be in writ, but needn't be signed unless stated otherwise in the agreement
• Matters of mutual interest has been interpreted to be broader than including only terms of
employment

Who is bound by collective agreements?

• Not only parties to the agreement are bound, also applies to:
o Members of the unions and or employers orgs
o Employees not members of the party to the agreement if:
▪ They are identified in the agreement
▪ Agreement expressly binds employees, and
▪ The party to the agreement is a majority union
o The extension of collective agreements to non members is provided for in s.23(1)(d)

• AMCU v Chamber of Mines

o The constitutionality of s.23(1)(d) was challenged
o AMCU argued that because they represented majority of workers at certain mines, the
collective agreement didnt bind them
o The CC held that those mines weren’t individual
o Thus, AMCU wasn’t a majority union and were bound by the collective agreement
o S.23(1)(d) was argued as being unconstitutional as it limited the rights of members of
the AMCU to strike
 o The collective agreement had a no strike clause (couldn’t be challenged by strike action
o CC held that provision does impose a limitation but that it is justified

Collective agreements concluded in bargaining councils

• s.23(1)(d) deals with collective agreements not concluded in bargaining councils
• The extension of collective agreements concluded in bargaining councils to non parties is
embodied in s.32
• Ito this section, the bargaining council may request by application to the minister that the
collective agreement be extended to non parties
• There = 2 thresholds that must be met before the collective agreement can be extended:
o Threshold 1 (internal process)
▪ Majority unions that are parties to the bargaining council must vote in favour of
the extensions and
▪ Majority employers orgs that are parties to the bargaining council must also
vote in favour of the extension
o Threshold 2
▪ The minister must be satisfied that the following reqs have been met:
• Majority of employees to whom the collective agreement will apply if
extended must be members of the union that are parties to the
bargaining council OR
• The members of the employers organization’s that are parties to the
bargaining council must be found to employ the majority of the
employees that fall within the scope of the collective agreement AND
• Non parties must fall within the bargaining council's registered scope

• Free Market Foundation v Minister of Labour

o HC found that s.32 is not unconstitutional
o HC held that the extension of collective agreements ito s.32 promotes the principle of
Majoritarianism
o This principle is promoted by the LRA
Strikes and lock outs

Introduction:
• s.23(2)(c) of Constitution provides for the right to strike
• Importance of the right:
o It's through industrial action that workers = able to assert bargaining power in
industrial relations
o The right to strike = NB component of successful bargaining system
• The right to strike isnt absolute as it may be ltd by the LRA

What is a strike?
• LRA definition:
o Partial or complete concerted refusal to work, or the retardation or obstruction
of work by peeps who are or have been employed by the same employer or by
different employers, for purpose of remedying a grievance or resolving a
dispute iro any matter of mutual interest between employer and employee and
every reference to 'work' in this def includes overtime work, whether voluntary
or compulsory
• Def contains 3 main elements:
o Refusal to work
o Collective action and
o Purpose

• Refusal to work
• What is included?
o Refusal to do voluntary overtime work
o Partial refusal to work (perform some, but not all duties)
o Retardation (go slow) and obstruction of work
• What isnt included?
o Refusal based on contravention of a statutory provision
o Refusal based on unlawful nature of instruction
o Refusal in reaction to breach of contract

• The refusal must be made by peeps who are or have been employed by the same
employers or by different employers
• Different employers = secondary strikes

• Collective action
• More than one peep must be involved in the refusal to work
• This = held in Schoeman v Samsung Electronics
• It must thus be a concerted refusal to work
• Although a single employer can institute a lock out, it cannot be enforced against a
single employee
 • Purpose
• For the purpose of remedying a grievance or resolving a dispute
o Includes an alleged dispute
o All employees entitled to strike, whether or not they are directly involved in the
dispute
o Cannot strike in support of an unlawful demand
o TSI Holdings Pty v NUMSA and Others
▪ Strike was called to support a demand that a supervisor be dismissed for
alleged racist remarks
▪ Union referred dispute to CCMA for conciliation but it failed
▪ Employer suspende the manager and sought and order from the LC
stating that the strike is unlawful and unprotected
▪ LC held that the demand wasn’t to unfairly dismiss the manager
▪ Thus, the employer wasn’t required to act unlawfully and the strike was
thus protected
▪ LAC distinguished between strikes accompanied by a demand and
examined whether the demand was lawful
▪ It also examined whether the rights of the manager not to be unfairly
dismissed had been infringed
▪ LAC held that the strike cannot constitute a violation of the right not to
be unfairly dismissed
▪ It was held that the manager's right not to be unfairly dismissed was
violated and that this demand couldn’t form the subject of the strike
o Once employer accedes to demands, the strike no longer has a purpose and is
terminated
▪ TAWUSA obo Ngedle and Others v Unitrans Fuel and Chemical
• Minority judgment held that once an employer accedes to
demands, the strike no longer has a purpose and terminates
• Majority judgment didnt disagree and held that the employer
had not fully acceded to the demands and the strike remained
protected
▪ Afrox Ltd v SACWU and Others
• It was held that a strike could terminate in a number of ways
such as when the strike is abandoned
• Another way is when the employer concedes the demands of
the strikers or removes the grievance by resolving the dispute
• If a strike no longer has a purpose it terminates and so does its
protection
o Iro of mutual interest
▪ Includes 'disputes of right' and 'disputes of interest'
▪ Strikes aren’t permissible if the dispute can be referred to LC or CCMA
for arbitration
▪ Thus, most strikes = revolved around disputes of interest
o LRA prohibits strikes iro matters referred to arbitration or LC
o Essentially, strikes = iro disputes of interests with some exceptions

Limitations
 • Substantive limitations
• s.65 of LRA provides that:
o No peep may take part in strike or lockout or in any conduct in contemplation or
furtherance of a strike or lockout if
o that peep = bound by a collective agreement that prohibits a strike or lockout in
respect of the issue in dispute
o that peep = bound by an agreement that requires the issue in dispute to be
referred to arbitration
o The issue in dispute is one that a party has the right to refer to arbitration or the
LC ito this Act
o That peep = engaged in
▪ An essential service or
▪ a maintenance service

• e.g regarding para (c) above

o Trade union ABC engages in a strike at employer Z
o The reason is that the employer dismissed a shop steward, Ms P
o ABC alleges that dismissal = substantially and procedurally unfair
o ABC's right is limited regarding the unfair dismissal dispute
o This = a dispute of right that must e referred to the CCMA
• Re: para d above
o Essential service
▪ Service which, if withheld or interrupted, could cause harm and or
death to society (e.g. doctors and nurses)
▪ Ito SAPS, it refers to the members of the service (officers) not everyone
such as administrators, etc.
▪ Services not included in def of essential service:
• fire department
• air traffic control
• water and electricity providers, etc.
o Maintenance service
▪ Service without which would result in a material physical destruction to
any working area, plant or machinery if it were to be interrupted
▪ e.g. deep level gold mining where, if not maintained, the water pumps
will become unsafe if not regularly maintained
▪ Those involved in the maintenance services cant strike
o Minimum service agreement
▪ This = agreement that sets out the minimum service workers that must
be at work in an essential services environment
▪ Ito this agreement, certain categories of workers can be identified who
must be at work during a strike
▪ e.g.
• In the health services sector, doctors and nurses are essential
service workers
• they may enter a minimum services agreement in that sector
• this would usually mean that a portion of the doctors or nurses
(e.g. 50%) must be at work during a strike
Procedural limitations
• s.64(1) of the LRA provides that
o Every employee has the right to strike and every employer has recourse to lock
out if:
(a) the issue in dispute has been referred to a council or the Commish as req
by this Act, and
(i) a certificate stating that the dispute remains unresolved has been issued or
(ii) a period of 30 days, or any extension f that period agreed to between the
parties to the dispute, has elapsed since the referral was received by the
council or the Commission, and after that -
(b) in the case of a proposed strike, at least 48hrs notice on the
commencement of the strike, in writ, has been given to the employer,
unless...
(i) the issue in dispute relates to a collective agreement to be concluded in a
council, in which case, notice must have been given to that council, or
(ii) the employer = a member of an employers' org that is a party to the
dispute, in which case, notice must have been given to employers' org or...
(c) in the case of a proposed lock out, in writ, has been given to any trade
union that = a party to the dispute, or, if there's no such trade union, the
employees, unless the issue in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been given to that
council or
(d) the case of a proposed strike or lock out where the State = the employer,
at least seven days' notice of commencement of the strike or lockout has
been given to the parties contemplated in paras (b) and (c)

Macsteel Service Centres SA Proprietary Limited v NUMSA & Others 2020

(LC)
• The employer’s business was affected by Covid-19
• None of the employees could work for a period, and the employer continued to pay
them during that time
• Around May of 2020 some of the lockdown restrictions were removed and certain
operations could begin
• This business could resume and only allowed 50% of its employees to return to work
• The employer could not continue to pay all of its employees their full salaries and
decided to pay all of its employees 80% of their salaries
• NUMSA argued that this constituted a unilateral change to terms and conditions of
employment
• NUMSA embarked on the section 64(4) and 65 procedure and requested the employer
not to implement the changes it intended to implement
• The employer argued that it was not a unilateral change, but rather that it was “short
pay”
• The LC held that the employer’s actions constituted a unilateral change, that it did not
comply with the section 64(4) and 65 procedures and that the employers were entitled
to embark on a strike
• Advisory arbitration
• If the dispute concerns a refusal to bargain, then an advisory arbitration award must
have been made before a notice of intention to commence a strike may be given
• This is also after conciliation fails
 • An advisory award is not binding and both parties must agree to accept the award
• A refusal to bargain dispute includes:
• Refusal to recognise a union as a collective bargaining agent;
• A refusal to agree to the establishment of a bargaining council;
• Withdrawal of recognition of a collective bargaining agent;
• Resignation from a bargaining council; and
• Disputes regarding appropriate bargaining units, bargaining levels and
bargaining subjects
Advisory arbitration:

• If the dispute concerns a refusal to bargain, then an advisory arbitration award must
have been made before a notice of intention to commence a strike may be given
• This is also after conciliation fails
• An advisory award is not binding and both parties must agree to accept the award
• A refusal to bargain dispute includes:
o Refusal to recognise a union as a collective bargaining agent;
o A refusal to agree to the establishment of a bargaining council;
o Withdrawal of recognition of a collective bargaining agent;
o Resignation from a bargaining council; and
o Disputes regarding appropriate bargaining units, bargaining levels and
bargaining subjects

Secondary strikes
• Strike in support of a primary strike by employees employed by another employer
• Not to be confused with a sympathy strike
o Employees joining in a secondary strikes don’t gain anything, they merely
support or sympathize with the primary strike
o It therefore qualifies as a sympathy strike, but a sympathy strike = broader than
merely including secondary strikes
o Sympathy strikes includes all strikes in support of a primary strike
o Thus, employees employed by the same employer as those on the primary
strike, but who aren't directly affected by the dispute may also join a sympathy
strike

Limitations of secondary strikes

• The right to engage in a secondary strike isnt unlimited
• The following limitations apply:
o Firstly, the primary strike supported by the 2ndary strike must be lawful
o Then, 7 days notice must be given to the 2ndary employer
o Finally, the nature and extent of the secondary strike must be reasonable ito the
possible direct or indirect effect that the 2ndary strike may have on the primary
employer
• The first two limitations are procedural in nature
• The third limitation defines the nature and extent of a right to engage in 2ndary action
• The third limitation implies a principle of proportionality
• e.g.
o Motor manufacturer and tyre company
 o Primary strike at motor manufacturer and secondary strike at tyre company
o Secondary strikes don’t supply tyres to increase pressure at the motor
manufacturer
o There is a causal link
o Workers at a brick manufacturer couldn’t engage in a secondary strike as there
is no possibility that they could have an influence

Immunities

Against breach of contract or delict

• No work no pay applies
• Employer may not claim damages or compensation from workers on strike due to
breach of contract or delict
• The above applies in so far as the actions of the workers are lawful
• If the workers act unlawfully during the strike, the employer may take action regarding
any harm suffered due to such conduct
• Employers must still comply with lawful disciplinary action where employees =
dismissed for unlawful conduct

Against dismissal
• Employers may not dismiss employees engaging in a protected strike
• If employees are dismissed for engaging in a protected strike, the dismissal is
automatically unfair
• Employers may dismiss employees on grounds of operation reqs while employees are
engaged in protected strikes
• However, the employer must prove that the dismissal was truly based on operational
reqs and not for a different underlying reason

Against discrimination
• Employers may not discriminate against those engaging in protected strikes
• E.g. employees who decide no to participate in the strike or who don’t benefit from the
strike may not be treated more favorably
• Similarly, employers may not reduce benefits of employees who engage in protected
strikes while not doing the same with other employees

Against claims for compensation

• If a strike is unprotected, the employer may claim compensation for damages suffered
due to loss of business if such compensation is just and equitable
• If a strike = protected, immunity against claims for compensation arises
• This applies in so far as the conduct of the strikers remains lawful

o Massmart Holdings v SACCAWU

• Massmart sought damages in the sum of R9 383 454,57 as just and equitable
compensation under section 68(1)(b) of the Labour Relations Act[1] (LRA) for
losses suffered as a result of unlawful conduct and offences that took place
during the course of a protected strike by SACCAWU
• The Companies contended that, during the strike, SACCAWU’s members
committed various offences and that their conduct;
 • was not peaceful;
• did not comply with the provisions of the LRA;
• did not comply with the COVID-19 regulations in force at the time;
• and, did not comply with picketing rules determined by the
Commission for Conciliation, Mediation and Arbitration.
• The Labour Court rejected this argument on the basis of its
interpretation of section 68(1)(b). It argued as follows:
• Section 68(1)(b) states that the court has jurisdiction to order
the payment of just and equitable compensation for any loss
attributable to an unprotected strike “or conduct”. The term
“conduct” is not explicitly linked to an unprotected strike.
Neither is it qualified as being conduct in furtherance of an
unprotected strike.
• Section 67(6) of The LRA gives unions and their members'
immunity from any civil legal proceedings in respect of
conduct in contemplation or furtherance of a protected
strike. However, this does not apply to unlawful conduct in
contemplation or furtherance of a protected strike.
• Section 69 of the LRA regulates the right to picket and
empowers the Labour Court to intervene in disputes
concerning pickets. It may make a variety of orders and these
are expressly stated to be “in addition” to any relief
contemplated in section 68(1) of the LRA.
• In closing, the court stated that:
“[22] …it would be anomalous if an aggrieved employer or union was entitled to
pursue a claim for compensation in this court under section 68 for loss
attributable respectively to a strike or lockout that does not comply with
Chapter IV but not for loss attributable to conduct that constitutes a breach of
the same Chapter, simply because the strike or lockout is protected.”

Dismissal of employees engaged in unprotected strikes

• Item 6 of the Code of Good Practice: Dismissal:
(1) Participation in a strike that does not comply with the provisions of Chapter IV is
misconduct. However, like any other act of misconduct, it does not always deserve
dismissal. The substantive fairness of dismissal in these circumstances must be
determined in the light of the facts of the case, including-
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.

(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union
official to discuss the course of action it intends to adopt. The employer
should issue an ultimatum in clear and unambiguous terms that should state what is required of
the employees and what sanction will be imposed if they do not comply
with the ultimatum. The employees should be allowed sufficient time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot
reasonably be expected to extend these steps to the employees in question, the employer may
dispense with them

Modise and Others v Steve's Spar Blackheath 2000 (LAC)

• There must be some form of audi alteram partem
• Thus, there must be negotiations before dismissal can be instituted

Roberts Brothers Construction Pty Ltd v NUM (LAC)

• This case regards which unions must be consulted
• Only unions with collective bargaining and org rights must be consulted
• There's no obligation to consult unions without org rights

The right to picket

• s.69(1) of LRA provides that:
o A registered TU may authorize a picket by its members and supporters for
purposes of peacefully demonstrating
(a) in support of any protected strike or
(b) in opposition to any lockout
• These usually take place outside the premises of the employer, but may at times also
take place on or inside the premises
• The purpose = to peacefully get non striking employees and/ or members of the public
to support the protected strike
• This includes:
o Persuading employees not to work during the strike
o To dissuade replacement labour or
o To persuade members of the public not to support the employer
• This may not include intimidation
• Collective agreements usually set out the rules of the picket
• If there is no such a collective agreement, then when the dispute is referred for
conciliation, the CCMA should encourage the parties to draft picketing rules
• If this fails, the CCMA itself may draft these rules obo the parties
• If there is a dispute about the right to picket, it may be referred to the CCMA and if this
fails, to the LC

SA Transport and Allied Workers Union an another v Garvas and Others (CC)
• If unlawful conduct takes place during demonstrations then the organizers can be held
liable for damage occurred during these demonstrations
• In this case, the union was ordered to pay damages to shop owners as a result of these
demonstrations

Lock-outs
• A lock out is a form of industrial action that may be exercised by an employer
• There's no constitutional right to lock outs
 • Lock outs def: the exclusion by an employer of employees from the workplace for the
purposes of compelling the employees to accept a demand iro any matter of mutual
interest between employer and employee whether or not the employer breaches those
employees' contracts of employment in the course of or for the purpose of that
exclusion
• There = 2 types of lockouts
• Offensive lockouts (e.g. in response to refusal to accept altercation of terms of
employment) and
• Defensive lockouts (e.g. response to strike)
• The requirements for lockouts are similar to those of a strike

Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited and
Others (CCT 233/20) [2021] ZACC 42

• Principle:
• Section 66(2)(c) of the Labour Relations Act (LRA) mandates a proportionality
assessment to determine the reasonableness and substantive lawfulness of secondary
strikes. This balances the impact on secondary employers with the effect on the primary
employer's business.
• Facts:
• In February 2019, AMCU issued notices of secondary strike action on ten mining
companies to support a strike at Sibanye Stillwater over wages. The secondary strike was
planned for seven days starting on 28 February 2019. The targeted companies sought
urgent interdicts to prevent the secondary strikes, arguing they were unprotected. The
Labour Court (LC) agreed that the procedural requirements were met but focused on the
reasonableness under s 66(2)(c), ultimately finding the secondary strikes unreasonable
and unprotected due to disproportionate harm to secondary employers.
• The Labour Appeal Court upheld the LC's decision, considering the issue moot since the
primary strike had ended. AMCU appealed to the Constitutional Court (ConCourt), which
agreed to hear the case despite its mootness for clarification purposes.
• CC held:

1. Proportionality and Reasonableness**: Section 66(2)(c) imports the principle of proportionality,

ensuring secondary strikes are reasonable in relation to their impact on both primary and secondary
employers.

2. Effect on Primary Employer**: Secondary strikes must have a potential effect on the primary
employer's business.

3. Protection for Secondary Employers**: Proportionality and reasonableness safeguard secondary

employers who do not have procedural protections like primary employers.

Conclusion:
The CC found that the secondary strikes in this case were unreasonable because they did not affect the
primary employer and caused disproportionate harm to secondary employers. The appeal was
dismissed, and each party was ordered to bear its own costs.

Dispute Resolution

• Explain the difference between a dispute of right and a dispute of interest.

• Explain the role of the CCMA and bargaining councils in the dispute resolution
process.
• Explain the processes of conciliation, arbitration, con-arb, and pre-dismissal
arbitration.
• Discuss whether employees are entitled to be represented by a legal representative
during conciliation and arbitration.
• Discuss the role played by the Labour Court in dispute resolution.
• Discuss the grounds for review of an arbitration award and the review test set out
by the Constitutional Court in Rustenburg Platinum Mines Ltd v CCMA.
• Discuss whether the High Court has jurisdiction to deal with claims stemming from
labour disputes.

B. Compulsory study material

1. Van Niekerk and Smit Law@work (2023) Chapter 17
2. Rule 25 of the CCMA Rules (as amended)
3. Van Eck & Kuhn “Amendments to the CCMA Rules: Thoughts on the Good, Bad
and the Curious” (2019) 40 ILJ 711 (only paragraph 6 of the article that deals with
rule 25).

Dispute Resolution

What is a dispute?
• LRA doesn’t define a dispute in substantive sense
• Def simply states that a disputes includes an alleged dispute
• Def of "matters of mutual interest" = NB when defining labour dispute
• Interpreted by courts as matters that arise in the context of the employment relationship
• Excludes the promotion of social and economic interest
o Trade union calls for the stay away from work in protest against increase in VAT
o This issue does not concern matter of mutual interest between employer and
employees, rather concerns socio-economic interests of workers.
o Excludes purely political disputes: trade union calls for stay away because of
deployment of troops in foreign jurisdiction
• Three subcategories of disputes within the broader category of disputes of mutual interest:
o Disputes that are arbitrable; (e.g. unfair dismissal)
o Disputes that are justiciable; and (e.g. unfair discrimination)
o Disputes that must be resolved by use of economic power (e.g. disputes over which
employees can strike and employers can lock out).
• The LRA does not provide for a differentiation of a dispute of right and a dispute of interest
• Dispute of interests are disputes such as those relating to a wage increase (seeks to create new
rights)
• Dispute of right relates to existing rights (either in statute, contract or collective agreement)
• Both dispute of rights and dispute of interests fall within the scope of matters of mutual interest

The CCMA
• It was set up in order to ensure expeditious, efficient and affordable dispute resolution
• It was regarded as a one stop shop for dispute resolution
• It requires no fees and doesn’t require representation

Main functions of the CCMA:

• To conciliate disputes referred to the CCMA in terms of the LRA;
• If the dispute remains unresolved, to arbitrate the dispute if applicable legislation so requires, or
by the consent of the parties;
• To assist in the establishment of workplace forums; and
 • To compile and publish info and stats about its activities

Conciliation
• Unfair dismissals are referred to the CCMA to be conciliated within 30 days from the date of
dismissal
• ULPs are referred to the CCMA to be conciliated within 90 days from the date of the alleged act
or omission
• Unfair discrimination in terms of the EEA is referred to the CCMA within 6 months from the date
of the alleged act or omission
• Form 7.11 must be completed before a dispute is referred to the CCMA
• Conciliation refers to intervention by an independent 3rd party to resolve the dispute
• It is not binding, confidential and without prejudice
• It amounts to a consensus seeking process

Value of consensus:
• Beneficial to employment relationship to resolve dispute through agreement
• Lessens burden on CCMA if settlement reached at conciliation, no need for arbitration
• Referral to conciliation is a jurisdictional precondition
• The CC affirmed that failure to refer unfair dismissal disputes for conciliation has the
consequence that the LC has no jurisdiction to determine the dispute
• If there is a settlement agreement, it becomes a binding arbitration award which the parties are
obliged to comply with
• If not settled, a certificate of non-conciliation is issued by the CCMA
• This certificate is important for the dispute to be taken further
• No legal representation is permitted during conciliation

Arbitration
• The CCMA arbitrates unresolved disputes in respect of:
o Unfair dismissal: relating to conduct or capacity;
o Unfair dismissal: worker alleges continued employment intolerable
o Worker does not know the reason for the dismissal
o An alleged ULP
o Exercise of org rights
o Interpretation of those collective agreements that do not make provision for dispute
resolution procedures

Other labour legislation also confers arbitration functions on the CCMA:

• Disputes about severance pay in terms of the BCEA
• Failure to pay any amount owing to employee or worker in terms of NMWA, in terms of section
73A of the BCEA
• Arbitration process:
• Referred within 90 days from the date the non-conciliation certificate is issued
• The CCMA will only arbitrate if the certificate is issued
• Parties may:
o Give evidence;
o Call witnesses;
o Cross-examine;
 o Prove concluding arguments
• Employers may request an inquiry by an arbitrator which replaces disciplinary hearing and
arbitration
• Con-arbitration = applies in respect of probation etc.

Legal representation
• In terms of CCMA Rule 25, during conciliation process, parties have no right to legal
representation
• Parties must appear on their own or be represented by a union or employers’ organisation
• During arbitration, parties have the right to legal representation in certain instances
• With disputes regarding unfair dismissal due to misconduct or incapacity, no legal
representation unless the parties and the commissioner agree, or unless the commissioner
allows legal representation
• Factors that the commissioner will consider:
- Nature of the dispute;
- Complexity;
- Public interest; and
- Comparative ability

Netherburn Engineering v Mudau 2009 (LAC)

• The court considered whether the applicant had a constitutional right to be legally represented
in arbitration proceedings
• The court held that there is no such absolute right
• CCMA, Mediation and Arbitration & Others v Law Society of the Northern Provinces
(Incorporated as the Law society of the Transvaal) 2013 (SCA)
o The court dismissed a challenge to the CCMA Rule 25
o It was held not to be unconstitutional because it is sufficiently flexible to allow for legal
representation in certain cases

Bargaining councils
• The most important function is to prevent and resolve labour disputes by means of conciliation
and arbitration
• However, do not have jurisdiction to resolve all labour disputes
• If there is a bargaining council in a specific sector the employee will not be able to refer the
matter to the CCMA
• Disputes that must be conciliated and arbitrated by bargaining councils
• Freedom of association;
• Disputes giving rise to strikes;
• Unfair dismissal/unfair labour practices; and
• Entitlement to severance
• Bargaining councils have to apply to the CCMA for accreditation

Labour court
• This is a specialist court with the same status as a division of the HC
• Section 158 of the LRA sets out the power of the LC to make an appropriate order including:
o An order for urgent interim relief;
o An interdict;
o An order of specific performance;
 o A declaratory order;
o An award of compensation;
o An award of damages; and
o An order for costs

Review of arbitration awards

• There are two categories of defects in arbitration proceedings that are reviewable by the LC in
terms of the LRA
• These categories are:
• First, arbitration awards of the CCMA may be reviewed in terms of section 145
• Second; any other functions performed in terms of the LRA may be reviewed in terms of section
158(1)(g)
• “Defects” of the commissioner that are reviewable in terms of section 145(2)
• Committed misconduct regarding the duties of a commissioner as arbitrator;
• Committed a gross irregularity in the conduct of the arbitration proceedings;
• Exceeded his/her powers as arbitrator; or
• Party to the dispute has improperly obtained the award

Carephone v Marcus (LAC)

• The CCMA is an organ of state and performs administrative action
• Thus the constitutional right to fair administration action broadened the scope of reviews of
arbitration awards
• The LC should not only look at procedural correctness of CCMA awards but must to an extent
consider the merits of the case to determine if reasons given for decision are rationally
justifiable

Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA (CC)

• Although CCMA awards constitute administrative action, PAJA does not apply
• Thus section 33 of the Constitution will also not apply
• Section 145 of the LRA requires that a constitutional standard of reasonableness must be
applied
• Therefore arbitration awards are reviewable if the commissioner’s decision is a decision that a
reasonable decision maker could not reach

Overlapping jurisdiction
• Section 157(1) confers exclusive jurisdiction on the LC and section 157(2) confers concurrent
jurisdiction on the HC
• The LC has exclusive jurisdiction regarding labour disputes and the HC has concurrent
jurisdiction regarding contractual claims in a labour related context
• The case of Chirwa and the case of Gcaba
• Section 157(1) must be interpreted broadly
• Section 157(2) must be interpreted narrowly
• The primary purpose of section 157(2) is to empower the LC to deal with causes of action
founded on provisions if the BOR that arise from employment and labour relations

Sidumo and Another v Rustenburg Platinum Mines:

• Facts:
 o Zandise Sidumo was employed by Rustenburg Platinum Mines to patrol the mine's high
security facility where precious metals are separated from lower grade concentrate.
o He was dismissed by the Mine for failure to apply established search procedures.
Sidumo contested his dismissal and referred the matter to the Commission for
Conciliation Mediation and Arbitration (CCMA) in terms of the Labour Relations Act, 66
of 1995 (LRA).
o At the CCMA Commissioner Moropa found Sidumo guilty of misconduct but not
dishonesty.
o In his outcome the commissioner took into consideration Sidumo clean record of 15
years and awarded him reinstatement with three months compensation subject to a
written warning valid for three months.
o The Mine took the award to the Labour Court for review and to set it aside. The Labour
Court dismissed the application for review.
o The Mine then appealed the Labour Court findings at the Labour Appeal Court (LAC).
The appeal at the LAC was unsuccessful.
o The Mine then took the matter to the Supreme Court of Appeal (SCA) where it was
successful. In the SCA judgment the court held that in deciding unfair dismissal disputes,
commissioners should approach the employers sanction in relation to the misconduct
with a measure of deference because it is the employers function in the first place to
impose a sanction.Cosatu then took Sidumo's matter to the Constitutional Court.
• Const Court held:
o Although CCMA awards are admin action ito s.33 of the Const, PAJA doesn’t apply
because s.145 of LRA is a specialised provision that trumps more generalised provisions
of PAJA
o 'Better approach' is to regard s.145 as 'suffused by Const standard of reasonableness'
o Effect: Award reviewable if Commish's decision is one a reasonable decision -maker
could not reach (NB! Another ground on which a reward can be reviewed

Archer v The Public School Pinelands High School 2020 (LAC)

• The employee was dismissed and lodged an unfair dismissal claim to the CCMA
• The CCMA found the dismissal substantively and procedurally fair
• The employer chose not to review the arbitration award, but lodged an unlawful dismissal
dispute at the LC
• The LC held that one cannot, after unsuccessfully pursuing a case in the CCMA based on an
alleged unfair dismissal, approach the LC on the basis that the dismissal was unlawful
• The LAC disagreed with this decision
• The LAC held that nothing precludes an employee from lodging both a labour law and a
contractual claim
• This is not necessarily contrary to the Chirwa and Gcaba cases

The LAC
• Has the same status as the SCA
• Comprises a Judge President, Deputy Judge President and a number of other judges
• No appeal from the LAC to the SCA, only to the CC

Chirwa and Gcaba:

 • s.157(1) must be accorded expansive meaning while 157(2) (concurrent jur with HC) must be
accorded narrow meaning (primary purpose of s.157(2), not so much to confer jur to HC to deal
with labour and employment disputes but rather to empower LC to deal with causes of action
found on provisions of BOR that arise from employment and labour relations)
• LC and LAC are specialist courts uniquely qualified to handle labour disputes, forum shopping
should be discouraged, and when non compliance with LRA alleged one cannot bypass LRA
remedies and DR provisions by alleging violation of constitutional right

Baloyi v Public Protector

• Case deals with an appeal to CC to determine whether the HC has jur over an alleged unlawful
termination of a fixed term contract of employment
• B was employed by Office of PP on a five year contract. Contract provided for 6 month
probation period of more than 12 months
• Ito the employment contract, if the Office of PP = satisfied with B's level of performance at the
end of the probation period, they could either confirm her appointment or terminate her
employment if not satisfied
• B received a letter from Mr V inviting her to making representations on the confirmation of her
employment contract, which B proceeded to do
• B received further letter from Mr M stating that the Office of PP was unable to confirm her
permanent employment and that her contract would be terminated, reason being that she
wasn’t suitable for the role of COO taking into account her skills, performance and general
conduct iro the position
• B launched urgent application to HC on basis that her termination was unlawful
• Alleged unlawfulness of the termination had 2 aspects: first, the termination amounted to a
breach of contract and secondly it amount to an exercise of public pwr that breached the
principle of legality
• Seeked a declaratory order that the decision to terminate contract was unconstitutional,
unlawful and invalid and that she had fulfilled her obligations ito s.181(2) of the Constitution
• HC dismissed the application on basis that it didnt have jur over the dispute and that it should
be brought before a Labour Court
• CC held:
o HC had erred in dismissing B's application on basis that it was a labour dispute and its jur
wasn’t engaged
o Court asserted both the LRA and Employment Act which expressly recognizes that there
are certain matters iro which the LC and HC enjoy concurrent jur
o s.157(1) read with (2) of the LRA, extend the LC's exclusive jur over an alleged unlawful
termination of a fixed term contract of employment
o Raised a constitutional issue as it involved the interpretation of the section and is thus a
constitutional issue
o Thus, contractual rights exist independently of the LRA and employees aren’t deprived
of CL right to enforce terms of a fixed term contract of employment + the LRA

Van Eck & Kuhn “Amendments to the CCMA Rules: Thoughts on the Good, Bad
and the Curious” (2019) 40 ILJ 711 (only paragraph 6 of the article that deals with
rule 25).
Representation Before the CCMA (Rule 25)
In what we deem to be one of the most significant amendments to the rules, the much debated rule
2544 that regulates representation before
the CCMA has been amended. Since the inception of the CCMA in 1995, the architects of the LRA, rightly
or wrongly, have adopted the policy decision to limit the role of legal practitioners during conciliation
and arbitration proceedings. In the Explanatory Memorandum to the Draft Labour Relations Bill 199545
it was stated:

• ‘Lawyers make the process legalistic and expensive. They are also often responsible for delaying
the proceedings due to their unavailability and the approach they adopt.
• Allowing legal representation places individual employees and small businesses at a
disadvantage because of the cost.’
• The rules differentiate between the admissibility of representatives during the processes of
conciliation and arbitration. It has always been the stance of policy makers that legal
representation should not be permitted during conciliation proceedings at all.
• Before the latest amendments to the rules, rule 25(1)(a) had the effect that during conciliation a
party to the dispute could appear in person or be represented only by directors or employees of
the employer party to the dispute or a member of a close corporation or any employers’
organisation representing the employer party and a member, office-bearer official of a trade
union representing the employee party.
• Apart from streamlining the wording of the rule it remains substantially the same.
• However, in a minor addition to representation during conciliation, a new rule 25(1)(a)(v) directs
that ‘if a party is the department of labour’ it may be represented by ‘any employee or official of
the department of labour’. Although this clarification is to be welcomed, it is mystifying why it
was deemed necessary to include this provision only in respect of the department of labour.
• Surely, in instances where other government departments are party to a dispute, they should
also be permitted to be represented by any employee or official of that department.
• During arbitration, the stance had always been that a party to a dispute had the right to appear
in person or to be represented only by a ‘legal practitioner’ or a person entitled to represent the
party at conciliation proceedings as discussed above.
• The LRA defines a legal practitioner as ‘any person admitted to practice as an attorney or an
advocate in the Republic’. This definition has not changed and it continues to exclude labour
consultants and para-legal officials from representing parties before the CCMA.
• However, in an important development, the rules have now been amended to include candidate
attorneys as persons eligible to represent parties during arbitration. This is a positive and
rational development.
• Until now, candidate attorneys could do no more with their right of appearance certificates than
be nominally present at arbitrations as observers.
• By contrast, attorneys, managers, trade union representatives and employers’ organisation
representatives with little or no legal background are entitled to handle disputes.
• Allowing candidate attorneys — who are mostly legally qualified but lack experience — to
appear in arbitrations constitutes an ideal opportunity for them to cut their teeth. This will also
provide opportunities for impecunious individuals, who would otherwise not be able to afford
experienced attorneys, to enjoy representation.
• The rules do not, however, define what is meant by a candidate attorney and it is suggested that
it is any person who has concluded and registered a candidate attorney’s contract in terms of
the Attorney’s Act.
• Although permitting legal representation during arbitration proceedings, CCMA rule 25(1)(c)
contains important limitations to this right. The rule previously provided that if a dispute related
to the unfair dismissal of an employee and the reason for the dismissal concerned alleged
misconduct or incapacity, legal representatives were excluded from arbitration proceedings.
• This was a significant limitation as the majority of arbitrations before the CCMA dealt with unfair
dismissal disputes in relation to misconduct and incapacity.
• The rule has now been amended to extend this limitation to disputes ‘referred in terms of
section 69(5), 73 or 73A of the BCEA’. It follows that legal practitioners and candidate attorneys
may not automatically represent their clients in disputes involving compliance orders pertaining
to the provisions of the BCEA and the NMWA, and where the employer disputes liability by
referring a dispute to the CCMA in respect of such compliance orders.
• Legal practitioners and candidate attorneys are also excluded from automatic representation
during arbitrations when the director general of the department of labour applies to the CCMA
for a compliance order to be made an arbitration award if the employer has not complied with
the order.
• An employer may also not be legally represented at arbitrations when an employee refers a
dispute to the CCMA for con-arb which relates to the non-payment of the minimum wage.
• Although it may be argued by some that these disputes could constitute complex matters, policy
makers have been consistent in limiting, rather than expanding, the right to legal representation
to new types of disputes.
• As in the past, despite the limitations placed on the presence of legal practitioners, a party may
be legally represented (also by a candidate attorney) if the commissioner and all parties consent
thereto or if the commissioner decides that it will be unreasonable under the circumstances, to
expect a particular party to appear without representation.
• However, in a notable development, the right to be legally represented has now also explicitly
been excluded during facilitations of large-scale retrenchments as contemplated in s 189A(3) of
the LRA.
• Over the years there have been a number of attempts to withdraw the limitations on legal
practitioners during arbitrations before the CCMA.
• In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & another the LAC
considered whether an applicant has a constitutional right to be legally represented in
arbitration proceedings at the CCMA.
• The court confirmed that the Promotion of Administrative Justice Act did not apply to CCMA
proceedings and that in terms of the common law no such absolute right had been developed
• This approach was endorsed by the Supreme Court of Appeal (SCA).
• In CCMA & others v Law Society of the Northern Provinces (Incorporated as the Law Society of
the Transvaal) the court dismissed a challenge to the constitutionality of the rule limiting the
right to legal representation and held that when the LRA was drafted ‘parties to social
compromise were in agreement that legal representation in these cases should not be required
or permitted …. This was part of the system providing speedy and cheap redress to unfair
dismissal’.
• The court concluded that the rule was sufficiently flexible to permit legal representation in
deserving cases. The two cases should, however, be distinguished in one important respect.
• The Law Society case was not so much concerned with the applicant’s right to legal
representation as the legal representative’s right to engage in her or his trade as a lawyer.
• The amended rules have also retained the principle that a commissioner may exclude any
person who is representing an employer party in any proceedings on the basis that the person is
a member of the same employers’ organisation if the commissioner believes that the
 representative joined the employers’ organisation solely for the purpose of representing parties
in the CCMA.
o This principle was introduced to curb the practice of attorneys or quasi-legal
practitioners joining employers’ organisations for the sole purpose of getting a foot in
the door as representatives during arbitrations.

• Despite the limitations on the activities of legal representatives, the

amended rules have clarified the way in which an application should be
brought for legal representation and what criteria should be considered
by the commissioner. This, it is submitted, in a positive manner erodes
the limitations placed on the presence of representative as long as it is in
the interests of justice.
• The new rule 25(6) provides that
‘the commissioner may, on application brought in accordance with rule 31, allow
a person not contemplated in sub-rule (1) to represent a party at arbitration proceedings
before the commission, after considering —
(a) whether it is unreasonable to expect the applicant party to deal with the dispute
without representation, after considering the factors set out in sub-rule (1)(c)(ii)
(a) to (d);
(b) the reason why a person contemplated in Rule 25(1)(b) cannot represent the
applicant party, which includes affordability, if applicable;
(c) the ability of the proposed representative to meaningfully represent the applicant;
(d) whether the proposed representative is subject to the oversight and discipline of
a professional or statutory body;
(e) whether the proposed representative will contribute to the fairness of the
proceedings and the expeditious resolution of the dispute;
(f) prejudice to the other party;
(g) any other relevant factors’.
This addition to the rules is in direct response to the unreported ruling
by Van Niekerk J and the CCMA’s practice note in compliance of
the order that addresses representation, mainly by advice centres, for
indigent employees and is to be welcomed.
• In essence, it amounts to
this. Subject to a commissioner applying her or his mind to any such
request, the commissioner has an unfettered discretion regarding the
category of persons to be permitted during arbitrations. Irrespective
of the representative’s qualifications and professional associations, the
commissioner has freedom of choice to permit representation of a
person as long as it enhances the fairness of the proceedings and the
expeditious resolution of the dispute.

• This is, however, subject to the

bringing of a proper application and the opportunity for the opposing
party to contest such application.
On a practical level this gives effect to what is already occurring at
the CCMA.
• CCMA commissioners generally do permit parties to be
represented in instances where either the parties agree to representation
 or where a substantive application has been lodged.

Summary of the article:

The amendments to Rule 25 of the CCMA address representation before the Commission, particularly
concerning legal practitioners' involvement. Initially, legal representation was limited to avoid making
the process legalistic and expensive, and to prevent disadvantaging employees and small businesses.
The latest amendments retain much of the original rule but introduce a few key changes:

1. Conciliation Proceedings: Representation remains limited to directors, employees, trade union

officials, and employer organization members. A new provision allows the Department of Labour to be
represented by its employees or officials, raising questions about why other government departments
are not similarly included.

2. Arbitration Proceedings: Previously, legal representation was restricted to attorneys and advocates,
excluding labor consultants and paralegals. The amendment now allows candidate attorneys to
represent parties, providing valuable experience and offering affordable representation options.

3. Exclusions in Specific Disputes: Legal representation is still restricted in cases involving unfair dismissal
due to misconduct or incapacity and has been extended to include disputes under sections 69(5), 73, or
73A of the BCEA, as well as certain compliance orders.

4. Large-Scale Retrenchments: Legal representation is explicitly excluded during facilitations of large-

scale retrenchments under s 189A(3) of the LRA.

5. Application for Legal Representation: The amended rules outline how to apply for legal
representation, emphasizing fairness and the expeditious resolution of disputes. Commissioners have
discretion in granting representation, considering factors like the applicant's ability to represent
themselves, the proposed representative's qualifications, and potential prejudice to other parties.

6. Practical Implementation: These changes reflect current practices at the CCMA, where commissioners
typically permit representation when agreed upon by parties or through substantive applications.

Overall, the amendments aim to balance the need for affordable and accessible representation with the
efficient and fair resolution of disputes.