COLLECTIVE LABOUR LAW

INTRODUCTION

428 Generally As explained above,1 collective labour law is governed primarily by statutory provisions, collective
agreements and principles laid down by the courts. However, there is a dynamic interaction between individual
labour law and collective labour law, in particular as regards the settling of labour disputes.2 The contemporary
labour relations dispensation must be seen and understood against the background of the long and difficult history
and development of labour relations, the differing government policies over the past 90 years,3 the complex
domestic socio­political situation and the special status that collective bargaining rights have acquired in the overall
labour relations structure. Such contextualisation facilitates a better understanding of the many problems, apparent
contradictions and other unusual mechanisms and arrangements in South African collective labour law.4
1 See pars 955 ante.
2 Cf Vol 24(2)(3ed) pars 2 et seq post and Van Jaarsveld The Interplay between Common Law and
Statutory Law in Contemporary South African Labour Law (LLD thesis (2007); Du Toit 2008 SALJ 95.
3 See pars 13 et seq post.
4 See Presidential Commission Report Restructuring the South African Labour Market pars 12 et seq;
NEDLAC Report The State of Social and Economic Matters in South Africa 1997­1998 3 et seq; Baskin
1998 ILJ 988; Rautenbach Liberating South African Labour from the Law 2 et seq; Theron 2003 ILJ
1247; Thompson 2003 ILJ 1793; Cheadle 2006 ILJ 663; Thompson 2006 ILJ 704; Hepple and Veneziani
The Transformation of Labour Law in Europe 31­57; Brassey 2012 ILJ 1; Le Roux in Malherbe and
Sloth­Nielsen (eds) Labour Law into the Future 230; Van Niekerk 2013 ILJ 30; Brassey 2013 ILJ 823.

429 New era since 1977 The whole scope of collective labour law raised special public interest in 1977 and again
in 1994 with the appointment of the Wiehahn Commission and the Ministerial Task Team, respectively. Both bodies
made far­reaching recommendations which were later incorporated into legislation.1 A Fact­Finding and Conciliation
Commission of the International Labour Organisation investigated the collective bargaining system in South Africa
and made a number of recommendations which were incorporated into the recommendations of the Ministerial Task
Team in 1995.2
Previously, many international collective labour rights were only recognised in an indirect manner in case law but
this situation changed in 1994 when formal and direct recognition was afforded to these rights in statutory
provisions.3 The foundation for a new labour dispensation, also in respect of collective labour law, was laid and
contained in 1994 in the interim Constitution4 and eventually confirmed with the acceptance and enactment of the
final Constitution.5 The new Constitution entrenched three basic collective rights, namely:
the right to fair labour practices;6
the right to collective bargaining;7 and
the right to strike.8
1 See pars 15­1619­20 ante.
2 See par 18 ante.
3 See pars 2052 ante.
4 Constitution of the RSA 200 of 1993 s 27.
5 See Constitution of the Republic of SA 108 of 1996s 23; Grogan Collective Labour Law 4 et seq.
6 See s 23(1) and Vol 24(2)(3ed) par 5 post.
7 S 23(5) and see pars 20(e) ante 610 post.
8 S 23(2)(c) and see pars 20(b) ante Vol 24(2)(3ed) 155 post.

430 Scope of collective labour law Attention will be given to trade unions and bargaining councils which are the
pivot around which the collective bargaining system turns.1 Employers' organisations will also be touched on as well
as the question of federations of trade unions.2 The establishment of workplace forums to assist employers and
employees in consultation and collective bargaining at workplace (factory) level and otherwise in communicating
with each other will also be addressed.3 However, it must be borne in mind that employers and trade unions or
employees themselves are entitled to negotiate directly with one another, especially in small enterprises. After
discussing the different structures and role players involved in collective bargaining, attention will be given to the
basic requirements regarding collective bargaining.4 The settling of disputes and the different dispute procedures
also form part of collective labour law but will be discussed separately.5
1 See pars 514 et seq post.
2 See pars 510­512 post.
3 See pars 572 et seq post.
4 See pars 614 et seq post.
5 See Vol 24(2)(3ed) pars 1 et seq post.

STATUTORY PROVISIONS REGARDING COLLECTIVE LABOUR LAW

431 Constitutional provisions Section 23 of the Constitution1 protects the following collective labour rights:
(a) the right of every person to fair labour practices;2
 (b) the right of every worker:
(i) to form and join a trade union;3
(ii) to participate in the activities and programmes of a trade union;4 and
(iii) to strike;5
(c) the right of employers:
(i) to form and join an employers' organisation; and
(ii) to participate in the activities and programmes of an employers' organisation;6
(d) the right of every trade union and every employers' organisation:7
(i) to determine its own administration, programmes and activities;
(ii) to organise;8 and
(iii) to form and join a federation;9
(e) the right of every trade union, employers' organisation and employer to engage in collective bargaining;10
and
(f ) the right to participate in peaceful protest.11
The constitutional principle of legality is also recognised in full and applied in labour law.12
1 Constitution of the Republic of SA 108 of 1996. See, in general, NUMSA v Bader Bop 2003 2 BCLR 182
(CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC).
2 S 23(1) and see Vol 24(2)(3ed) par 5 post. See also NEHAWU v University of Cape Town 2003 2 BCLR
154 (CC); 2003 ILJ 95 (CC); Murray v Minister of Defence 2008 6 BLLR 513 (SCA); 2008 ILJ 1369
(SCA); Discovery Health v CCMA 2008 7 BLLR 633 (LC); 2008 ILJ 1480 (LC); "Kylie" v CCMA 2008 ILJ
1918 (LC); Mogothle v Premier of Northwest Province 2009 4 BLLR 331 (LC); 2009 ILJ 605 (LC).
3 See ss 17 23(2)(a); pars 440 et seq post; SANDU v Minister of Defence 2007 ILJ 1909 (CC).
4 See s 23(2)(b); pars 440 498 et seq post; SANDU v Minister of Defence supra.
5 See s 23(2)(c); Vol 24(2)(3ed) par 155 et seq post; AMCU v Chamber of Mines 2017 6 BCLR 700 (CC);
2017 ILJ 831 (CC).
6 See s 23(3); pars 510 et seq post.
7 S 23(4).
8 S 23(4)(b) and see par 454 post; Snyman 2016 ILJ 865; Fergus and Godfrey 2016 ILJ 2211.
9 See s 23(4)(c); par 512 post.
10 See s 23(5); pars 610 et seq post; SANDU v Minister of Defence supra; AMCU v Chamber of Mines
supra; Free Market Foundation v Minister of Labour 2016 ILJ 1638 (GP) par 4.
11 S 17. See Vol 24(2)(3ed) par 190 post; SANDU v Minister of Defence supra.
12 See s 1(c); Free Market Foundation v Minister of Labour supra.

432 The Labour Relations Act The Labour Relations Act 1 covers the following aspects regarding collective labour
law:
(a) the organising of employees into trade unions;2
(b) the acceptance and application of the principle of majoritarianism;3
(c) the organising of employers into employers' organisations;4
(d) the establishment and functions of bargaining and statutory councils;5
(e) the determination and fixing of conditions of employment by means of collective and bargaining
agreements;6
(f ) the establishment and functions of workplace forums;7 and
(g) the prevention and settlement of labour disputes through equitable collective bargaining, conciliation and
arbitration.8
1 66 of 1995.
2 S 1(c). See par 437 et seq post.
3 S 32(3); Free Market Foundation v Minister of Labour 2016 ILJ 1638 (GP); Snyman 2016 ILJ 865.
4 S 1(c). See par 454 et seq post.
5 S 1(d)(i) (ii). See pars 517518 et seq post.
6 S 1(d)(i). See pars 532629 et seq post.
7 S 1(d)(iii). See pars 579 et seq post.
8 S 1(d)(iv) and see pars 629 Vol 24(2)(3ed) 202 237 post.

433 Objects of the Labour Relations Act The Labour Relations Act 1 identifies the following primary objects
dealing with collective labour law:
(a) to provide a framework within which employees and their trade unions, employers and employers'
organisations can:
(i) collectively bargain to determine wages, terms and conditions of employment and other matters of
mutual interest;2 and
(ii) formulate industrial policy;3 and
(b) to promote:
 (i) orderly collective bargaining;4
(ii) collective bargaining at sectoral level;5
(iii) employee participation in decision­making in the workplace;6 and
(iv) the effective resolution of labour disputes.7
1 66 of 1995s 1 and see also par 32 ante. The following sentiments were expressed in respect of the
Labour Relations Act 28 of 1956 (repealed) but are also equally applicable to the current Act: "The
fundamental philosophy of the Act is that collective bargaining is the means preferred by the
legislature for the maintenance of good labour relations and for the resolution of labour disputes": NUM
v East Rand Gold & Uranium Co 1991 ILJ 1221 (A) 1236J­1237A. See also PPWAWU v Macrall Timbers
1999 ILJ 1139 (CCMA); Madlanya & Forster 1999 ILJ 2188 (ARB); NUMSA v Bader Bop 2003 2 BCLR
182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); Davis 1991 ILJ 1181; Cheadle 2006 ILJ 663.
2 Labour Relations Act 66 of 1995s 1(c)(i). See pars 514 et seq post; AMCU v Chamber of Mines 2016 ILJ
1333 (LAC); Snyman 2016 ILJ 865; Fergus and Godfrey 2016 ILJ 2211.
3 S 1(c)(ii) and see par 41 ante.
4 S e e s 1(d)(i); pars 514 603 et seq post; NUM v East Rand Gold & Uranium Co supra; SACTWU v
Sheraton Textiles 1997 ILJ 1412 (CCMA); Jacot­Guillarmod v Provincial Government, Gauteng 1999 ILJ
1689 (T); MIBC v Wolseley Panel Beaters 2000 ILJ 2132 (BCA); AMCU v Chamber of Mines supra; Free
Market Foundation v Minister of Labour 2016 ILJ 1638 (GP); Du Toit 2007 ILJ 1405; Snyman 2016 ILJ
865.
5 S 1(d)(ii) and see also pars 514518552603 post.
6 S 1(d)(iii) and see also par 572 post; Esitang and Van Eck 2016 ILJ 763.
7 See Vol 24(2)(3ed) pars 202 et seq post; Adonis v Western Cape Education Department 1998 ILJ 806
(LC); BCCI (Natal) v COFESA 1999 ILJ 1695 (LAC) (decriminalisation of labour law); Shoprite Checkers
v CCMA 2009 3 All SA 466 (SCA); 2009 7 BLLR 619 (SCA); 2009 ILJ 829 (SCA) (excessive delays in
proceedings); and in general Davis 1980 CILSA 212; Garbers 1994 LRSA 89; Blanpain 1997 ILJ 185;
Arthurs 1997 ILJ 571; Klare 1997 ILJ 588; Baskin 1998 ILJ 986; Langille 1998 ILJ 1002; Strydom 1999
SAMLJ 40; Feys 1999 ILJ 1445; Thompson 2003 ILJ 1793; Cheadle 2006 ILJ 663; Benjamin 2007 ILJ 1.

TRADE UNIONS

DEVELOPMENT OF TRADE UNIONISM

434 General As the South African trade union movement originated and developed out of its English counterpart,1
the development of trade unions in England is of importance to South Africa and must therefore be kept in mind in
order to understand the early development of organised labour better. In 1881 the first trade union was
established in South Africa.2 Trade unions usually tried to enforce better conditions of employment and other
workers' demands by means of strikes. Some of these strikes were successful whilst others ended in failure.3 In
1922 large­scale labour unrest and strikes, accompanied by armed conflict and bloodshed, broke out.4
Against this background and under these circumstances the first Industrial Conciliation Act 5 was passed. For the
first time two fundamental rights of workers, namely the right to unite in an organised manner 6 and, concomitantly,
the right to negotiate collectively about conditions of employment, were recognised.7
1 See par 12 ante.
2 See par 13 ante; Webb in History of Trade Unions 23; Pelling A History of British Trade Unionism (2ed)
7 ­ 2 3 ; K i d n e r T r a d e U n i o n L a w 9 ; L e w i s 1 9 7 6 B r i t i s h J o u r n a l o f I R 1 ; H e p p l e International
Encyclopaedia for Labour Law and Industrial Relations vol 4 "Great Britain" pars 61­63. See also Cole
Introduction to Trade Unionism; Selznick Law Society and Industrial Justice 137.
3 See Horrel (1961) SAIRR 1; Du Toit South African Trade Unions 10; Grey Coetzee Industrial Relations
in South Africa 1; Galt 1975 Natal Univ Law Bulletin 191; par 13 ante.
4 See Du Toit 12­14; Walker and Weinbren 2000 Casualties: A History of the Trade Unions and the
Labour Movement in the Union of SA TUCSA 93; Grey Coetzee 6­10 220­226; par 13 ante.
5 11 of 1924.
6 See pars 13 et seq ante.
7 See pars 13604 et seq post.

435 Botha and Wiehahn Commissions The Commission of Investigation into Industrial Legislation (the Botha
Commission) was appointed after the Second World War to investigate labour legislation as a result of problems in
the organisational structure of trade unions, amongst other things.1 The investigation resulted in new legislation,
which provided new measures with regard to trade unions.2 As a result of labour unrest in 1973 and 1974 certain
improvements were made with regard to labour organisational structures in which striking workers were
concerned.3 Against the background of economic and political considerations 4 the Commission of Investigation into
Labour Legislation (the Wiehahn Commission) was appointed in 1977 to investigate legislation regulating the
labour environment. The investigation resulted in far­reaching new legislative measures being passed to regulate,
amongst other things, trade unions.5
1 See par 14 ante.
2 Industrial Conciliation Act 28 of 1956 (repealed) and see the definition of "employee" and the
requirements in s 4.
3 See par 14 ante.
4 See Wiehahn Report 1.1.1­1.18; par 15 ante.
5 S e e p a r s 15­17 ante. See also Industrial Conciliation Amendment Act 9 4 o f 1 9 7 9; Industrial
Conciliation Amendment Act 95 of 1980; Manpower Training Act 56 of 1981; Labour Relations
Amendment Act 51 of 1982.
436 Ministerial task team A ministerial task team was appointed in 1994 to review labour legislation.1 One of the
task team's most important recommendations was that the registration process of trade unions should be
simplified.2 S e v e r a l t r a d e u n i o n r i g h t s w e r e r e c o g n i s e d i n t h e l a b o u r l e g i s l a t i o n t h a t r e s u l t e d f r o m t h e
recommendations of the task team.3 These are set out in greater detail below.4
1 See pars 18­19 ante where the circumstances and reasons behind its appointment are discussed.
2 See pars 20 ante 474 post.
3 See Labour Relations Act 66 of 1995ss 4­22.
4 See pars 454 et seq post.

437 Role of trade unions "Trade unions" may be defined as "associations of employed persons for collective
bargaining about their conditions of employment and also for the provision of benefits, legal defence and the
promotion of their members' interests by bringing pressure to bear on governments and parliaments and, in certain
cases, by political action".1 This definition illustrates why trade unions are such powerful weapons in the hands of
workers. Given the complex economic circumstances in South Africa, and the fundamentally irreplaceable nature of
labour, the concerted action of workers has become a force in the country's socio­political and economic
dispensation.2
Trade unions play a prominent role in the economic and political sphere and, although their conduct differs from
that of trade unions in Europe,3 serious notice is taken of their views with regard to labour matters.4 In 2000 there
were 536 registered trade unions in South Africa with a total membership of about 3,5 million, representing about
26 per cent of all economically active employees in the labour sector. 5 In comparison with European trade unions
the South African trade unions are relatively few in number.6
1 Encyclopaedia Britannica vol 13 554 and see pars 438 et seq post.
2 See in general the discussions in pars 18 et seq ante regarding trade unions.
3 See Aaron and Wedderburn Industrial Conflict 2­13; Bok 1971 HLR 1400­1409; Kahn­Freund 1970 MLR
241; Kidner 1976 ILJ 90; Hepple 1990 ILJ 645; Brown 1993 ILJ 570. See also Bowers and Honeyball
Textbook on Labour Law 6 et seq; Davies and Freedland Towards a Flexible Labour Market 105 et seq;
Deakin and Morris Labour Law (5ed) 671 705 851 et seq.
4 Apart from trade union representation on the Botha (1948) and Wiehahn (1977) Commissions and the
ministerial task team (1994), organised labour is also represented on NEDLAC; see National Economic
Development and Labour Council Act 35 of 1994s 3(1)(b); par 39 ante; Basson 1983 De Jure 147.
5 See South African Yearbook 2001/2002 171.
6 S e e Wiehahn Report 1.3.17; Miller Trade Unions in South Africa 1970­1980; Oosthuizen 1984 TSAR
142; Landman 1987 MB 92; Hepple 1990 ILJ 645; Brown 1993 ILJ 570; Welch 1996 ILJ 1041; Vettori
2006 De Jure 113.

DEFINITION AND FUNCTIONS

438 Statutory definition The Labour Relations Act 1 defines "trade union" as "an association of employees whose
principal purpose is to regulate relations between employees and employers, including any employers'
organisations".2
1 66 of 1995s 213. See MCISC v Midland Chamber of Industries 1995 ILJ 903 (IC); Nomabunga v Daily
Dispatch 1997 11 BLLR 1519 (CCMA); National Manufactured Fibres Employers Association v Bikwani
1999 ILJ 2637 (LC).
2 See PPWAWU v Metrofile 2001 ILJ 2466 (LC).

439 Functions From the above definition it is apparent that the basic function of a trade union is to regulate
relations between employees, who are members of the trade unions, and their employers or employers'
organisations. In practice, this means that it is a trade union's duty in respect of all its members (unless its mandate
is terminated)1 to:
(a) in general look after the interests of its members,2 including the management of internal union strife and
power struggles between factions within the union;3
(b) negotiate for the most favourable conditions of employment;4
(c) negotiate improvements and adjustments thereof if basic conditions have already been negotiated;5
(d) consult with the employer during the proposed retrenchment of the employee members of the union;6
(e) represent its members in disputes (including disciplinary hearings) and settle those in which they may be
involved.7 The union will be liable to its members if it is in breach of its mandate to represent them professionally
and they suffer damages because of the union's negligent conduct.8 Similarly, if a trade union or its stewards allow
its members to commit violent and unlawful actions during an unprotected strike, the union may be held liable for
damages, and so forth;9
(f ) make representations to the state or the National Economic Development and Labour Council (NEDLAC)
with regard to labour matters;10 and
(g) assist in consumer affairs and actions.11
1 See Mhlongo v FAWU 2007 ILJ 397 (LC); IMATU v Rustenburg Transitional Council 1999 12 BLLR 1299
(LC); Ngcobo v FAWU 2012 ILJ 1337 (KZD) (failure to refer dispute in time to court); Van Jaarsveld
2007 De Jure 384.
2 See IMATU v SALGBC 2010 ILJ 1413 (LC).
3 See City of Johannesburg v SAMWU 2017 ILJ 1342 (LAC); NUM v Impala Platinum 2017 ILJ 1370 (LC)
 (labour unrest and union rivalry).
4 See pars 603 et seq post; Broodryk v SA Airways 1996 ILJ 278 (IC); Mutual & Federal Insurance Co v
BIFAWU 1996 4 BLLR 403 (A); but see Mtuzimele v Coverland Roof Tiles 1996 7 BLLR 889 (IC); SASBO
v Standard Bank of SA 1998 2 BLLR 208 (A) (right to negotiate on behalf of employees not absolute);
Blyvooruitzicht Gold Mining Co v Pretorius 2000 7 BLLR 751 (LAC) (authority to represent); Ndlovu v
SACCAWU 2011 ILJ 697 (LC) (no duty of care owed by union to members regarding bargaining with
employer); City of Johannesburg v SAMWU 2017 ILJ 1342 (LC) (power struggle within trade union
rendering duty of employer to bargain collectively impossible); Du Toit 1995 ILJ 798; Grogan 1997 EL
79; Du Toit 2007 ILJ 1405; Fergus 2008 ILJ 2386.
5 See Labour Relations Act 66 of 1995s 14(4); s 213 sv "trade union" and "collective agreement"; pars
629 et seq post; AEU v Minister of Labour 1965 4 SA 94 (W) 97.
6 Pretorius v Blyvooruitzicht Gold Mining Co 1999 I L J 2917 (LC); NEHAWU v Central University of
Technology: Free State 2009 ILJ 1261 (O) (no locus standi); UPUSA v Maxiprest Tyres 2009 ILJ 1379
(LC) (evidential problems).
7 S 200(1); FAWU v Ngcobo 2013 ILJ 3061 (CC). Trade unions may exercise special functions in cases of
disputes between employees and employers. In this regard, it was stated in AEU v Minister of Labour
1949 4 SA 908 (A) 910: "The whole idea underlying the trade union system . . . is that the trade union
concerned should act as the spokesman of its members whenever a dispute arises between employers
and employees." See also Cape Town Municipality v Minister of Labour 1965 4 SA 770 (C); Marievale
Consolidated Mines v President of the Industrial Court 1986 ILJ 152 (T); NUM v Free State Consolidated
Gold Mines Operations (President Steyn Mine) 1989 ILJ 1117 (IC); CCAWUSA v Game Discount World
1991 ILJ 126 (LAC); FAWU v Pietersburg Milling Co 1995 ILJ 1497 (LAC); Western Platinum v Maytham
1995 I L J 1526 (ALC); Moloi v Euijen 1999 I L J 2829 (LAC); NACW v Oranje Mynbou en Vervoer
Maatskappy 2000 2 BLLR 196 (LC); NEWU v Mtshali 2000 ILJ 1166 (LC); NUMSA v CCMA 2000 11 BLLR
1330 (LC) (officials representing trade union); NUM v Hernic Exploration 2001 ILJ 203 (LC); TGWU v
Coin Security Group 2001 4 BLLR 458 (LC); Mokoena v Mittal Steel SA 2007 ILJ 1391 (BCA) (union no
locus standi); Mokgata v FAWU 2007 I L J 2696 (T) (failure to provide assistance); NUM v Geffers
Diamond Cutting Works 2008 ILJ 1227 (LC) (union not acting in interests of members); SACCAWU v
Ellerine Holdings 2009 ILJ 2476 (LC) (conduct of union in court); Solidarity v Atlantis Forge 2010 ILJ
563 (FS) (winding­up of employer); NEWU v CCMA 2011 (deregistration dispute); Fakunde v Kwikot
2013 ILJ 2024 (LC); SATAWU v Transnet Portal Terminals 2014 ILJ 2578 (BCA); Bidvest Food Services
v NUMSA 2015 I L J 1292 (LC) (organisational rights); S A A v N T M 2016 I L J 2128 (LC) (collective
agreement ­ dispute within trade union); Erasmus v Fidelity Security Services 2016 ILJ 2168 (CCMA)
(unregistered union).
8 NEHAWU v Vanderbijlpark Society for the Aged 2011 ILJ 1959 (LC) (delayed referral of dispute);
Ngcobo v FAWU supra (dispute referred out of time to court by trade union); FAWU v Ngcobo 2013 ILJ
1383 (SCA) (union liable); FAWU v Ngcobo 2013 ILJ 3061 (CC); Marcus 1990 ILJ 21; Kahanovitz 1999
ILJ 856; Landman 2000 ILJ 101.
9 See s 68(1); In2Food v FAWU 2013 ILJ 2589 (LC) (union fined R500 000); FAWU v In2Food 2014 ILJ
2767 (LAC); Rycroft 2013 ILJ 2499.
10 Inter alia through its membership of NEDLAC. See National Economic Development and Labour Council
Act 35 of 1994s 5(2) and par 41 ante.
11 See SAMWU v City of Cape Town 2005 ILJ 1606 (C) (local government affairs). Du Toit South African
Trade Unions 159 states: "The objectives and functions of trade unions centre around the economic
and social well­being of the workers. The social aspect has gained in importance over the years,
inversely proportional to the decline in economic deprivation. So much so, that the union can today be
regarded as a social institution, besides being occupied with economic matters." See also Imrie A
Wealth of People 128; Hepple 1990 ILJ 645; Slabbert et al Managing Industrial Relations in South Africa
2000 4­5; Vettori 2005 SAMLJ 295. Regarding the management of pension funds by trade unions, see
MacKenzie 2010 ILJ 789.

RIGHT TO ASSOCIATE

440 International law The right to associate is an internationally acknowledged right 1 which was confirmed as
follows by the International Labour Organisation: "Employees and employers without any distinction whatsoever
shall have the right . . . subject only to the rules of the organisation concerned, to join the organisation of their own
choosing without previous authorisation."2
1 See MWASA v Die Môrester & Noord­Transvaler 1990 ILJ 703 (IC); MWASA v Die Môrester & Noord­
Transvaler 1991 ILJ 802 (LAC); Nomaqumbe v Multi Office 1992 ILJ 152 (IC); Wiehahn Report 5.2.5;
Von Prondzynski Freedom of Association and Industrial Relations: A Comparative Study 2; Basson
1991 SAMLJ 183; Welch 1996 ILJ 1041.
2 ILO Convention 87 of 1948 art 2. See also ILO Convention 98 of 1949 art 1(2)(a). See further Lesotho
Union of Public Employees v Speaker of the National Assembly 1997 11 BLLR 1485 (LesHC); NUMSA v
Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); Budeli 2009 De Jure
136.

441 South Africa In South Africa the right of employees to associate1 freely is acknowledged in the Constitution2
and in the Labour Relations Act.3 Every worker is entitled to:
(a) participate in the founding of a trade union;4 and
(b) join a trade union of his or her choice.5
1 Regarding the right not to associate, see par 442 post. This right is different from the right to organise,
see par 454 post; OCGWU v Total SA 1999 ILJ 2176 (CCMA).
2 Constitution of the Republic of SA 108 of 1996ss 18 23(2)(a) (b). See also UAMAWU v Fodens (SA)
1983 ILJ 212 (IC); NAAWU v Atlantis Diesel Engines 1989 ILJ 948 (IC); NAAWU v ADE 1990 ILJ 342
(IC); Keshwar v SANCA 1991 ILJ 816 (IC); Cronje v United Cricket Board of SA 2001 JOL 9033 (T);
 2001 ILJ 2577 (T); SANDU v Minister of Defence 2007 ILJ 1909 (CC); Landman 1990 AJ 91, 1995 CLL
16; Basson 1991 SAMLJ 170 309; Budeli 2010 Obiter 16; Molusi 2010 Obiter 156.
3 66 of 1995: s 4. See also WUSA v Crouse 2005 ILJ 1737 (LC).
4 S 4(1)(a).
5 S 4(1)(b). See Oostelike Gauteng Diensteraad v Tvl Munisipale Pensioenfonds 1997 ILJ 68 (T); 1999
ILJ 2265 (CC); Theron v FAWU 1997 ILJ 1046 (LC); SA Defence Union v Minister of Defence 1999 ILJ
299 (T); 1999 ILJ 2265 (CC); IMATU v Rustenburg Transitional Council 1999 12 BLLR 1299 (LC) (right
of senior manager to join a trade union); Nkutha v Fuel Gas Installations 2000 I L J 218 (LC)
(victimisation because of union membership); FAWU v The Cold Chain 2007 ILJ 1593 (LC) (manager's
right to join union); Le Roux 2000 Contemp LL 58; Grogan 1999 EL 5; Cohen et al Trade Unions and
the Law of South Africa 1­4.

442 Rights of employees and work­seekers Every member of a trade union is entitled to:
(a) participate in the activities of the trade union;1
(b) participate in the election of the officials and office­bearers;2 and
(c) be appointed as an office­bearer, official or trade union representative.3
There may be no discrimination against any employee when exercising any of his or her rights regarding
association.4 More specifically, no person may require an employee or work­seeker:
(a) not to be or not to become a member of a trade union; or
(b) to terminate his or her membership of a trade union.5
Furthermore, no person may prejudice an employee or a work­seeker because of his or her:
(a) membership of a trade union;6
(b) participation in the founding or activities of a trade union;7
(c) failure or refusal to act unlawfully;8
(d) lawful disclosure of information to another person;9 or
(e) exercising of any rights or participation in any proceedings in terms of the Labour Relations Act.10
No employee or work­seeker may be prevented from exercising any rights or participating in any of the
proceedings in terms of the Act.11 Likewise, no employee or work­seeker may be advantaged for not exercising
such rights or not participating in any such proceedings.12 Any provision in a contract which prevents the exercising
of or limits any of the abovementioned rights is invalid unless permitted by the Act.13
1 Labour Relations Act 66 of 1995s 4(2)(a); Constitution of the Republic of SA 108 of 1996s 23(2)(a) (b).
See also MEWSA v Alpine Electrical Contractors 1997 ILJ 1430 (CCMA); Kroukamp v SA Airlink 2005
ILJ 2153 (LAC).
2 Labour Relations Act 66 of 1995s 4(2)(b).
3 S 4(2)(c) (d). See IMATU v Rustenburg Transitional Council 1999 12 BLLR 1299 (LC) (senior manager).
4 S 5(1). See Nkutha v Fuel Gas Installations 2000 ILJ 218 (LC); Safcor Freight v SAFDWU 2013 ILJ 335
(LAC) (requirements).
5 S 5(2)(a).
6 S 5(2)(c)(i). See also MEWSA v Alpine Electrical Contractors supra; Nkutha v Fuel Gas Installations
supra (victimisation); Kroukam v SA Airlink supra (victimisation); SAFDWU v Safcor Freight 2011 ILJ
415 (LC) (victimisation); Safcor Freight v SAFDWU 335 (LAC).
7 S 5(2)(c)(ii) (iii).
8 S 5(2)(c)(iv).
9 S 5(2)(c)(v).
10 S 5(2)(c)(vi) (vii).
11 S 5(2)(b).
12 S 5(3).
13 S 5(4).

443 Rights of trade unions Certain rights arising out of the freedom of association are granted specifically to
trade unions. Every trade union has the right to:
(a) draw up its own constitution;1
(b) hold elections of office­bearers, officials and representatives;2
(c) plan and organise its administration and activities;3
(d) participate in the establishment of a federation of trade unions and to join one;4 and
(e) to affiliate with international workers' organisations and the International Labour Organisation.5
1 Labour Relations Act 66 of 1995s 8(a)(i).
2 S 8(a)(ii).
3 S 8(b).
4 S 8(c) (d).
5 S 8(e).

CLOSED SHOP PRINCIPLE

444 General The issue of the closed shop1 is related to the right of employees to associate freely.2 The right to
associate freely has as its opposite the right not to associate.3 If a closed shop agreement is applicable in a specific
sector or area, then every employee in that sector is obliged to become a member of the trade union which is party
to the closed shop agreement to which his or her employer is also party.4 Thus, the principle of closed shop
agreements places a restriction on the right to associate freely, in particular on the opposite of this right,5 namely
the right not to have to associate or join a trade union.6 For this very reason closed shop agreements are no
longer accepted in European countries, especially after the 1981 judgment of the European Court of Human
Rights.7
1 Regarding the history and development of closed shop agreements, see ACTWUSA v Veldspun 1993
ILJ 1431 (A).
2 Labour Relations Act 66 of 1995s 4; Constitution of the Republic of SA 108 of 1996ss 18 23(2)(a) (b).
3 The Universal Declaration of Human Rights art 20(2) states: "No one may be compelled to belong to an
association". See also Basson 1991 SAMLJ 326.
4 Labour Relations Act 66 of 1995s 26.
5 See Landman 1990 AJ 95, 1997 ILJ 13.
6 See Albertyn 1981 ILJ 981; Landman 1990 AJ 89; Basson 1991 SAMLJ 326; Olivier and Potgieter 1994
TSAR 289 443; Madima 1994 TSAR 545.
7 See Young, James & Webster v United Kingdom 1981 IRLR 408 where the European Court of Human
Rights regarded the dismissal of employees because of their refusal to join a trade union as a
contravention of s 11 of the European Convention of Human Rights. See also Hepple 1981 ILJ (UK) 78;
Forde 1982 ILJ (UK) 1; Von Prondzynski 1982 Cambridge LJ 256; Welch 1996 ILJ 1041; Landman 1997
ILJ 22.

445 Wiehahn Commission The Wiehahn Commission also considered the controversy regarding the question of
the closed shop and recommended that the practice should be retained "subject to constant surveillance by the
[National Manpower Commission] to prevent abuses".1 However, the government accepted the minority report and
recommended that the practice be phased out, that no further such agreements be permitted and that existing
agreements, depending on the recommendations of the National Manpower Commission, in the interim, be allowed
to continue.2 The National Manpower Commission also investigated the matter and recommended that the status
quo be retained, but that certain safeguards should be incorporated in the system.3 The government accepted the
recommendations with minor amendments and incorporated them in legislation.4
1 See Wiehahn Report 1.3.94 1.3.5 respectively.
2 White Paper on Part 1 6.11.
3 NMC Report regarding Closed Shops in SA (1981) RP 60/1981.
4 See White Paper on Part 5 4.24. See also Labour Relations Act 28 of 1956 s 24(1)(x) (repealed). See
further Le Roux 1980 MB 71­72, 1981 MB 63; Reynders 1982 IRJSA 10; NMC Report regarding Closed
Shops RP 42/1986. The closed shop principle had previously been recognised by the courts: R v
Daleski 1933 TPD 47; S v Paradise Lingerie Manufacturers 1976 4 All SA 170 (T); 1976 4 SA 345 (T).
The amended definition of "unfair labour practice" as contained in the Labour Relations Amendment Act
83 of 1988 limited the conclusion of such agreements; see Mazibuko v Mooi River Textiles 1989 ILJ
875 (IC), although the Labour Relations Amendment Act 9 of 1991 changed the position back to the
pre­1988 situation: Basson 1991 SAMLJ 334. Regarding non­statutory (private) agreements not
concluded in terms of the Labour Relations Act 28 of 1956 s 24(1)(x), see SACWU v Storm Plastics
1993 ILJ 367 (LAC). In ACTWUSA v Veldspun 1993 ILJ 1431 (A) it was stated that a closed shop
agreement was not contrary to public policy. Existing non­statutory agreements are not binding unless
they comply with the requirements of Labour Relations Act 66 of 1995s 26. See Sch 7 item 13(5).

446 Fact­finding and Conciliation Commission and ministerial task team The Fact­Finding and Conciliation
Commission of the International Labour Organisation paid no attention to the question of closed shops in its report
on South African labour practices.1 Similarly, the ministerial task team in its draft negotiation document paid little
attention to the matter. 2 Thus it was surprising to find comprehensive provisions regarding closed shop
agreements in the Labour Relations Act 3 which are not fully reconcilable with the clear provisions of the
Constitution.4
1 See 1992 ILJ 739.
2 See Explanatory Memorandum Government Gazette 16259, 10 February 1995 112 et seq.
3 66 of 1995.
4 See Constitution of the Republic of SA 108 of 1996ss 18 23; SANDU v Minister of Defence 2007 ILJ
1909 (CC). See Landman 1995 CLL 11.

447 Definition of "closed shop agreement" A closed shop agreement is a collective agreement 1 concluded2
between a representative trade union3 and an employer or employers' organisation "requiring all employees
covered by the agreement to be members of the trade union".4 The conclusion of a closed shop agreement will be
appropriate in the following circumstances:5
(i) when a competing or minority trade union has insignificant representation; or
(ii) where only a single union operates.
Where a minority union has substantial representation, a closed shop agreement will not be in the interests of
fairness and labour peace.6
1 See pars 606 et seq post.
2 Parties not compelled to conclude agreement: SATAWU v Northwest Star 2008 ILJ 224 (BCA).
3 See par 448 post.
 4 Labour Relations Act 66 of 1995s 26(1). See also Veldspun v ACTWUSA 1991 ILJ 62 (SE); 1992 ILJ 41
(E); MWASA v Die Môrester & Noord­Transvaler 1991 ILJ 802 (LAC); ACTWUSA v Veldspun 1993 ILJ
1431 (A); Landman 1997 ILJ 13; Vettori 2005 SAMLJ 295.
5 See SATAWU v Northwest Star supra.
6 Ibid.

448 Definition of "representative trade union" "Representative trade union" is defined as a registered trade
union, or two or more registered trade unions acting jointly, whose members are a majority of the employees
employed:
(a) by an employer in a workplace;1 or
(b) by the members of an employers' organisation in a sector 2 and area in respect of which the closed shop
agreement applies.3
1 Labour Relations Act 66 of 1995s 26(2)(a). For the definition of "workplace" see s 213.
2 Ie an industry or service: s 213 sv "sector".
3 S 26(2)(b).

449 Requirements for closed shop agreement Such an agreement is binding only if:
(a) a ballot has been held of the employees to be covered by the agreement;1
(b) two­thirds of the employees who voted have voted in favour of the agreement;2
(c) no provision in the agreement requires membership of the representative trade union before employment
commences;3 and
(d) it provides that no deductions in favour of a trade union may be:4
(i) paid to a political party as an affiliation fee;
(ii) contributed to a political party or person standing for election to any political office; or
(iii) u s e d f o r a n y e x p e n d i t u r e t h a t d o e s n o t a d v a n c e o r p r o t e c t t h e s o c i o ­ e c o n o m i c i n t e r e s t o f
employees.5
1 Labour Relations Act 66 of 1995s 26(3)(a). See also "Guidelines in balloting regarding closed shop
agreements" published by the CCMA in Government Gazette 18936, 5 June 1998.
2 S 26(3)(b).
3 S 26(3)(c).
4 S 26(3)(d).
5 See also s 26(8) which allows the deduction of agency fees in respect of employees refusing to join a
trade union party to a closed shop agreement. A closed shop agreement may be concluded with a
registered trade union not representative of the employees but complying with certain prescribed
requirements: s 26(4).

450 Dismissal of employees An employer is entitled to dismiss an employee:

(a) if he or she refuses to join a trade union which is party to a closed shop agreement;1 or
(b) whose membership of a trade union which is party to a closed shop agreement has been refused2 o r
terminated.3
A union may refuse an employee membership or expel him or her from the union if the refusal or expulsion
complies with the union's constitution4 and the reason for the refusal or expulsion is fair. 5 However, an employee
may not be dismissed because of his or her refusal to become a member of a trade union which is party to such an
agreement, if he or she:
(a) is already employed by the employer at the time when the agreement takes effect;6 or
(b) refuses on grounds of conscientious objection.7
If the Labour Court finds that an employee has been dismissed unfairly because of his or her refusal of trade
union membership or expulsion from the trade union, all the ordinary principles in respect of unfair dismissals are
applicable but compensation may be awarded against the union.8
1 Labour Relations Act 66 of 1995s 26(6)(a).
2 S 26(6)(b).
3 S 26(6)(c).
4 S 26(5)(a).
5 S 26(5)(b). A fair reason may entail con­duct which undermines the collective exercising of its rights
by the trade union. Furthermore, it means that trade union membership may not be denied to an
employee unless these two requirements have been met. See also Landman 1997 ILJ 22.
6 S 26(7)(a).
7 S 26(7)(b).
8 S 26(9).

451 Admission of non­representative trade union to agreement A non­representative trade union which is
registered and has a significant interest in or a substantial number of employees covered by a closed shop
agreement may apply to be admitted as a party to the agreement.1 The employer must convene a meeting
between the trade union and all the parties within 30 days of the notice to apply for admission.2 If the application
is not successful, the trade union may refer the dispute to the Commission for Conciliation, Mediation and Arbitration
for conciliation.3 If the dispute still remains unresolved,4 any party may refer the dispute to the Labour Court for
adjudication.5
1 Labour Relations Act 66 of 1995s 26(10). Notice of the application for admission must be given to all
the parties to the agreement.
2 S 26(10).
3 S 26(11). See also s 26(12).
4 See s 26(13).
5 S 26(14).

452 Cancellation of closed shop agreement If:

(a) one­third of the employees who are members of a closed shop agreement sign a petition for the
termination of the closed shop agreement;1 and
(b) three years have lapsed since the commencement of the closed shop agreement or the last ballot for
termination,2
the representative trade union must conduct a ballot of the employee members of the closed shop agreement.3 If a
majority votes for termination, the agreement will be terminated.4
1 Labour Relations Act 66 of 1995s 26(15)(a).
2 S 26(15)(b).
3 S 26(15).
4 S 26(16). See also s 26(17).

SETTLEMENT OF DISPUTES

453 If a dispute should arise regarding the exercise or application of any of the rights to associate, it may be
referred by a party to the dispute in writing to a bargaining council with jurisdiction1 or to the Commission for
Conciliation, Mediation and Arbitration if there is no council with jurisdiction.2 The council or the commission must try
to settle the dispute but, if it is unsuccessful, the dispute may be referred to the Labour Court for adjudication.3
1 Labour Relations Act 66 of 1995s 9(1)(a).
2 S 9(1)(b).
3 S 9(3) (4). See also ss 9(2) and 10 which prescribe the burden of proof during proceedings regarding
an alleged infringement of the freedom of association.

RIGHT TO ORGANISE AND ORGANISATIONAL RIGHTS OF TRADE UNIONS

OVERVIEW

454 International position The right to organise freely,1 that is to establish trade unions and organise them, is
recognised internationally, and is regarded as one of the fundamental collective rights of employees.2 The right is
recognised by the International Labour Organisation as follows: "Employees and employers, without any distinction
whatsoever, have the right to establish organisations."3
1 The right to organise should be distinguished from the right to associate, as both rights cannot without
any qualification be indicated under the generic term "right to associate". See OCGWU v Total SA 1999
ILJ 2176 (CCMA); Wiehahn Report 1.3.43 5.2.5; par 440 ante; Basson et al Essential Labour Law vol 2
25­34.
2 See Le Roux 1993 Contemp LL 109.
3 ILO Convention 87 of 1948 art 2. See also ILO Convention 98 of 1949 arts 1(2)(b) 2(1) 11; NUMSA v
Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); Esitang and Van Eck
2016 ILJ 763.

455 South Africa In South Africa the right to organise is also recognised, although up until 1981 it was subject to
various restrictions.1 Since then, however, all employer and employee groups have been entitled to organise, and
the right is in fact exercised extensively in the South African labour arena.2 The Constitution3 recognises the right
of every employer and every employee to organise, and the Labour Relations Act 4 contains detailed provisions with
regard to this fundamental labour right, which will be discussed below.5
1 See pars 15­17 ante.
2 See Wiehahn Report 5.4.25.2; 1995 Annual Report Department of Labour 13; Basson 1991 SAMLJ 181­
2.
3 Constitution of the Republic of SA 108 of 1996s 23(3) (4). See also SADU v Minister of Defence 1999
ILJ 299 (T); SA Defence Union v Minister of Defence 1999 ILJ 2265 (CC); NUMSA v Bader Bop 2003 2
BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); SANDU v Minister of Defence 2007 ILJ
1909 (LC); FAWU v Ngcobo 2013 ILJ 3061 (CC).
4 66 of 1995: ss 4(2) 8(b) 11­22.
5 See par 456 post and also Le Roux 1993 Contemp LL 107.
 ENTITLEMENT TO ORGANISATIONAL RIGHTS

456 Significance and definition of "representative trade union" In terms of the 1995 dispensation, only a
representative trade union acquires organisational rights, such as access to the workplace, the right to conduct
trade union activities, deduct union dues, and so forth, to which other trade unions are not entitled.1
"Representative trade union" is defined2 as "a registered3 trade union, or two or more registered trade unions
acting jointly, that are sufficiently representative 4 of the employees employed by an employer in a workplace".5 If a
recognition agreement has not been concluded with a trade union, then an employer is only compelled to bargain
with or grant organisational rights to a representative union.6
1 See pars 463­473 post; NUMSA v Feltex Foam 1997 ILJ 1404 (CCMA). See also FAWU v Wilmark 1998
ILJ 928 (CCMA) (scope of registration of a trade union); SACCAWU v Speciality Stores 1998 ILJ 557
(LAC); SACTWU v Marley (SA) 2000 ILJ 425 (CCMA); NUCW v Oranje Mynbou & Vervoer Maatskappy
Bpk 2000 2 BLLR 196 (LC); NUMSA v Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003
I L J 305 (CC) (minority trade union); DUSU v Squires Foods 2008 I L J 2815 (CCMA) (scope of
registration limited). See also Cohen et al Trade Unions and the Law in South Africa 10­19; Fergus and
Godfrey 2016 ILJ 2211.
2 Labour Relations Act 66 of 1995s 11.
3 Regarding the requirements for registration, see par 478 post.
4 Regarding the requirement of representativeness, see par 462 p o s t ; s 21(8) ( 9 ) ; Mtuzimele v
Coverland Roof Tiles 1996 7 BLLR 889 (IC); UPUSA v Komming Knitting 1997 4 BLLR 508 (CCMA);
SACTWU v Sheraton Textiles 1997 5 BLLR 662 (CCMA); NPSU v National Negotiating Forum 1999 4
BLLR 361 (LC); OCGWU v Total SA 1999 ILJ 2176 (CCMA); NMFA v Bikwani 1999 I L J 2637 (LC);
SACTWU v Marley (SA) 2 0 0 0 I L J 425 (CCMA) (requirements); N U M S A v B a d e r B o p supra. The
employer is entitled to proof of the extent of membership of the trade union: Nomaqumbe v Multi
Office 1992 ILJ 152 (IC). See also FWCSA v Bokomo Mills 1994 ILJ 1371 (IC); Olivier 1996 ILJ 803;
Grogan (1996) 13(2) EL 27; Macum (1997) 1 LDD 69; Kruger and Van Eck 1997 De Jure 152; Esitang
and Van Eck 2016 ILJ 763.
5 See s 213 sv "workplace"; par 460 post; Speciality Stores v CCAWU 1997 ILJ 992 (LC). See also FAWU
v Wilmark supra; SACCAWU v The Hub 1999 ILJ 479 (CCMA); OCGWU v Total SA supra; OCGAWU v
Volkswagen of SA 2002 BALR 60 (CCMA); NUMSA v Bader Bop supra. Cf also FWCSA v Bokomo Mills
1994 ILJ 1371 (IC); CWU v Daily Dispatch 2010 ILJ 1496 (CCMA).
6 S e e s 11; SAUJ v SA Broadcasting Corporation 1999 I L J 2840 (LAC); NUCW v Oranje Mynbou &
Vervoer Maatskappy Bpk 2000 2 BLLR 196 (LC) and regarding recognition agreements par 642 post;
BIAWU v Mutual & Federal Insurance Co 2002 7 BLLR 609 (LC).

457 Categories of representivity The following approaches (categories) are pertinent in determining the
representivity of a trade union:
(a) Majoritarian approach: The employer need only negotiate with the trade union which enjoys the support of
the majority (50,1 per cent or more) of the employees.1
(b) Pluralist approach: In terms of the pluralist approach the employer must negotiate with every trade union
that enjoys substantial support or which is sufficiently representative of the employees. This will usually be the case
if a trade union has the support of about 30 per cent or more of the employees.2
(c) The all­comers approach: The all­comers approach implies that the employer is compelled to negotiate with
every trade union represented in the undertaking, however small its support might be.3
The Labour Relations Act 4 recognises both the majoritarian and pluralist approaches by providing that the
pluralist approach to trade union representation must be followed in case of:
(a) the exercising of certain organisational rights;5 and
(b) membership of a bargaining council.6
The majority representation requirement of a union must be complied with in the following instances:
(a) the election of shop stewards;7
(b) disclosure of relevant information;8
(c) conclusion of an agency shop agreement with a trade union;9
(d) conclusion of a closed shop agreement;10
(e) extension of collective agreements to non­parties of a bargaining council;11 and
(f ) establishment of a workplace forum.12
1 See par 458(a) post; SA Polymer Holdings v Llale 1994 ILJ 277 (LAC); NUMSA v Feltex Foam 1997 ILJ
1404 (CCMA); FGWU v Irvin & Johnson 1999 ILJ 1547 (LC); SA Post Office v CWU 2010 ILJ 997 (LC);
Snyman 2016 ILJ 865.
2 See par 458(b) post; Mutual & Federal Insurance Co v BIFAWU 1996 ILJ 241 (A); UPUSA v Komming
Knitting 1997 4 BLLR 508 (CCMA); OCGWU v Total SA 1999 ILJ 2176 (CCMA).
3 See par 458(c) post; SAUJ v SA Broadcasting Corporation 1999 ILJ 2840 (LAC); NUMSA v Bader Bop
2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); Esitang and Van Eck 2016 ILJ 763.
4 66 of 1995.
5 See pars 463­473 post; NUMSA v Feltex Foam 1997 6 BLLR 798 (CCMA); Snyman 2016 ILJ 865.
6 See s 29(11)(b)(iv) and par 514 post; Du Toit 1993 ILJ 1167.
7 S 14(1).
8 S 16(1) and see par 471 post; Du Toit 1993 ILJ 1167.
9 S 25(2) and see pars 468­469 post.
 10 S 26(2). See also pars 444­452 ante; BIFAWU v Mutual & Federal Insurance Co 1994 ILJ 1031 (LAC).
11 See s 32(1) and par 532 post.
12 S 78(b) and see par 580 read with par 579 post.

458 Acquisition of organisational rights A trade union can acquire organisational rights in one of the following
ways:1
(a) in terms of section 21 of the Labour Relations Act;2
(b) in terms of a collective agreement between a trade union and an employer;3 or
(c) as member of a bargaining or statutory council.4
1 See, in general, NUMSA v Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305
(CC); Edgars Consolidated Stores v FCRAWU 2004 ILJ 1051 (LAC).
2 66 of 1995. See par 459 post.
3 See par 460 post.
4 See par 461 post.

459 Organisational rights in terms of section 21 A registered trade union which intends to organise in a
workplace1 may notify the employer in writing of its intention2 and must furnish the employer with a certificate of
registration containing the prescribed information.3 Within 30 days of having received the notice, the employer must
convene a meeting with the trade union in order to conclude a collective agreement regarding the exercising of its
organisational rights.4
1 See Labour Relations Act 66 of 1995s 213 sv "workplace"; par 456 fn 5 ante; SACCAWU v Speciality
Stores 1998 ILJ 557 (LAC); GIWUSA v Bidvest TMS Group 2016 ILJ 508 (CCMA).
2 S 21(1). See SACWU v Technical Systems 1997 7 BLLR 948 (CCMA); HHS v Seedat 1999 11 BLLR 1153
(LC).
3 S 21(2). S e e SACTWU v Sheraton Textiles 1997 ILJ 1412 (CCMA); HHS v Seedat supra; NUMSA v
Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); TOWU v Workforce
Group Holdings 2006 ILJ 2198 (CCMA); SACCAWU v King Edward VII School 2008 ILJ 204 (CCMA)
(scope of registration limited).
4 S 21(3). See also MWASA v Vibrant Promotions & Distributors 1999 ILJ 1125 (CCMA); NUM v Paintrite
Contractors CC 2008 ILJ 806 (CCMA). These collective agreements are better known as recognition
agreements. See pars 642 et seq post; SACWU v Technical Systems supra.

460 Organisational rights in terms of collective agreement An employer and a registered trade union whose
members form a majority of the employees in a workplace may conclude a collective agreement 1 in terms of which a
threshold of representativeness regarding organisational rights is established.2 Such an agreement will be binding
only if the threshold applies equally to all registered unions involved.3
1 Labour Relations Act 66 of 1995s 18(1).
2 Or if they are party to a bargaining council: s 18(1). See NPSU v National Negotiating Forum 1999 ILJ
1081 (LC); SAUJ v SA Broadcasting Corporation 1999 11 BLLR 1137 (LAC) (membership below
threshold); OCGAWU & Volkswagen SA 2002 ILJ 220 (CCMA); NUMSA v Bader Bop 2003 2 BCLR 182
(CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); SAPO v Nowosenetz 2013 ILJ 1604 (LC) (novation of
old agreement); UASA v BHP Billiton ECSA 2013 ILJ 2118 (LC).
3 S 18(2). See in general Edgars Consolidated Stores v FCRAWU 2004 ILJ 1051 (LAC).

461 Organisational rights of members of bargaining and statutory councils Registered trade unions which are
members of a bargaining or statutory council have access and deduction rights to all workplaces within the scope of
the council, irrespective of their representativeness.1 An employer or employers' organisation and a trade union
may also conclude a collective agreement specifying what organisational rights may be exercised by the union and
any requirements subject to which they may be exercised.2
1 Labour Relations Act 66 of 1995s 19.
2 S 20. See NUMSA v Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC).

462 Disputes regarding representativeness and exercise of rights If a collective agreement is not concluded,
the dispute may be referred to the Commission for Conciliation, Mediation and Arbitration,1 which must attempt to
resolve it.2 If unresolved, the dispute may be referred to arbitration.3 If the dispute concerns the question of
whether the trade union is representative, the Labour Relations Act 4 prescribes that the commissioner must seek
to:
(a) minimise the proliferation of union representation in a workplace and encourage a system of a
representative union in the workplace; and
(b) minimise the financial and administrative burden of requiring an employer to grant organisational rights to
numerous unions.
Factors5 the commissioner must consider when determining the "status" of the workplace, include:6
(a) the nature of the workplace;
(b) the nature of the organisational rights which the trade union intends to exercise;
(c) the nature of the sector in which the workplace is located;
 (d) the organisational history of the workplace or any other workplace of the employer; and
(e) the composition of the workforce in the workplace taking also into account the extent to which non­
standard employees are employed.
The commissioner may also withdraw the organisational rights of a trade union if it has ceased to be a
representative trade union.7 A commissioner may in an arbitration in terms of section 22(4) grant a trade union that
does not have the majority of employees as its members organisational rights in terms of sections 14 and 16.8 He
or she may also grant specific organisational rights9 t o a t r a d e u n i o n t h a t d o e s n o t m e e t t h e t h r e s h o l d
requirements of representativeness prescribed by a collective agreement.10 In order to determine the membership
or support of a trade union, a commissioner may make inquiries, conduct a ballot and take any other information
into account.11
An employer may also apply for the withdrawal of the organisational rights of a trade union that he or she
alleges is no longer representative.12 A trade union is also entitled to exercise organisational rights in respect of its
temporary employment service members on the premises of the employer or the client.13
1 Labour Relations Act 66 of 1995s 21(4). See MWASA v Vibrant Promotions & Distributors 1999 ILJ 1125
(CCMA); SACTWU v Wilbart Projects 2000 ILJ 430 (CCMA).
2 See s 21(5) (6).
3 S 21(7). See also NGWU v Mr Clean 1998 ILJ 399 (CCMA); TOWU v Workforce Group Holdings 2006
ILJ 2198 (CCMA).
4 See s 21(8)(a)(i) (ii); NUMSA v Feltex Foam 1997 ILJ 1404 (CCMA); SACTWU v Sheraton Textiles 1997
ILJ 1412 (CCMA); SACTWU v Marley (SA) 2000 ILJ 425 (CCMA).
5 S 21(8)(b)(i)­(v) s 213 sv "workplace".
6 Disputes regarding what constitutes a workplace must be referred to the Labour Court: Speciality
Stores v CCAWU 1997 ILJ 992 (LC); SACCAWU v Speciality Stores 1998 I L J 557 (LAC). See also
SACTWU v Sheraton Textiles supra; NUMSA v Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103
(CC); 2003 ILJ 305 (CC); SAA v NTM 2016 ILJ 2128 (LC) (faction of trade union).
7 S 21(8)(c).
8 S 21(8A). See also the conditions to be complied with in s 21(8A)(a) (b).
9 See s 21(8C). The rights granted in terms of s 21(8A) lapse if the trade union is no longer the most
representative trade union in the workplace of the employer: s 21(8B).
10 S 21(8C). The granting of the rights is subject to the compliance of certain conditions: s 21(8C)(a) (b).
See also s 21(8D).
11 S 21(9)(a). See also s 21(10); NPSU v National Negotiating Forum 1999 ILJ 1081 (LC).
12 See s 21(11); FCRAW v Edgars Consolidated Stores 2002 ILJ 1801 (LC); Edgars Consolidated Stores v
FCRAWU 2004 ILJ 1051 (LAC); OCGAWU v KLK Landbou 2009 ILJ 2538 (CCMA).
13 S 21(12).

ORGANISATIONAL RIGHTS

463 Appointment of trade union representative If there are at least ten members of a representative trade
union, that is a trade union enjoying the support of the majority of the employees,1 employed at a workplace, then
they are entitled to appoint a trade union representative.2 A formula is provided in the Act to determine the number
of trade union representatives,3 which varies from one to a maximum of 20 representatives.4
1 Labour Relations Act 66 of 1995s 14(1) and see Bader Bop v NUMSA 2002 2 BLLR 139 (LAC); NUMSA v
Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC).
2 S 14(2). The constitution of the trade union will determine the nomination and election of
representatives: s 14(3). See also SACCAWU v Woolworths 1998 ILJ 57 (LC); FAWU v The Cold Chain
2007 ILJ 1593 (LC) (right of manager to hold office in union).
3 "Trade union representative" is defined in s 213 as "a member of a trade union who is elected to
represent employees in a workplace". See also SANAWU v Maluti Crushers 1997 7 BLLR 955 (CCMA).
4 See s 14(2)(a)­(f ). See also SACCAWU v Woolworths supra; SATAWU v Autonet 2000 7 BALR 843
(IMSSA).

464 Functions of trade union representatives An appointed trade union representative may perform the
following functions, namely:
(a) assist employees in grievance and disciplinary proceedings;1
(b) monitor the employer's compliance with the provisions of the Labour Relations Act and applicable collective
agreements;2
(c) report the contravention of provisions of the Act and collective agreements to the employer, his or her
trade union and any responsible authority;3 and
(d) perform any other function agreed to between the employer and the trade union.4
1 Labour Relations Act 66 of 1995s 14(4)(a). Regarding proceedings in the Labour Court, see Callguard
Security Services v TGWU 1997 ILJ 380 (LC); PPWAWU v Metrofile 2001 ILJ 2466 (LC); Manyele v
Maizecor 2002 ILJ 1578 (LC).
2 S 14(4)(b). See also Robertson & Caine v CCMA 2001 I L J 2488 (LC) (searches of employees by
investigating body).
3 S 14(4)(c).
4 S 14(4)(d). See also NUM v Unisel Gold Mines 1986 ILJ 398 (IC) (disciplinary problems in respect of a
shop steward); Matla Coal v NUM 1993 ILJ 766 (ARB) (disputes about the exercise of shaft stewards'
duties); Fulcrum Engineering v Chauke 1997 ILJ 679 (LAC) (intimidation of co­employees).
465 Trade union access to workplace Office­bearers and officials of a representative trade union are entitled to
enter the workplace of the employer to recruit members, to communicate with them and to look after their
interests.1 The trade union is entitled to hold meetings outside working hours with employees on the premises of
the employer. 2 The members may also participate in trade union ballots on the employer's premises.3 However,
these rights are subject to any condition which is reasonable and necessary to protect property and life or prevent
work disruption.4 Thus access rights in the domestic sector 5 do not include the right to enter the home of the
employer unless he or she consents thereto.6
1 Labour Relations Act 66 of 1995s 12(1). See UPUSA v Komming Knitting 1997 4 BLLR 508 (CCMA). See
also in respect of Labour Relations Act 28 of 1956 (repealed) NUTW v Universal Lace & Fabric Mills
1983 ICD 43; Kloof Gold Mining Co v NUM 1987 ILJ 99 (T); SACTWU v Marley (SA) 2000 I L J 425
( C C M A ) . I n SACTWU v Sheraton Textiles 1 9 9 7 5 B L L R 6 6 2 ( C C M A ) a n u m b e r o f d u t i e s a n d
entitlements of trade unions were identified so as to enable them to exercise this right.
2 Labour Relations Act 66 of 1995s 12(2). See also NUM v Buffelsfontein Gold Mining Co 1991 ILJ 346
(IC); Doornfontein Gold Mining Co v NUM 1994 ILJ 527 (LAC) regarding the right of trade unions to
hold meetings on work premises and exercise control in respect of such meetings; UPUSA v Komming
Knitting supra; NUMSA v Ebenspächer SA 2003 ILJ 1704 (LC).
3 S 12(3).
4 S 12(4).
5 See s 17(1) sv "domestic sector".
6 S 17(2)(a).

466 Leave for trade union activities A trade union representative is entitled to take reasonable time off with pay
during working hours, subject to reasonable conditions, to:
(a) perform his or her functions as representative;1 and
(b) receive union organisational training.2
An employee who is an office­bearer of a representative trade union may also take reasonable leave during
working hours to perform his or her duties as office­bearer.3
1 See NACTWUSA v Waverley Blankets 2000 ILJ 1910 (CCMA) (prior permission necessary).
2 Labour Relations Act 66 of 1995s 14(5). See NUMSA v Exacto Craft 2000 ILJ 2760 (CCMA).
3 S 15(1). The trade union and the employer may agree on specific arrangements regarding the number
of days' leave and the number of paid days' leave: s 15(2). See also s 15(3); CWIU v Sanachem 1998
ILJ 1638 (CCMA); NUMSA v Exacto Craft supra.

467 Deduction of union subscriptions An employee who is a member of a representative trade union may
request his or her employer to deduct his or her trade union subscriptions from his or her wage or salary.1 A n
employer receiving such a request must deduct the amount and remit it to the trade union.2 This authorisation may
be revoked by one month's notice in writing.3 The employer must furnish the trade union with certain information
with the monthly remittances.4
1 Labour Relations Act 66 of 1995s 13(1). See UPUSA v Komming Knitting 1997 4 BLLR 508 (CCMA);
NPSU v National Negotiating Forum 1999 ILJ 1081 (LC); SACTWU v Marley (SA) 2000 ILJ 425 (CCMA);
NUM v Paintrite Contractors CC 2008 ILJ 806 (CCMA) (membership).
2 S 13(2). See Photocircuit SA v De Klerk 1989 ILJ 634 (C); Photocircuit SA v De Klerk 1991 ILJ 289 (A);
SACTWU v Maroc Carpets & Textile Mills 1990 ILJ 1101 (IC); Adams v Coin Security Group 1999 ILJ
1192 (LC); Landman 1990 SAMLJ 78. Regarding the position of minority or unregistered trade unions in
the previous dispensation, see UWUSA v SA Stevedores 1994 ILJ 1090 (IC); TWWU v BVB Transport
(Botha Vervoer Bophuthatswana) 1996 ILJ 167 (IC); NEWU v LMK Manufacturing (1) 1997 7 BLLR 896
(LC).
3 S 13(3). S e e Consolidated Frame Cotton Corporation v Sithole 1985 I L J 19 (N) regarding the
revocation of the employer's authority to deduct subscriptions.
4 S e e s 13(5). The information includes the names of all the union members in respect of whom
deductions were made, the amounts deducted and deduction authorisations revoked. Regarding the
previous dispensation, see HOSPERSA v Zuid­Afrikaanse Hospital 1996 9 BLLR 1135 (IC).

468 Agency shop agreement A representative trade union, that is a trade union enjoying majority support from
the employees,1 may conclude an agency shop agreement in terms of which the employer will deduct an agreed
agency fee from the wages of employees who are not members of the trade union but are identified and are eligible
for union membership.2 The philosophy behind the agency shop agreement is that, because non­union employees
derive benefits as the result of the collective bargaining efforts of the majority union, they are compelled to
contribute financially to the majority union.3
1 Labour Relations Act 66 of 1995s 25(2). S e e National Manufactured Fibres Employers Association v
Bikwani 1999 10 BLLR 1076 (LC) and Landman 1996 Contemp LL 1.
2 S 25(1). See also National Manufactured Fibres Employers Association v Bikwani supra (purpose of
agreement); Public Service Bargaining Council v Maseko 2 0 0 1 2 B L L R 2 2 8 ( L C ); SA National
Tuberculosis Association v CCMA 2005 ILJ 1342 (LC) (no compliance with s 25 requirements); SANDU v
Minister of Defence 2007 ILJ 1909 (CC) (prohibition on agency agreements); Maluleke v Johnson Tiles
2008 ILJ 2606 (LC) (purpose of agreement).
3 Maluleke v Johnson Tiles supra.
469 Requirements for valid agreement An agency shop agreement is only valid if it provides that:1
(a) no employee who is not a member of a trade union is compelled to join;2
(b) the agency fee is equal to or less than the trade union subscription;3
(c) the money thus deducted will be paid into a separate account of the trade union;4 and
(d) no agency money will be:
(i) paid to a political party as an affiliation fee;5
(ii) paid to a political party or a person standing for election to a political office;6 or
(iii) used for any purpose other than the advancement and protection of the socio­economic interests of
the employees.7
1 See Labour Relations Act 66 of 1995s 25(3); Greathead v SACCAWU 2001 ILJ 595 (SCA); Solidarity v
Minister of Public Service & Administration 2004 ILJ 1764 (LC) (strict compliance with s 25(3)) ; SA
National Tuberculosis Association v CCMA 2005 ILJ 1342 (LC); UASA v BHP Billiton 2013 ILJ 1298 (LC)
(constitutionality of agency agreements); Landman 2001 ILJ 856.
2 S 25(3)(a).
3 S 25(3)(b)(i). See Cassim 2009 ILJ 791 and s 25(3)(b)(ii) (iii) for other cases.
4 S 25(3)(c). Inspection of the account is also allowed: s 25(6) (7).
5 S 25(3)(d)(i).
6 S 25(3)(d)(ii).
7 S 25(3)(d)(iii).

470 Objections to deductions An employer does not need the permission of an employee to deduct agency fees
from his or her wage.1 A conscientious objector, however, may require the employer to forward his or her agency
fees to the Department of Labour. 2 If an employer or employers' organisation maintains that the trade union is no
longer representative, the trade union must be notified and allowed 90 days to establish the opposite.3 If the trade
union is unsuccessful, the agency shop agreement will terminate.4
1 Labour Relations Act 66 of 1995s 25(4)(a).
2 S 25(4)(b).
3 S 25(8).
4 S 25(9). See also s 25(10).

471 Duty to disclose information1 An employer must disclose all relevant information2 to:
(a) a trade union representative to enable him or her to perform his or her trade union functions effectively;3
and
(b) a representative trade union4 to enable it to consult or negotiate effectively.5
However, the employer is not required to disclose information6 that:
(a) is legally privileged;7
(b) would mean that disclosure would be in contravention of a prohibition in terms of a law or an order of
court;8
(c) is confidential and, when disclosed, may cause substantial harm to the employer or the employee;9 or
(d) is private personal information regarding the employee, unless he or she consents to disclosure.10
A trade union's right to disclosure does not apply in the domestic sector.11
1 S e e B r a n d a n d C a s s i m 1 9 8 0 I L J 249; Rycroft 1988 I L J 202; Landman 1996 C L L 2 1 a n d a l s o
Constitution of the Republic of SA 108 of 1996 s 32(1) and Promotion of Access to Information Act 2 of
2000.
2 This requirement is not defined by the Labour Relations Act of 1995. But see Atlantis Diesel Engines v
NUMSA 1994 I L J 1247 (A); NUMSA v Comark Holdings 1997 5 BLLR 589 (LC); Kgethe v LMK
Manufacturing 1998 3 BLLR 248 (LAC); Benjamin v Plessey Tellumat SA 1998 ILJ 595 (LC); SACCAWU
v Pep Stores 1998 ILJ 1226 (LC).
3 S 16(2), but see s 17(2)(b).
4 S 16(1) defines such a union as one which has the majority of the employees as members.
5 S 16(3). See SACCAWU v Koppel Bacher & Co 2007 ILJ 2352 (CCMA) (purpose of disclosure). If any of
the disclosed information is confidential, the employer must inform the representative of the trade
union or the representative trade union: s 16(4). See also NUMSA v Atlantis Diesel Engines 1993 ILJ
642 (LAC); Atlantis Diesel Engines v NUMSA supra; NEWU v Mintroad Saw Mills 1998 ILJ 95 (LC).
6 S e e s 16(5); Atlantis Diesel Engines v NUMSA supra. CWIU v Lennon 1994 10 BLLR 1 (LAC); Van
Rensburg v Austen Safe Co 1998 ILJ 158 (LC) (abuse of information).
7 S 16(5)(a). See also S v Safatsa 1988 4 All SA 239 (A); 1988 1 SA 868 (A).
8 S 16(5)(b).
9 S 16(5)(c). See NUMSA v Atlantis Diesel Engines supra 652.
10 S 16(5)(d).
11 S 17(2)(b). See also s 17(1) sv "domestic sector".

472 Disputes regarding disclosure If a dispute arises about what information must be disclosed, such dispute
may be referred1 to the Commission for Conciliation, Mediation and Arbitration for resolution.2 If the dispute
remains unresolved, any party may refer it to arbitration for resolution.3 The following aspects must be considered
by the commissioner in attempting to resolve the dispute:
(a) if the information is in fact relevant;4
(b) if relevant, whether the information is also confidential or private and personal;5 and
(c) if the answer to the previous questions is positive, whether the harm of disclosure to the employer or
employee would cause more prejudice than the harm caused by refusing to disclose information to the ability of the
trade union representative to perform his or her functions effectively or the ability of the union to consult or bargain
effectively.6
If the balance of harm favours the disclosure of information, the commissioner may order the disclosure of
information on terms designed to limit the harm.7 However, he or she may refuse disclosure for a specific period if
there has been a breach of confidentiality of information disclosed by the employer. 8 In any dispute concerning the
breach of confidentiality, the right to the disclosure of information in that workplace may be withdrawn by the
commissioner for a specified period.9
1 Regarding the formal aspects of the referral, see Labour Relations Act 66 of 1995s 16(6) (7).
2 S 16(6) (8).
3 S 16(9).
4 S 16(10). See UASA v Ceres Tuiste 2010 ILJ 2753 (CCMA).
5 S 16(5)(c) (d) (11).
6 S 16(11). See also NUMSA v Atlantis Diesel Engines 1993 ILJ 642 (LAC); UASA v Ceres Tuiste supra.
7 S 16(12).
8 S 16(13). See also Van Rensburg v Austen Safe Co 1998 ILJ 158 (LC).
9 S 16(14). See also s 213 sv "workplace" and par 456 ante.

473 Disputes regarding organisational rights A party with any other dispute about the interpretation or
application of organisational rights1 may refer it to the Commission for Conciliation, Mediation and Arbitration
(CCMA) for conciliation.2 Such party may thereafter refer the dispute to arbitration if the CCMA fails to resolve it.3
The arbitration award may also be made binding on the clients of a temporary employment service or any other
person who controls the access to the workplace.4 A party may also decide on strike action to support demands
regarding organisational rights.5 Such strike action, if protected, may result in automatically unfair dismissals if
employees are dismissed because of participating in the strike action.6
1 That is, for which no provision is made in the Labour Relations Act 66 of 1995s 21.
2 S 22(1) (3).
3 S 22(4). See NUMSA v Feltex Foam 1997 ILJ 1404 (CCMA); NGWU v Mr Clean 1998 ILJ 399 (CCMA);
CWIU v Sanachem 1998 ILJ 1638 (CCMA); SACCAWU v King Edward VII School 2008 ILJ 204 (CCMA)
(scope of registration of union).
4 S 22(5).
5 See NUMSA v Edelweiss Glass & Aluminium 2010 ILJ 139 (LC).
6 See s 187(1)(a); NUMSA v Edelweiss Glass & Aluminium supra.

REGISTRATION OF TRADE UNIONS

474 Introduction The registration of trade unions was controversial and much attention has been directed to this
matter.1 The Wiehahn Commission addressed the issue in its various reports, and the National Manpower
Commission (NMC) was also instructed to investigate aspects of union registration.2 The question of trade union
registration is closely associated with the internationally recognised right of persons to organise, as a result of
which employees and employers are entitled to establish organisations, and to organise and manage these
organisations freely. The Wiehahn Commission favoured the existing voluntary system.3
1 The significance of registration was explained in the Wiehahn Report 5.4.32.1 as follows: "Registration
is a matter solely between the government and an employers' or employees' organisation concerned,
basically with the legitimisation of the organisation, official protection of the interests of the
organisation's members, and the maintenance of order and discipline in the industrial relations system
in which the organisation seeks to participate." See also Landman 1997 ILJ 1183.
2 See 1981 NMC Annual Report 115. See also NMC (1981) November Working Paper on the Registration
of Trade Unions and Related Aspects 21.
3 Wiehahn Report 5.4.37.4 5.4.39.1.

475 Fact­Finding and Conciliation Committee and ministerial task team The Fact­Finding and Conciliation
Committee of the International Labour Organisation (ILO) that visited South Africa in the early 1990s found that the
wide discretionary powers of the registrar in respect of registration, the refusal to register trade unions that were
representative, and the registration of ethnically based trade unions were contrary to ILO standards.1 T h e
ministerial task team itself found that the existing registration system for trade unions was too cumbersome and
bureaucratic and that the ethnically oriented provisions were in conflict with the interim Constitution.2 I t
recommended the introduction of a simpler registration process and that the discretion of the registrar is exercised
in a manner ensuring democratic labour practices in accordance with ILO standards.3 These recommendations were
accepted by the National Economic Development and Labour Council and eventually contained in the Labour
Relations Act.4
1 See FFCC 1992 ILJ 743­747; Saley and Benjamin 1992 ILJ 731.
2 Constitution of the Republic of SA 200 of 1993. See Explanatory Memorandum, Government Gazette
16259, 10 February 1995 144­145.
3 Explanatory Memorandum 145­147.
 4 66 of 1995: ss 95­97.

476 Unregistered trade unions: generally The Wiehahn Commission, in spite of strong appeals, was opposed to
the compulsory registration of trade unions. Based on its outlook of voluntarism with respect to the registration of
trade unions, which in itself is a result of the freedom of organisation, the commission came to the conclusion that
"the course of prohibition of unregistered occupational organisations and agreements entered into by such
organisations cannot be adopted without unconscionable sacrifice of fundamental principles or any real prospect of
success".1
1 Wiehahn Report 5.4.34.16. See also Landman 1987 MBL 92; the recommendations of the ministerial
task team in Explanatory Memorandum, Government Gazette 16259, 10 February 1995 145­146. See
further Landman 1997 ILJ 1185.

477 Legal position of unregistered trade unions The legal position of unregistered trade unions is as follows:
(a) As they are not illegal under current legislation, they may use the money collected from their members in
any manner they choose.1
(b) Except for the Labour Relations Act,2 from which they are partially excluded,3 they are free to use the
statutory and common­law provisions as indicated below.
(c) They may not be party to any collective agreement concluded in terms of the Labour Relations Act.4
(d) They may not be members of bargaining or statutory councils and consequently may not bargain effectively
at sectoral or national level.5
(e) Employers are not obliged to deduct membership fees or levies from the wages of members of
unregistered trade unions.6
(f ) Unregistered trade unions and their members are entitled to exercise the rights granted in terms of the
right of association.7
(g) However, only registered trade unions are entitled to exercise the right to organise, including access to the
workplace, deduction of membership fees and leave from work for trade union activities.8
(h) Employers are free to conclude informal recognition agreements with unregistered trade unions.9
(i) Unregistered trade unions may also refer disputes to the Commission for Conciliation, Mediation and
Arbitration (CCMA) for settlement of disputes.10
( j) Members of an unregistered trade union may participate in a legal strike.11
(k) An unregistered trade union has locus standi to approach a court for relief, both as representative of its
members or in its own right as a trade union.12
(l) An unregistered trade union may at common law obtain legal personality as a voluntary organisation.13
(m) Members of an unregistered trade union are protected against victimisation.14
(n) An unregistered union has no legal standing to be party to arbitration proceedings or representing
employees at such proceedings of a bargaining council15 or the CCMA.16
1 The application of the funds must, however, still be in accordance with the constitution of the trade
union.
2 66 of 1995.
3 See ss 11­22 27 et seq 213 sv "collective agreement".
4 See s 213 sv "collective agreement"; Consolidated Frame Cotton Corporation v Minister of Manpower
1984 ILJ 309 (D); 1985 ILJ 159 (N).
5 Ss 27(1) 39(1)(a) (2). See also BAWU v Palm Beach Hotel 1988 ILJ 1016 (IC).
6 S 13(1) (2).
7 See ss 4 5 8­10.
8 Ss 11­22. See MATUSA v Crouse 2015 ILJ 3122 (LC).
9 Ie, a collective agreement which does not comply with the requirements of the definition of
"agreement" as provided in s 213. See also pars 642 et seq post.
10 S 134(1)(a).
11 See s 64(1)(a) (b); FAWU v Wilmark 1998 ILJ 928 (CCMA) (scope of registration of trade union).
12 MAWU v A Mauchle 1980 ILJ 227 (IC); TAWU v PE Tramways & Bay Bus Workers' Union, unreported
(see 1981 ILJ 128); SANAWU v Maluti Crushers 1997 7 BLLR 955 (CCMA). See also Van der Vyver
1981 ILJ 1; Cheadle 1979 SALJ 32; Beck 1981 SALJ 324.
13 Morrison v Standard Building Society 1932 AD 229; Bamford The Law of Partnerships and Voluntary
Association in South Africa 126; Lawsa vol 1 par 565.
14 See s 5(2)(c).
15 See s 200(2) and Democratic Workers Assembly & Plastic Chips/Golden Strings 2004 ILJ 750 (BCA).
16 CCMA Rules r 25(1)(a). See also Erasmus v Fidelity Security Services 2016 ILJ 2168 (CCMA).

478 Requirements for registration Any trade union may apply to the registrar for registration if it:
(a) assumes a name which is in accordance with the prescribed requirements;1
(b) adopts a constitution which is in accordance with the prescribed requirements;2
(c) has an address in the Republic;3 and
(d) is independent.4
 1 Labour Relations Act 66 of 1995s 95(1)(a). See also s 95(4) which provides that the name must not be
so closely related to the name of another trade union that it could likely mislead or cause confusion:
MISA v Registrar of Labour Relations 1998 ILJ 1520 (LC); Staff Association for the Motor & Related
Industries v Motor Industry Staff Association 1999 ILJ 2552 (LAC); MATUSA v Crous 2015 ILJ 3122
(LC); IMATU v MATUSA 2017 ILJ 1283 (LAC) (confusion between names ­ factors to be considered). If
the trade union decides to change its name, it should comply with the procedure prescribed in
s 101(5)­(8).
2 S 95(1)(b). S 95(5) (6) prescribes requirements regarding a constitution.
3 S 95(1)(c).
4 S 95(1)(d). A trade union is independent if it is not under the control, influence or interference of an
employer or employers' organisation: s 95(2). See also s 105; Sgt Pepper's Knitwear v SACTWU 2012
ILJ 2178 (LC) (allegation by rival employer).

479 Procedure for registration Any trade union may apply for registration by submitting to the Registrar of
Labour Relations:
(a) the completed prescribed form;1
(b) a copy of its constitution;2 and
(c) any other information to assist the registrar in determining whether the trade union complies with the
requirements for registration.3
The registrar must consider the application 4 and, if he or she is satisfied that:
(i) the registration requirements have been complied with; and
(ii) the trade union is a genuine trade union,5
he or she must register the trade union.6
If the requirements have not been complied with, he or she must notify the trade union, provide the reasons for
the decision and allow the union 30 days to comply.7 If the requirements are met within 30 days, the trade union
must be registered.8 If not, registration must be refused.9 If registration takes place, the registrar must issue a
registration certificate, with a certified copy of the registered constitution, to the trade union.10
1 See Labour Relations Act 66 of 1995s 96(1)(a).
2 S 96(1)(b).
3 S 96(1)(c). See also s 96(2); National Employers Forum v Minister of Labour 2003 ILJ 954 (LC); WUSA
v Crouse 2005 ILJ 1723 (LC).
4 S 96(3)(a). See WUSA v Crouse supra. Regarding the powers of the registrar, see MATUSA v Crouse
2015 ILJ 3122 (LC) and Manamela 2006 SAMLJ 518.
5 S e e s 95(7); WUSA v Crouse supra; Cementation Mining v CCMA 2010 I L J 1167 (LC); MATUSA v
Crouse supra (criteria criticised). S 95(8) states that the minister, in consultation with NEDLAC, may
publish guidelines to determine whether a trade union is a genuine trade union.
6 S 96(3)(b).
7 S 96(4). See SASGWU v Registrar of Labour Relations 2015 ILJ 3149 (LC) (refusal to register).
8 S 96(5).
9 S 96(6). See also WUSA v Crouse supra (powers of registrar in terms of s 95 96); SASGWU v Registrar
of Labour Relations 2015 ILJ 3149 (LC) (review of refusal).
10 S 96(7). See also Crouse v WUSA 2008 ILJ 2571 (LAC).

480 Legal consequences of registration: acquisition of legal personality The most important consequence of
the registration of a trade union is that it acquires legal personality.1 All the other consequences which flow from
registration derive from the fact that a registered trade union is a body corporate or is closely related thereto. The
law recognises two legal subjects:
(a) the natural person; and
(b) the legal person, which acquires legal personality in terms of a statutory provision or the common law.
The legal person according to its origin is an abstract entity and cannot function without human agency. A body
corporate must have organs consisting of natural persons to enable it to function and take part in the legal process.
The conduct and acts of such organs on behalf of the body corporate, provided they fall within the framework of
that body's constitution, are not those of the body's members but are the acts of the body itself as an independent
legal entity.2 Consequently, if a trade union at registration acquires legal personality, it is an independent legal
subject distinct in law from its members and officials3 and acquires its own reputation separate from its members,
which is protectable.4 The trade union must, however, operate and function within its registered scope; for
instance, if its registered scope is limited to the security industry, it is not permitted to exercise organisational rights
in the hospitality industry.5
1 Labour Relations Act 66 of 1995s 97(1). See also FAWU v Wilmark 1998 ILJ 928 (CCMA); SAMWU v
Jada 2003 ILJ 1344 (W).
2 See Mokoena v Mittal Steel SA 2007 ILJ 1391 (BCA) (legal standing).
3 See Mbobo v Randfontein Estate Gold Mining Co 1992 ILJ 1485 (IC); Cilliers et al Corporate Law 4­7.
4 See SANDU v Minister of Defence 2012 ILJ 1061 (GNP).
5 SACCAWU v King Edward VII School 2008 ILJ 204 (CCMA) (scope of registration). See also FAWU v
Ferucci 1992 ILJ 1271 (IC) (scope of registration determined by nature of enterprise); DUSW v Squires
Foods 2008 ILJ 2815 (CCMA).
481 Effect of legal personality On registration a trade union acquires all the assets, debts, rights and obligations
which it possessed before registration and is also entitled to acquire movable and immovable property, and to own
and to alienate such property.1 The assets of a trade union are owned by the body corporate as legal person and
not by the individual members proportionally, as for instance in the case of a partnership. However, a trade union
may only alienate its assets if it is in the interest of the trade union and its members.2 Similarly, the liabilities of a
trade union are those of the body corporate; the members, who have limited liability, cannot be charged with the
debts of the union if they have discharged their obligations towards it.3 If they have not met their obligations and
the union is liquidated, they are only liable for their outstanding obligations.4 As a legal person the trade union may
in law act as plaintiff or defendant but it cannot perform anything legally which is not provided for in its
constitution.5 Any such act is ultra vires and null and void.6 A trade union has a reputation independent of its
members and is entitled to protect it against any conduct impairing such reputation.7
If a union concludes a contract with the help of its organs, a member of the union may not sue or be sued on the
contract in his or her individual capacity. When a delict is committed against the union as a result of which damages
are caused, only the union may sue for damages.8 The union with its constitution and members form a domestic
unit. Before becoming a member, a person has the opportunity to scrutinise the constitution that determines the
nature of his or her relationship with the union when he or she joins.9 A court is not entitled on request of a
member of a trade union to interfere with the internal management of the union when it acts intra vires, although
irregularly, provided the majority of the members ratify the irregular act. In this situation only the trade union may
act in law.10
1 See AEU v Minister of Labour 1949 4 SA 908 (A); NUFAWSA v PWAWU 1984 ILJ 161 (W).
2 Amalgamated Union of Building Trade Workers of SA v SA Operative Mason's Society 1957 1 SA 440
(A); Amalgamated Society of Woodworkers of SA v Die 1963 Ambagsaalvereniging 1967 1 SA 586 (T).
3 See Labour Relations Act 6 6 o f 1 9 9 5s 97(2); G r ü n d l i n g v B e y e r s 1 9 6 7 2 A l l S A 2 1 6 ( W );
1967 2 SA 131 (W).
4 Eg, arrear membership fees.
5 See AWUSA v Fedics Food Services 1999 ILJ 602 (LC).
6 Amalgamated Society of Woodworkers of SA v Die 1963 Ambagsaalvereniging supra; Sorenson v
Executive Committee Tramway & Omnibus Workers' U n i o n (Cape) 1 9 7 4 3 A l l S A 7 9 ( C );
1974 2 SA 545 (C); Gründling v Beyers supra; Fraser Alexander Bulk Materials Handling v CWIU 1996
ILJ 713 (IC); AWUSA v Fedics Food Services supra.
7 See SANDU v Minister of Defence 2012 ILJ 1061 (GNP).
8 See s 97(3) (4). See also AEU v Minister of Labour supra; NUFAWSA v PWAWU supra; Bamford The
Law of Partnerships and Voluntary Association in South Africa 204; Lawsa vol 1 par 609. Regarding
delicts committed by union members, see SAMWU v Jada 2003 ILJ 1344 (W); Landman 2000 ILJ 101.
9 Lawsa vol 1 par 582; Bamford 139.
10 The principle is known as the rule in "Foss v Harbottle", derived from the English case Foss v Harbottle
(1843) 2 Hare 461; 67 ER 189. An individual may approach the court if the act is ultra vires the powers
of the trade union or tends to be such, in which case he or she may apply for an interdict to prohibit
the alleged irregular conduct. See Garment Workers' Union v Smith 1936 CPD 249; Gründling v Beyers
supra; Heyne 1967 THRHR 175; Strydom 1988 MBL 157.

482 Other consequences of registration Only a registered trade union may become a member of bargaining
council1 ­ an aspect of the current dispensation that has many disadvantages for an unregistered trade union.
Previously only a registered trade union could refer a dispute to a conciliation body, although legislation in 1983
extended this right to unregistered trade unions.2
1 See Labour Relations Act 66 of 1995s 27(1).
2 See now s 134(1)(a) as regards the referral of disputes to the Commission for Conciliation, Mediation
and Arbitration.

483 Cancellation of registration If the Registrar of Labour Relations is notified by the registrar of the Labour
Court that the court has:
(a) ordered the winding­up of a trade union;1 or
(b) declared that a trade union is not independent,2
the registration of the trade union must be cancelled.3
The registrar may also cancel the registration of a trade union if the guidelines4 for cancellation issued by the
Minister of Labour, are not followed, namely:5
(i) he or she is satisfied that the trade union is not a genuine trade union or is not functioning as such;6 or
(ii) the union has failed to comply with a written notice issued by the registrar within 60 days.7
If the registration is cancelled,8 the legal person is terminated9 as well as other rights enjoyed because of
registration.10
1 Labour Relations Act 66 of 1995s 106(1)(a).
2 S 106(1)(b). See also s 105 regarding a declaration that a trade union is no longer independent and
National Employers Forum v Minister of Labour 2003 ILJ 954 (LC).
3 S 106(2). See CCMA v Registrar of Labour Relations 2010 ILJ 2086 (LC) (suspension of deregistration
pending appeal).
4 Issued in terms of s 95(8).
5 S 106(2A). See NEWU v Minister of Labour 2006 ILJ 1901 (LC); UPUSA v Registrar of Labour Relations
2010 ILJ 198 (LC) (application for interdict failed); NEWU v Minister of Labour 2010 ILJ 574 (LAC). See
also s 106(2B); GDPEO v Registrar of Labour Relations 2011 ILJ 316 (LC); LAGEO v Minister of Labour
 2011 ILJ 340 (LC); Unica Plastic Moulders CC v NUSAW 2011 ILJ 443 (LC); NEWU v CCMA 2011 ILJ
2095 (LAC); CAESER v Registrar of Labour Relations 2012 ILJ 2085 (LC); SAUCAEO v Registrar of
Labour Relations 2012 ILJ 2172 (LC).
6 See Guidelines cl 24 28; CAESAR v Registrar of Labour Relations supra; NEWU v Ministry of Labour
2012 ILJ 2585 (LAC).
7 NEWU v Ministry of Labour 2011 ILJ 1372 (LC).
8 An appeal against the decision of the registrar is possible in terms of s 111. See also par 509 post.
9 UPUSA v Registrar of Labour Relations supra.
10 S 106(3). See also s 97(1); pars 480­481 ante.

CONSTITUTIONS OF TRADE UNIONS

484 Introduction A trade union must have a constitution to qualify for registration.1 The function of the
constitution of a trade union is to determine the rights and obligations of members of the trade union towards each
other and as regards outsiders.2 On registration, the constitution of a trade union becomes a public document,
which is freely available for inspection by every member of the public upon payment of the prescribed fee.3 It also
establishes a contract between the individual members of the union who are bound in a voluntary association.4
In dealing with a trade union, ignorance of the contents of its constitution may not later be raised as a defence.
However, it is not possible for an ordinary member of the public to be acquainted with the internal matters and
arrangements of such an association.5 The Labour Relations Act prescribes compulsory provisions which must be
incorporated in the constitution of every registered trade union.6
1 Labour Relations Act 66 of 1995s 95(1)(b).
2 BIFSA v Minister of Labour 1980 3 All SA 31 (W); 1980 4 SA 810 (W); SASBO v Standard Bank of SA
1994 ILJ 332 (IC); FAWU v Wilmark 1998 ILJ 928 (CCMA); SAMWU v Jada 2003 ILJ 1344 (W).
3 S 110(1)(b). At a prescribed fee, any person is entitled to a copy of the constitution: s 110(2).
4 SATAWU v Zondo 2015 ILJ 2348 (LC).
5 See Gründling v Beyers 1967 2 All SA 216 (W); 1967 2 SA 131 (W).
6 See s 95(5); FAWU v Buthelezi 1998 ILJ 829 (LC).

485 Membership requirements and fees A constitution must specify the requirements for membership of the
trade union1 as well as the membership fees and other fees payable by members.2 The mere fact that a person
complies with these conditions does not mean that such a person is entitled to membership.3 The trade union as a
legal person, together with its members and constitution, forms a domestic unit and can therefore decide who is
entitled to membership.4
1 Labour Relations Act 66 of 1995s 95(5)(b). See also Van Wyk & Taylor v Dando & Van Wyk Print 1997
7 BLLR 906 (LC); FAWU v Wilmark 1998 ILJ 928 (CCMA); SATAWU v Transnet Port Terminals 2014 ILJ
2578 (BCA).
2 S 95(5)(f ). See also TGWU v Multi Bus Service CC 1995 ILJ 213 (IC).
3 See par 500 post.
4 But see s 95(6); Garment Workers' Union, Western Province v Keraan 1961 1 SA 744 (C). See also
Spilkin Newfield & Co v Master Builders & Allied Trades Association, Witwatersrand 1934 WLD 160;
Smit v Building Workers Industrial Union of SA 1939 TPD 127.

486 Termination of benefits of membership As a penalty measure, a member may remain a member and be
liable to pay his or her dues, but be excluded from certain trade union benefits.1
1 Labour Relations Act 66 of 1995s 95(5)(c).

487 Termination of membership If termination is not permitted in terms of the constitution, the trade union will
not able to terminate the membership of a member. 1 If definite grounds for termination are provided for and the
existence of such grounds can be proved, then termination of the membership of the member is legally
permissible.2 If a procedure for termination has been laid down, the union and the member must observe this
strictly.3 If the member does not follow the procedure, acceptance of his or her resignation by the union will not be
necessary, unless the constitution has a provision to the contrary. 4 The constitution may provide that a trade union
can refuse to accept the resignation of a member if it is not satisfied with the reasons furnished. However, if the
member can prove that the decision is bad in law or that the general rules were not taken into consideration, he or
she can approach the court for relief.5
1 Labour Relations Act 66 of 1995s 95(5)(d). See also Du Plessis v Building Workers' Industrial Union
1948 3 SA 1059 (W).
2 S e e p a r 502 p o s t ; J o c k e y C l u b o f S A v F e l d m a n 1 9 4 2 A D 3 4 0 ; T u r n e r v J o c k e y C l u b o f S A
1974 3 SA 633 (A).
3 SATAWU v Zondo 2015 ILJ 2348 (LC); GIWUSA v Maseko 2015 ILJ 2874 (LC).
4 Matthews v Executive Council, Garment Workers' Industrial Union (Natal) 1955 4 SA 42 (N).
5 See Amalgamated Engineering Union v Neumann, unreported (TPD) February 1939.

488 Appeal procedure Provision must be made to appeal against a decision by a committee or organ of a trade
union1 in respect of matters such as the termination of membership and the refusal of benefits where membership
is retained. In general, a member should appeal to such a body before approaching the court for relief.2
1 Labour Relations Act 66 of 1995s 95(5)(e). See also Dennis v Garment Workers' Union, Cape Peninsula
 1955 1 All SA 68 (C); 1955 3 SA 232 (C).
2 Jockey Club of SA v Feldman 1942 AD 340 350.

489 Amendments to the constitution and name of the trade union The provisions of the constitution regarding
amendment 1 must be observed strictly.2 A copy of the resolution to amend the constitution must be submitted to
the registrar, accompanied by a certificate to the effect that the amendment complies with the constitution. 3 The
registrar must register the amended constitution and send a copy of the resolution, endorsed by the registrar, to
the union.4 It is possible that the Labour Court may find that no reasonable person would regard the amendment
as being to the advantage of the association or its members and, therefore, at the request of its members, the
court may intervene.5 The court may be approached by lodging an appeal against the decision of the registrar. 6
The Labour Relations Act lays down the same procedure if a trade union resolves to change its name.7
1 Labour Relations Act 66 of 1995s 95(5)(v).
2 S 101(1)­(4). See also NEWU v Mtshali 2000 3 BLLR 337 (LC); NEWU v Minister of Labour 2010 ILJ 574
(LC).
3 See s 101(2).
4 S 101(3). Although not strictly applicable, see also De Beer v Mine Workers' Union 1948 4 SA 503 (T)
and NEWU v Mtshali supra (amendments incompatible with the Act).
5 See Garment Workers' Union v Schoeman 1951 4 SA 9 (W); Visser v Minister of Labour 1954 3 All SA
470 (W); 1954 3 SA 975 (W).
6 See s 111 (appeal procedure). See also Klemp v Mentz 1949 2 SA 443 (W); NEWU v Mtshali supra.
7 See ss 101(5)­(8).

490 Meetings of trade union The constitution must provide for the holding of meetings of members and the
management of the trade union. Similarly, provision must be made for the quorum required for and the keeping of
minutes of these meetings.1 If the constitution lays down provisions with regard to the manner in which meetings
should be arranged, and notices and agendas for meetings, these must be observed.2 The same applies if formal
requirements are prescribed for the holding of extraordinary meetings of the trade union.3 The constitution must
provide for the manner in which voting at meetings must be conducted, for instance, by ballot paper or by hand.4
1 Labour Relations Act 66 of 1995s 95(5)(g). See FAWU v Buthelezi 1998 ILJ 829 (LC).
2 S 95(5)(g).
3 Visser v Minister of Labour 1954 3 SA 975 (W). See also Brophy v Tramways & Omnibus Workers'
Union (Cape) 1948 2 SA 103 (C). See further Govender v Textile Workers' Industrial Union (SA)
Durban Branch 1961 3 SA 88 (D); Gründling v Beyers 1967 2 SA 131 (W); EIWUSA v Abrahams 1982
3 All SA 76 (SE); 1982 2 SA 326 (SE); Kelling 1980 TRW 78.
4 S 95(5)(h). See also Brophy v Tramway & Omnibus Workers' Union (Cape) supra; Harris v Tramway &
Omnibus Workers' Union (Cape) 1964 2 SA 636 (C); Gründling v Beyers supra; Sorenson v Executive
Committee Tramway & Omnibus Workers' Union (Cape) 1974 2 SA 545 ( C ) ; Ramolesane v Andrew
Mentis 1991 ILJ 329 (LAC); Landman 1987 MBL 94.

491 Officials and office bearers of trade union The constitution of a trade union must contain the following
provisions with regard to officials1 and office­bearers:2
(a) the establishment of the office of secretary and a description of its functions;3
(b) the establishment of the office of other officials, office­bearers and trade union representatives and the
definition of their functions;4
(c) the procedure for the nomination of candidates for election as office­bearers and trade union
representatives;5
(d) the procedure for the appointment, nomination and election of officials;6
(e) the powers and duties of office­bearers and officials;7
(f ) the circumstances and the manner in which office­bearers, officials and trade union representatives can be
removed from office;8
(g) the procedure for appeals against the removal from office of officials, office­bearers and trade union
representatives;9 and
(h) the procedure for the manner and the circumstances in which a ballot must be conducted.10
1 An "official" is defined in the Labour Relations Act 66 of 1995s 213 as "a person employed as the
secretary . . . or organizer of a trade union . . . whether or not that person is employed in a full­time
capacity". See also Gründling v Beyers 1967 2 SA 131 (W); Keshwar v SANCA 1991 ILJ 816 (IC).
2 An "office­bearer" is defined as "a person, who holds office in a trade union . . . and who is not an
official": s 213.
3 S 95(5)(i).
4 S 95(5)( j).
5 S 95(5)(k).
6 S 95(5)(l). See also Garment Workers' Union v De Vries 1949 1 SA 1110 (W); Harris v Tramway &
Omnibus Workers' Union (Cape) 1964 2 SA 636 (C); Gründling v Beyers supra; Theron v FAWU 1998 5
BLLR 528 (LC); 1997 ILJ 1046 (LC).
7 S 95(5)( j). See also Dlamini v Mavi 1982 3 All SA 96 (W); 1982 2 SA 490 (W) regarding the powers of
an employee of a trade union in case of eviction from his or her office; Gründling v Beyers supra;
Sorenson v Executive Committee Tramway & Omnibus Workers' Union (Cape) 1974 2 SA 545 (C);
Moloi v Euijen 1999 ILJ 2829 (LAC) (trade union official's behaviour in court). Regarding the legal
position of full­time shop stewards (who are not employees of their unions, but of their companies,
 undertakings, etc), see Ekurhuleni Metropolitan Municipality v SAMWU 2015 ILJ 624 (LAC); Heyne 1967
THRHR 175.
8 S 95(5)(m). S e e a l s o Gründling v Beyers supra; Sorenson v Executive Committee Tramway &
Omnibus Workers' Union (Cape) supra; Theron v FAWU supra.
9 S 95(5)(n).
10 S 95(5)(o). See also Theron v FAWU supra.

492 Relationship between trade union and officials The fact that the constitution of a trade union must contain a
provision regarding the appointment and powers of office­bearers and officials does not imply that such persons are
statutory office­bearers or officials.
It has been held that a trade union official is an ordinary employee in terms of a contract of employment.1 All the
ordinary principles of individual labour law in respect of unfair dismissal, possible reinstatement and damages are
applicable to him or her. 2 The legal relationship between such an official and his or her trade union is therefore a
contractual relationship based on the contract of employment.3
1 Gründling v Beyers 1967 2 SA 131 (W).
2 See Vol 24(2)(3ed) pars 32 et seq post; Theron v FAWU 1998 5 BLLR 528 (LC).
3 The court stated in Gründling v Beyers supra 138: "The legal relationship . . . between the Union and
the general secretary as such is purely contractual, that of master and servant, and is the same as
that between a company . . . and its secretary or any other official." Regarding the appointment,
powers and duties of the executive committee, see Gründling v Beyers supra; Sorenson v Executive
Committee Tramway & Omnibus Workers' Union (Cape) 1974 2 SA 545 ( C ) ; NEHAWU v Ramodise
2010 I L J 695 (LC) (determining factors); SAMWU v eThekwini Municipality 2017 I L J 158 (LAC)
(misconduct).

493 Non­profit organisation The main object of a trade union is to regulate the relationship between its members
and the employer. Therefore, there is no justification for a trade union to make a profit or to plan for it.1
1 Labour Relations Act 66 of 1995s 95(5)(a).

494 Acquisition and control of assets It is essential to provide for the acquisition and control of assets, failing
which the union would not be able to acquire assets.1
1 Labour Relations Act 66 of 1995s 95(5)(t).

495 Other provisions A constitution should also provide for:

(a) the circumstances and manner in which a ballot must be conducted;1
(b) the election of representatives to a bargaining council;2
(c) the depositing, investing and purposes for use of its money;3
(d) the date for the end of its financial year;4
(e) the voting by ballot paper before a strike is called;5
(f ) members not to be disciplined for refusing to strike if there was no ballot or a majority vote in respect of
the strike was not obtained;6 and
(g) liquidation of the trade union.7
The constitution of a trade union may not include any provision which discriminates on the ground of race or
sex.8
1 Labour Relations Act 66 of 1995s 95(5)(o). See also Edgars Stores v SACCAWU 1992 ILJ 177 (IC);
Hotelicca v Late Nite Al's 1992 ILJ 636 (IC); SA Nylon Spinners v SACWU 1992 ILJ 1014 (IC); BTR
Dunlop v NUMSA 2 1992 ILJ 1410 (T); SEIFSA v NUMSA (2) 1992 ILJ 1422 (T).
2 S 95(5)(k).
3 S 95(5)(r) (s).
4 S 95(5)(u).
5 S 95(5)(p).
6 S 95(5)(q).
7 S 95(5)(w).
8 S 95(6).

496 Interpretation of constitution When problems are experienced in interpreting the provisions of a trade union
constitution, the same principles should be applied as in the interpretation of the articles of association of a
company. In Garment Workers' Union v De Vries1 the basic principles and manner of approach are expounded as
follows: "In considering questions concerning the administration of a lay society governed by rules, it seems to me
that a court must look at the matter broadly and benevolently and not in a carping, critical and narrow way. A court
should not lay down a standard of observance that would make it always unnecessarily difficult ­ and sometimes
impossible to carry out the constitution. I think that one should approach such enquiries as the present in a
reasonable common sense way, and not in the fault­finding spirit . . . If such a narrow and close attention to the
rules of the constitution are demanded, a very large number of administrative acts done by lay bodies could be
upset by the courts. Such a state of affairs would be in the highest degree calamitous."2
 1 1949 1 SA 1110 (W) 1129.
2 See also Gründling v Beyers 1967 2 SA 131 (W); Fraser Alexander Bulk Materials Handling v CWIU
1996 ILJ 713 (IC); GIWUSA v Maseko 2015 ILJ 2874 (LC).

497 Defects and breach of constitution The Labour Relations Act 1 provides expressly that no defect 2 in the
constitution of a trade union will have the effect of rendering the constitution invalid.3 Any serious breach of the
constitution of a trade union may justify the cancellation of the registration of the union.4
1 66 of 1995.
2 See s 206(2) sv "defect".
3 S 206(1).
4 See SAUCAEO v Registrar of Labour Relations 2012 ILJ 2172 (LC).

TRADE UNION MEMBERSHIP

498 Introduction The question of trade union membership is accorded extensive attention in the Labour Relations
Act,1 some of the more important aspects of the new labour dispensation being directly concerned with union
membership issues.2
1 66 of 1995. See also pars 17­20444­446 ante.
2 See eg the provisions relating to closed shop and agency shop agreements (pars 444­453 ante);
Landman 1997 ILJ 13.

499 Right to join a trade union The right of employees to join trade unions flows from one of the fundamental
rights of workers, namely the right to associate.1 Full recognition is given to this right in the Labour Relations Act.2
An employer may not compel an employee not to join a trade union by means of a provision to that effect in the
conditions of employment.3 An employee may likewise, apart from certain exceptions,4 not be prohibited by any law
from becoming a member of a trade union or similar organisation of employees.5 The opposite of the right to
associate or to join a trade union is the right not to associate or join a trade union. Whilst in Europe a premium is
placed on this right and the courts ensure that no infringement takes place,6 in South Africa this right enjoys limited
validity because of the effect of the closed shop principle.7
1 S e e p a r s 440­453 ante; Constitution of the Republic of SA 108 of 1996ss 23(2)(a) ( b ) ; V o n
Prondzynski Freedom of Association and Industrial Relations: A Comparative Study 2; Landman 1997
ILJ 13.
2 66 of 1995: s 4(1)(b). See NUM v CCMA 2013 ILJ 3296 (LC).
3 See s 5(2)(a)(i) (iii) (4); NUM v CCMA supra (employer interference).
4 Eg. applicants for employment, job seekers. See NEWU v Mtshali 2000 3 BLLR 337 (LC).
5 S 5(2)(a)(ii). See NUFAWSA v PWAWU 1984 ILJ 161 (W).
6 See par 444 ante.
7 See pars 444­451 ante.

500 Requirements for trade union membership An employee will only be considered for membership of a trade
union if he or she complies with the following requirements:
(a) he or she is an employee as defined in the Labour Relations Act;1 and
(b) he or she satisfies all the membership requirements laid down by the trade union in its constitution.2
Hereafter an employee will only become a member of the trade union when signing an application form and the
form is accepted by the trade union.3 Even though an employee may comply with all the requirements for
membership, this does not per se entitle him or her to membership of the trade union.4 As was shown,5 the trade
union is a legal person which, with its members and constitution, forms a domestic unit. It may, of its own volition,
decide who can be a member and who cannot,6 even though such a refusal may result in a trade monopoly in
favour of its members, if the object is not to prejudice the applicant, but to protect its own members.7
1 66 of 1995. See s 213 sv "employee"; pars 70­71 ante; Nomabunga v Daily Dispatch 1997 11 BLLR
1519 (CCMA); NEWU v Mtshali 2000 ILJ 1166 (LC) ( job seekers and applicant for employment); TGWU
v Tlokwe Cleaning Services 2000 ILJ 2333 (CCMA).
2 See par 442 ante; s 95(5)(b); TGWU v Multi Bus Service CC 1995 ILJ 213 (IC); Broodryk v SA Airways
1996 ILJ 278 (IC); Van Wyk & Taylor v Dando & Van Wyk Print 1997 7 BLLR 906 (LC); Equity Aviation
Services v SATAWU 2009 ILJ 1997 (LAC); MacDonald's Transport Upington v AMCU 2016 I L J 2593
(LAC); Landman 1997 ILJ 13.
3 MacDonald's Transport Upington v AMCU supra.
4 See fn 2 supra and s 95(6) which states that the constitution of a trade union may not include any
provision discriminating against any person on grounds of sex or race.
5 See par 480 ante.
6 See Constitution of the Republic of SA 108 of 1996s 18 (freedom of association); Garment Workers'
Union, Western Province v Keraan 1961 1 SA 744 (C).
7 The trade union therefore has a discretion with regard to the admission of new members: Spilkin
Newfield & Co v Master Builders & Allied Trades Association, Witwatersrand 1934 WLD 160; Smit v
Building Workers Industrial Union of SA 1939 TPD 127; Cronje v United Cricket Board of SA 2001 JOL
9033 (T); 2001 ILJ 2577 (T) (right of association); AMCU v Mashala Resources 2011 ILJ 2778 (CCMA);
but see Landman 1997 ILJ 13­18.
501 Consequences of membership Several legal consequences flow from trade union membership:
(a) A member is not liable for the debts or other obligations of the trade union,1 provided the member has
fulfilled all his or her obligations towards the trade union. If he or she has not and the trade union is liquidated, the
member is only responsible to the extent of his or her outstanding obligations.2
(b) A collective agreement which applies to a trade union is also applicable to every member thereof from the
date of the conclusion of the agreement.3 An employee who joins a trade union after the conclusion of such an
agreement is subject to that agreement or award from the date of his or her membership for the duration of the
agreement.4
(c) An employee who resigns from the trade union remains subject to the agreement for the duration of the
agreement.5
(d) It is usually stipulated in the constitution of a trade union that members must pay their membership dues
punctually.6 An employer can be compelled to deduct the member's membership fees from his or her salary or
wages.7 The Act provides for a comprehensive procedure which must be followed in this regard; amongst other
things, this entails that moneys should only be deducted on behalf of trade unions which are sufficiently
representative.8
(e) Employers are not compelled to, but may, deduct membership fees on behalf of unregistered trade
unions.9
(f ) A trade union continues to represent an employee until he or she has resigned membership.10
(g) On becoming a member of a trade union, a contract is established between the member, his or her union
and other members of the union.11
(h) As member of the trade union, he or she may be disciplined, for example, suspended as member, 12 his or
her membership terminated,13 and so on. As a union member, the Act would not be applicable or be of assistance
to him or her.14
1 Labour Relations Act 66 of 1995s 97(2).
2 See Gründling v Beyers 1967 2 SA 131 (W).
3 S 23(1)(c). See also Mngomezulu v Khutala Mining Services 1994 ILJ 374 (IC); SASBO v Standard
Bank of SA 1994 ILJ 332 (IC).
4 S 23(2).
5 Ibid.
6 S 95(5)(f ).
7 See s 13(2). See also Landman 1990 SAMLJ 78.
8 S 1 3. S e e a l s o Consolidated Frame Cotton Corporation v Sithole 1985 I L J 19 (N) regarding the
revocation of the employer's authority to deduct subscriptions.
9 See s 11 read with s 13.
10 See Mzeku v Volkswagen SA 2001 8 BLLR 857 (LAC).
11 SATAWU v Zondo 2015 ILJ 2348 (LC).
12 See Mphage v SAMWU 2013 ILJ 1764 (LC).
13 See par 502 post.
14 Mphage v SAMWU supra.

TERMINATION OF MEMBERSHIP

502 General principles1 Unless termination is permitted in the constitution, a member's union membership may
not be terminated.2 If certain requirements are prescribed in the constitution and these have been complied with,
membership may be terminated. Membership may only be terminated on grounds contained in the constitution.3
The constitution often directs that membership be terminated by the management or any other body which is part
of the union if the member is guilty of misconduct, acts in conflict with the interests of the union or discredits the
trade union through his or her behaviour. In such cases there may be a difference of opinion as to whether such
member is actually guilty of the alleged misconduct.4
The question is: How should a disciplinary body of the trade union handle such a problem? In general the
problem of termination of trade union membership or expulsion from a trade union should be handled according to
the fundamental principles of natural justice, and with due regard to the provisions of the union's constitution.5 In
Turner v Jockey Club of SA6 the Appellate Division propounded the following general principles. The principles of
natural justice do not require that a domestic quasi­judicial body should follow the procedures and technical rules of
a court with regard to evidence but they do require that:
(a) such a body should follow a procedure which would afford the member a proper trial;7
(b) an opportunity should be given to the member to furnish his or her evidence or to rebut prejudicial
statements and allegations against him or her;8
(c) such a body should carry out its obligations in an honest and unbiased manner;9 and
(d) such a body's finding of the facts on which its decision is based should be fair and bona fide.10
1 See Labour Relations Act 66 of 1995s 158(1)(e) stating that the Labour Court has the power to
determine disputes between unions and its members regarding the non­compliance of its constitution.
2 See s 95(5)(d).
3 Mhlongo v FAWU 2007 ILJ 397 (LC) (consequences).
4 See, in general, Cronje v United Cricket Board of SA 2001 JOL 9033 (T); 2001 ILJ 2577 (T).
5 Jockey Club of SA v Feldman 1942 AD 340; Troskie v Verster 1997 ILJ 100 (O); Cronje v United
Cricket Board of SA supra. See also Wiechers Administratiefreg (2ed) 235­254; Baxter Administrative
Law 541.
 6 1974 3 SA 633 (A).
7 Regarding the question whether or not a member is entitled to the services of a legal representative,
see Dabner v SAR&H 1920 AD 583; Director of Education v Lekhethoa 1949 1 SA 183 (T); Smith v
Beleggende Outoriteit van Kommandement Noord­Tvl van die SA Weermag 1980 3 SA 519 (T);
Lamprecht v McNeillie 1994 ILJ 998 (A); Mahumani v MEC: Department of Finance, Economic Affairs &
Tourism, Northern Province 2004 ILJ 2311 (SCA); Wiechers 237; Baxter 555; Van Jaarsveld 1993 De
Jure 176, 2005 THRHR 479.
8 See also pars 253­254 ante Vol 24(2)(3ed) 46 post.
9 Barnard v Jockey Club of SA 1984 2 SA 35 (W); BTR Industries SA v MAWU 1992 4 All SA 701 (A);
1992 3 SA 673 (A); Troskie v Verster supra; President of Republic of SA v SA Rugby Football Union
1999 7 BCLR 725 (CC); 1999 4 SA 147 (CC); Wiechers 241; Baxter 593.
10 In Lee v Showmen's Guild 1952 2 QB 329 the above principle was explained as follows: "Although the
jurisdiction of a domestic tribunal is founded on a contract . . . nevertheless the parties are not free to
make any contract they like. There are important limitations imposed by public policy. The tribunal
must, for instance, observe the principles of natural justice. They must give the man notice of the
charge and a reasonable opportunity to meet it. Any stipulation to the contrary would be void." See
also Motaung v Mukubela 1975 1 SA 618 (O); Cronje v United Cricket Board of SA supra.

503 Specific principles regarding termination Specific principles regarding the termination of union membership
can be deduced from the case law:
(a) The constitution of the union must provide for expulsion.1
(b) If the constitution provides for a special procedure which should be applied in such cases, this must be
followed strictly.2 These provisions might be of such a nature that according to the opinion of the member they are
not fair and sufficient. However, the member is not entitled to object as, at the time of becoming a member of the
trade union, he or she had the opportunity to acquaint him­ or herself with the contents of the constitution and, if
the member did not object then, it should be assumed that he or she accepted its provisions and is therefore
contractually bound to it.3
(c) If there is an irregularity in the proceedings, the court will not intervene if the irregularity would not have
influenced the decision and the member was not prejudiced by it.4
(d) If the decision­making body should have taken into consideration statutory provisions and did not do so,
that would also be sufficient grounds to object to the court.5
(e) Regarding the factual findings of the decision­making body, the court will not intervene if sufficient evidence
was adduced before the body to justify such a finding and a reasonable person, based on the evidence concerned,
would have come to the same conclusion.6
(f ) The member must be afforded sufficient and reasonable opportunity to state his or her case according to
the audi alteram partem principle.7 At the hearing the general principles should be followed which are used in courts
with regard to the admissibility of evidence, namely that hearsay evidence is not allowed, only the best available
evidence should be allowed, and a new charge should not be put to the member without giving him or her a
reasonable opportunity to prepare him­ or herself.8
(g) A member should first exhaust all the internal procedures which are available in terms of the constitution of
the trade union to solve his or her problem fairly before approaching the court for relief, for instance by appealing
first to a higher authority in the trade union.9 Similarly, if the body which made the decision offers to reconsider the
decision, the prejudiced person should accept this and not, on account of that decision, apply to the court, even
though that decision may be disputable.10
(h) If the management or executive committee of a trade union is endowed with certain powers by the
constitution, these should not be abused but should only be applied for the purpose for which they were
granted.11
(i) If the union has expelled a member in terms of the constitution and it appears afterwards that the
expulsion was a mistake, the question is whether such member may claim damages from the union or the members
of its management if he or she has indeed suffered damages. Even if the constitution provides for such a claim, the
member would not be entitled to exercise this right if the management or executive committee acted bona fide and
honestly.12
( j) If the union constitution provides that a member of the disciplinary committee may give evidence at a
hearing, this would mean that he or she is acting simultaneously as judge and witness. Ordinarily this procedure
will not be allowed but the member cannot object to it if he or she consented to becoming a member in terms of the
said constitution. A court will only intervene if the member can prove that the witness was not objective and
impartial.13
(k) If the deciding body or a member thereof at any time receives information which is prejudicial to the
member, the latter should be informed so that he or she can refute it.14
(l) A decision to terminate or suspend the membership of a union member is of immediate effect,
notwithstanding the provision in the constitution for appeal to a higher authority, unless the constitution lays down
that the decision is suspended until the appeal has been completed.15
1 African Congregational Church v Dimba 1935 WLD 29; Du Plessis v Building Workers' Industrial Union
1948 3 SA 1059 (W); Theron v FAWU 1997 ILJ 1046 (LC); Cronje v United Cricket Board of SA 2001
JOL 9033 (T); 2001 ILJ 2577 (T).
2 SATAWU v Zondo 2015 ILJ 2348 (LC); Zondo v SATAWU 2015 ILJ 2916 (LC); GIWUSA v Maseko 2015
ILJ 2874 (LC).
3 See Theron v Ring van Wellington van die NG Sendingkerk in SA 1976 2 SA 1 (A) 35; Kimmelman v
Amalgamated Society of Woodworkers of SA 1941 WLD 212; SATAWU v Zondo supra.
 4 Jockey Club of SA v Feldman 1942 AD 340 359. See also Petersen v Amalgamated Union of Building
Trade Workers of SA 1973 2 SA 140 (E).
5 Jockey Club of SA v Feldman supra 350.
6 Ibid; Turner v Jockey Club of SA 1974 3 SA 633 (A).
7 See Kadalie v Hemsworth 1928 TPD 495; Theron v Ring van Wellington van die NG Sendingkerk in SA
s u p r a 2 9 ; T a i t z 1 9 7 8 A J 1 2 0 ; S A T A W U v Z o n d o s u p r a ; C o r d e r 1 9 8 0 T H R H R 156; Wiechers
Administratiefreg 237; Baxter Administrative Law 542. See also EIWUSA v Abrahams 1982 2 SA 326
(E); Grundling v Van Rensburg 1984 4 SA 680 (W); Sibanyoni v University of Fort Hare 1985 1 SA 19
(Ck); Troskie v Verster 1997 ILJ 100 (O).
8 See Turner v Jockey Club of SA supra 633; Taitz 1982 THRHR 245.
9 Jockey Club of SA v Feldman supra 350; Theron v FAWU supra. The exception to this principle would
be if the parties expressly agreed that the decision of the management of the trade union would be
final but then the requirement would be that the said body must have acted bona fide, complying with
the constitution of the trade union and the principles of natural justice. See also Crisp v SA Council of
the Amalgamated Engineering Union 1930 AD 225; Shadrach v Garment Workers Union of Cape
Peninsula 1946 CPD 906; Odendaal v Kerkraad van die Gemeente Bloemfontein­Wes van die NG Kerk
in die OVS 1960 1 SA 160 (O); Kachelhoffer 1965 THRHR 224; Wiechers 304.
10 De Wet v SA Mineworkers Union, unreported (TPD) 1938.
11 Maxwell v Amalgamated Bricklayers Union 1939 TPD 300; Gründling v Beyers 1967 2 SA 131 (W);
Zondo v SATAWU 2015 ILJ 2916 (LC); Baxter 1980 THRHR 324.
12 See Matthews v Young 1922 AD 492.
13 Marlin v Durban Turf Club 1942 AD 112. See also Troskie v Verster supra.
14 Jockey Club of SA v Feldman 340.
15 Dennis v Garment Workers' Union, Cape Peninsula 1955 3 SA 232 (C); EIWUSA v Abrahams supra;
SATAWU v Zondo 2015 ILJ 2348 (LC). See also Theron v Ring van Wellington van die NG Sendingkerk
in SA supra; D'Oliveira 1976 THRHR 211; Taitz 1978 AJ 109; Baxter 1979 SALJ 607.

CONTROL AND ADMINISTRATION OF TRADE UNIONS

504 Accounting records and audits It is compulsory for a registered trade union to:
(a) keep proper books and records of its income, expenditure, assets and liabilities;1 and
(b) prepare an annual statement of income and expenditure as well as a balance sheet of its assets, liabilities
and financial position of the previous year.2
The accounting books and financial statements of the trade union must be audited by an auditor according to
professional standards at least once a year. 3 The auditor must furnish the trade union with a report stating that
the union has complied with:
(a) the financial provisions of its constitution;4 and
(b) if applicable to the trade union, the relevant provisions of closed shop and agency shop agreements.5
The abovementioned statements and auditor's report must be submitted to a meeting of members or
representatives of the trade union6 and otherwise be made available for inspection by members.7
1 Labour Relations Act 66 of 1995s 98(1)(a).
2 S 98(1)(b). These financial statements must be prepared within 6 months after the end of the financial
year. See also UPUSA v Registrar of Labour Relations 2010 ILJ 198 (LC); NEWU v Minister of Labour
2010 ILJ 574 (LAC).
3 S 98(2)(a).
4 S 98(2)(b)(i).
5 S 98(2)(b)(ii).
6 S 98(3)(b).
7 S 98(3)(a).

505 Custody of documents A registered trade union must preserve and keep all books of account, records of
subscriptions paid, financial statements, auditor's reports, supporting vouchers, minutes of meetings and ballot
papers for at least three years.1 A list of its members must also be kept.2
1 Labour Relations Act 66 of 1995ss 98(4) 99(b) (c).
2 S 99(a). See UPUSA v Registrar of Labour Relations 2010 ILJ 198 (LC).

506 Furnishing of information to the registrar A registered trade union must provide to the registrar:
(a) the names and addresses of office­bearers of the trade union within 30 days of their appointment or
election;1
(b) the new address of the trade union 30 days before it takes effect;2
(c) by 31 March every year, a statement of the number of members on 31 December of the previous year;3
(d) the auditor's report and financial statements within 30 days of having received them;4 and
(e) an explanation within 30 days in respect of any query about the membership statements, financial
statements or auditor's report.5
1 Labour Relations Act 66 of 1995s 100(d).
2 S 100(e).
3 S 100(a).
 4 S 100(b).
5 S 100(c). See in general NEWU v Minister of Labour 2010 ILJ 574 (LAC).

507 Amalgamation of trade unions The amalgamation of two or more trade unions to create a new trade union is
possible provided the constitutions of the existing trade unions provide for amalgamation and their members
consent thereto.1 Any registered trade union may decide to amalgamate with any other trade union2 and then
apply to the registrar for registration of the amalgamated trade union.3 After registration of the new union, the
registration of the amalgamating trade unions must be cancelled.4 The consequences of the registration of such an
amalgamated trade union are that:
(a) all the assets, liabilities, rights and obligations of the old trade unions are transferred to the amalgamated
trade union;5 and
(b) the amalgamated trade union succeeds the amalgamating trade unions in respect of rights, funds, court
orders, awards, collective agreements or other agreements, periodic deductions and subsidies as well as the
membership of any council.6
1 See of Labour Relations Act 66 of 1995s 95(5)(v).
2 S 102(1).
3 S 102(2).
4 S 102(3). See also s 102(4).
5 S 102(5)(a).
6 S 102(5)(b). See also Amalgamated Union of Building Trade Workers of SA v SA Operative Mason's
Society 1957 1 SA 440 (A).

508 Winding­up of trade unions The Labour Court may order the winding­up of a trade union if:
(a) the trade union has decided thus and has requested the court for an order to be wound up;1 or
(b) the registrar or any member of the trade union requested the court for its winding­up.2
If any person not represented before the Labour Court may be affected by such an order, the court must take
this into consideration when issuing the order. 3 The court may appoint a suitable person as liquidator. 4 His or her
fees will be determined by the registrar of the Labour Court.5 In the event that assets remain after the discharge of
the union's liabilities, and these cannot be dealt with in terms of its constitution, the liquidator must realise these
assets and pay the proceeds to the Commission for Conciliation, Mediation and Arbitration for its own use.6 Similarly
it would not be inappropriate for an employer or any union member to request the Registrar of Labour Relations to
wind up the union or cancel its registration.7
1 Labour Relations Act 66 of 1995s 103(1)(a).
2 S 103(1)(b).
3 S 103(2).
4 S 103(3).
5 S 103(4)(a). See also s 103(4)(b)­(c).
6 S 103(5).
7 SAA v NTM 2016 ILJ 2128 (LC).

509 Appeal against decision of the registrar Any person who feels aggrieved by any decision of the registrar to
deregister a trade union may within 30 days after written notice of the decision demand that reasons for the
decision be given.1 Any person aggrieved by the decision may after provision of the reasons (which must be
furnished within 30 days),2 appeal against the decision to the Labour Court within 60 days.3 The decision of the
registrar may also be taken on review.4
1 Labour Relations Act 66 of 1995s 111(1). See also Staff Association for the Motor & Related Industries
v Motor Industry Staff Association 1999 ILJ 2552 (LAC).
2 S 111(2).
3 S 111(3). S e e a l s o s 111(4); SWA Munisipale Personeel Vereniging v Minister of Labour
1978 1 SA 1027 (SWA); NUDW v Minister of Labour 1969 3 SA 477 (C); Staff Association for the Motor
& Related Industries v Motor Industry Staff Association supra; NEWU v Mtshali 2000 3 BLLR 337 (LC);
WUSA v Crouse 2005 ILJ 1723 (LC); Western Cape Workers Association v Minister of Labour 2005 ILJ
2221 (LC); Crouse v WUSA 2008 ILJ 2571 (LC); CCMA v Registrar of Labour Relations 2010 ILJ 2886
(LC); GDPEO v Registrar of Labour Relations 2011 ILJ 316 (LC); LAGEO v Minister of Labour 2011 ILJ
340 (LC); Unica Plastic Moulders CC v NUSAW 2011 ILJ 443 (LC); NEWU v CCMA 2011 ILJ 2095 (LAC);
CAESAR v Registrar of Labour Relations 2012 ILJ 2085 (LC); RAWU v Registrar of Labour Relations
2012 ILJ 2149 (LC) (no detailed reasons for cancellation); SAUCAEO v Registrar of Labour Relations
2 0 1 2 I L J 2 1 7 2 ( L C ) ; NEUSA v Registrar of Labour Relations 2 0 1 3 I L J 384 (LC) (employers'
organisation); MATUSA v Crouse 2015 ILJ 3122 (LC) (meaning of appeal).
4 S 158(1)(g). See SASGWU v Registrar of Labour Relations 2015 ILJ 3149 (LC).

EMPLOYERS' ORGANISATIONS

510 Definition and object "Employers' organisation" is defined as "any number of employers associated together
for the purpose, whether by itself or with other purposes, of regulating relations between employers and
employees or trade unions".1 The fundamental object of an employers' organisation is to control the relationship
between its members and their employees in a particular industry.2 In many instances, their role is as important as
that of trade unions.3
 1 Labour Relations Act 66 of 1995s 213. See Vidar Rubber Products v CCMA 1998 ILJ 1275 (LC).
2 Vidar Rubber Products v CCMA supra.
3 Organised business, like trade unions, is represented on NEDLAC; see par 40 ante. See also 1997
Annual Report of Department of Labour 21 according to which at the end of 1997 there were 258
registered employers' organisations of which the great majority were associated to Business South
Africa. See further Steel & Engineering Industries Federation v NUMSA (1) 1993 3 All SA 673 (T);
1993 4 SA 190 (T); Ex parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the RSA 1996 1996 I L J 821 (CC) (the right of individual employers to bargain
collectively); Labournet Holdings v McDermott 2003 ILJ 183 (LC).

511 Registration and administrative aspects The requirements and consequences in respect of trade union
registration are also applicable to the registration of employers' organisations.1 An employers' organisation
becomes a legal person on registration, with all the consequences resulting therefrom.2 The requirements in
respect of the constitution generally are the same as for a trade union, except for officials and office­bearers, where
a few provisions are different.3 These associations also enjoy the freedom of association4 and all the rights flowing
from it.5
An employers' organisation must prepare financial statements,6 which must be audited.7 It must also keep its
membership lists, minutes of meetings and ballot papers for a period of three years8 and provide the registrar with
the same information as is required from trade unions.9 Liquidation of such organisations10 and cancellation of
registration11 is effected in the same manner as in the case of trade unions.
1 Labour Relations Act 66 of 1995s 95(3). See NEUSA v Registrar of Labour Relations 2013 ILJ 384 (LC)
(appeal from decision of registrar).
2 S 97(1). See also SEIFSA v NUMSA (1) 1992 ILJ 1416 (T); SEIFSA v NUMSA (2) 1992 ILJ 1422 (T).
3 S 95(5). See also Cape Agri Employers Organisation v Registrar of Labour Relations 2011 ILJ 2952
(LC); SAUCAEO v Registrar of Labour Relations 2012 ILJ 2172 (LC) (breach of constitution).
4 See s 6.
5 See s 7.
6 S 98(1) (4).
7 S 98(2) (3) (4).
8 S 99.
9 S 100.
10 See ss 103 104.
11 S 106. See also National Employers Forum v Minister of Labour 2003 ILJ 954 (LC); GDPEO v Registrar
of Labour Relations 2011 ILJ 316 (LC); LAGEO v Minister of Labour Relations 2011 ILJ 340 (LC); Cape
Agri Employers Organisation v Registrar of Labour Relations supra; CAESAR v Registrar of Labour
Relations 2012 ILJ 2085 (LC); SAUCAEO v Registrar of Labour Relations supra.

FEDERATIONS OF TRADE UNIONS AND EMPLOYERS' ORGANISATIONS

512 General Federations of trade unions and employers' organisations have become important components in the
labour arena. The legislator has taken notice of this development and has decided to regulate the position and
organisational structure of these federations more closely.1
1 See Labour Relations Act 66 of 1995s 107.

513 Provision of information to registrar If a federation of trade unions or employers' organisations has as its
primary object the promotion of the interests of employees and employers respectively, it must within three months
after its establishment provide to the registrar and thereafter within 30 days after any appointment and election,
the names and addresses of its office­bearers and officials;1 and by 31 March of each year the names and
addresses of the members and the number of persons it represents.2 It must also provide a copy of its constitution
and an address for the service of documents.3
A federation must within 14 days after deciding to wind up send a copy of the resolution to the registrar, 4
whereupon the name of the federation will be removed from the register, if the registrar believes that the
federation has been sequestrated or wound up.5
1 Labour Relations Act 66 of 1995s 107(1)(b).
2 S 107(1)(a).
3 S 107(1)(c) (2).
4 S 107(1)(e).
5 S 107(3). See FSARU v Minister of Health, Welfare & Pensions 1981 2 All SA 412 (N); 1981 4 SA 894
(N).

BARGAINING COUNCILS AND OTHER BARGAINING BODIES

INTRODUCTION

514 General One of the primary objects of the Labour Relations Act 1 is to provide a framework for orderly
collective bargaining at sectoral level. Bargaining councils are central to this statutory imperative and provide a
regulated structure designed to enable employers' organisations and trade unions to collectively bargain to
determine wages, terms and conditions of employment and other matters of mutual interest in a specific sector and
area. A bargaining council consists of representatives of one or more registered trade unions and of one or more
registered employers' organisations.2 The bargaining council system is a manifestation of the policy objective of
establishing collective bargaining (self­government) at sectoral level within a wide framework of labour relations.
The concept of collective bargaining is established concretely within this system on a formal, organised basis, in
terms of which registered trade unions and employers' organisations are bound together on a voluntary basis as
bargaining parties in bargaining councils, which serve as co­ordinating bargaining entities at sectoral level.3 If the
parties reach consensus with regard to existing, amended or new conditions of employment, the collective
agreement is enforceable.4
1 66 of 1995. See s 1(c) (d).
2 See s 27(1).
3 S e e s 1(c) (d). See also National Police Service Union v National Negotiating Forum 1999 ILJ 1081
(LC); Free Market Foundation v Minister of Labour 2016 ILJ 1638 (GP) par 11.
4 See pars 532 et seq post and the discussion of the principles and requirements which obtain with
regard to collective agreements in pars 533 614 et seq post. With regard to the feature of voluntarism,
see TWIU (SA) v Fabricius 1987 ILJ 90 (T); NUTW v IC Cotton Textile Manufacturing Industry (Cape)
1988 ILJ 88 (IC); SANDU v Minister of Defence 2007 ILJ 1909 (CC); Fourie in The Private Regulations
of Industrial Conflict 67; Steenkamp et al 2004 ILJ 956; Van Jaarsveld 2008 THRHR 124.

515 Role of bargaining councils Essentially, bargaining councils constitute voluntary forums for negotiating,
concluding and resolving terms and conditions of employment and other matters of mutual interest within the sector
and area for which it is registered. Bargaining councils ­ previously called industrial councils ­ were traditionally the
most important statutory collective bargaining mechanism in South Africa, and the legislature intended to maintain
this position.1 The extent and impact of bargaining council activities appear from the fact that in 2005 there were 50
registered bargaining councils, which were responsible for 130 bargaining council agreements applicable to
approximately 20 000 employers and 2,3 million employees.2 However, their importance has been restricted by
developments in the trade union movement itself. As trade unions are a key component of the bargaining council
system, any union reluctance to participate will influence the importance of the bargaining council system.
As the number of trade unions has increased, along with union membership, the unions have concluded
recognition agreements with employers resulting in direct and more favourable employment agreements with
employers, thus obviating the need for more bargaining councils.3 The effect that this practice and the introduction
of workplace forums will have on the statutory but voluntary system of bargaining councils is difficult to assess, but
there is a view that the present dispensation should be simplified and that admission to bargaining councils should
be facilitated further, without affecting their efficiency and the requirements of voluntarism and acceptability.4
1 S e e Adonis v Western Cape Education Department 1998 ILJ 806 (LC); Godfrey, Maree and Theron
2006 ILJ 731.
2 See Statistics South Africa Labour Force Survey (2005). In the 1997­1998 NEDLAC Report on the State
of Social and Economic Matters in South Africa 54 it is stated that nearly 80 "industrial councils"
administered 139 agreements covering 810 589 workers and 70 389 employers. In January 2017 a
total of 38 private sector bargaining councils, 6 local government councils and 3 statutory councils
were registered with the Department of Labour.
3 See Cordova 1986 International Labour Review 641; Brown 1995 ILJ 979; Anstey 2004 ILJ 1829.
4 See Ministerial Task Team Draft Negotiating Document in the Form of a Labour Relations Bill ­
Explanatory Memorandum Government Gazette 16259, 10 February 1995 121­127; Explanatory
Memorandum on Labour Relations Bill B85B­95 287­288; Van Niekerk 1995 Contemp LL 31­33 and also
De Kock 1982 ILJ 77.

516 Definition of "bargaining council"1 A bargaining council is defined as a corporate body established by mutual
agreement between one or more employers' organisations on the one hand, and by one or more registered trade
unions on the other hand for the purpose of practising self­government over the area and sector in which the
parties represent the interests of the employers and employees respectively.2
1 The Labour Relations Act 66 of 1995s 213 definition cross­refers to s 27. See also s 50(1).
2 See Nicholson in The Challenge of the New Industrial Relations Dispensation in South Africa 104 and
also NPSU v National Negotiating Forum 1999 ILJ 1081 (LC) (bargaining forum of SA Police Service
deemed to be bargaining council).

FUNCTIONS OF BARGAINING COUNCILS

517 General The principal aim and function of a bargaining council as a collective bargaining and conciliation body
is to maintain labour harmony in the sector over which it exercises jurisdiction by means of collective agreements in
respect of conditions of employment and, whenever disputes arise between employers and employees, to resolve
them to the satisfaction of both parties.1
The functions of bargaining councils are multifarious by nature and, more specifically, include the following:2
(a) to conclude collective agreements;3
(b) to enforce those collective agreements;4
(c) to prevent and resolve labour disputes;5
(d) to perform the dispute resolution functions referred to in section 51;6 the bargaining council may by
collective agreement 7 provide for dispute procedures and the payment of appropriate fees for the conciliation and
arbitration proceedings;8
 (e) to establish and administer a fund to be used for resolving disputes;9
(f ) to promote and establish training and education schemes;10
(g) to establish and administer pension,11 provident, medical aid, sick pay, holiday, unemployment and
training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the
bargaining council or their members;12
(h) to develop proposals for submission to National Economic Development Labour Council or any appropriate
forum on policy and legislation that may affect the sector and area;13
(i) to determine by collective agreement the matters which may not be an issue in dispute for the purposes of
a strike or lock­out at the workplace;14
( j) to confer on workplace forums additional matters for consultation;15
(k) to provide industrial support services within the sector;16 and
(l) to extend the functions and services of a council to employees in the domestic and informal sector.17
1 See par 514 ante; Cameron et al The New Labour Relations Act 9; Jordaan 1989 ILJ 791. The primary
functions of bargaining councils were explained in Free Market Foundation v Minister of Labour 2016 ILJ
1638 (GP) par 12. See also LRA 66 of 1995s 50(2).
2 See Labour Relations Act 66 of 1995s 28; ICBI v Transnet Industrial Council 1991 I L J 69 (SCA);
http://www.labour.gov.za/DOL/legislation/acts/basic­guides/basic­guide­to­bargaining­councils.
3 S 28(1)(a). See regarding requirements and consequences of collective agreements pars 532 et seq
post; S v Allied Steel 1976 4 SA 164 (RA); SA Diamond Workers' Union v Master Diamond Cutters'
Association of SA 1982 ILJ 87 (IC); Consolidated Woolwashing & Processing Mill v President, Industrial
Court 1987 ILJ 79 (D); MIBC v Wolseley Panel Beaters 2000 ILJ 2132 (BCA); Lloyd v CCMA 2001 ILJ
1832 (LC); BCAWU v Kentz 2011 ILJ 506 (BCA) (collective agreement regarding solution of disputes);
PCASA v NUMSA 2015 ILJ 256 (LC); Plastics Convertors Association of SA v NUMSA 2016 I L J 2815
(LAC) (establishment of a negotiating forum); SAA v SA Cabin Crew Association, unreported case no
J949 (LC), 10 May 2017.
4 S 28(1)(b). S e e NIC Printing & Newspaper Industry v Copystat Services 1980 1 All SA 42 (W);
1980 3 SA 631 (W); Consolidated Woolwashing & Processing Mills v President, Industrial Court supra
87; BCCI, KwaZulu­Natal v Sewtech CC 1997 ILJ 1355 (LC); Kem­Lin Fashions CC v Brunton 2000 ILJ
1357 (LC); Kem­Lin Fashions CC v Brunton 2001 1 BLLR 25 (LAC); 2001 I L J 109 (LAC); MIBC v
COFESA 2001 ILJ 556 (BCA); CAPES v MIBC 2015 ILJ 137 (GP) (statutory powers); Rukwaya v Kitchen
Bar Restaurant 2016 ILJ 1466 (LC). See also s 33A and NBCCMA (Cape) v J 'n B Sportswear CC 2011 8
BLLR 756 (LC).
5 S 28(1)(c) read with s 51. See UAAWUSA v Minibus 1985 ILJ 265 (IC); Photocircuit SA v De Klerk 1991
ILJ 289 (A); BAWU v Prestige Hotels CC 1993 ILJ 963 (LAC); Mandhla v Belling 1997 12 BLLR 1605
(LC); Seardel Groups Trading v Andrews 2000 10 BLLR 1219 (LC); Softex Mattress v PPWAPU 2000 12
BLLR 1402 (LAC) (powers and conciliation functions); Tao Ying Metal Industry v Pooe 2007 ILJ 1949
(SCA); Mokoena v Mittal Steel SA 2007 ILJ 1391 (BCA); Samancor Chrome v MEIBC 2011 ILJ 1057
(LAC); NUM v Samancor 2011 ILJ 1618 (SCA); Langa v Skyline Global Logistics 2014 ILJ 1584 (LC)
(confidentiality of proceedings); NUMSA v J & L Lining Consultants 2015 ILJ 2954 (BCA) (accreditation);
CTP v Mphaphuli 2015 ILJ 1042 (LC) (interpretation of settlement agreement); UASA v Hulamin 2016
ILJ 1291 (BCA) (wage agreement dispute); SACTWU v Wynta Designs 2016 ILJ 1504 (BCA) (settlement
agreement made arbitration award).
6 S 28(1)(d). These powers are distinct and separate from the council's powers to enforce its
agreements under s 28(1)(b) and s 33A. See also Mandhla v Belling supra; Portnet v La Grange 1999
ILJ 916 (LC); Molemi v Hellmann Parcel Systems 1999 ILJ 2082 (LC); NBCRFI v Roets 1999 ILJ 2087
(LC); NUMSA v Driveline Technologies 1999 ILJ 2900 (LC); 2000 ILJ 142 (LAC) (conciliation); BCFMI v
Unique Kitchen Designs 2000 ILJ 419 (CCMA); Kem­Lin Fashions CC v Brunton supra; SALSTAFF v
Metrorail 2001 ILJ 1924 (BCA); NEWU v MEIBC 2001 ILJ 2689 (LC); Mollo v MEIBC 2010 ILJ 971 (LC)
(arbitration); Johannesburg City Parks v Mphahlani 2010 I L J 1205 (LC); Super Group Autoparts v
Hlongwane 2010 ILJ 1248 (LC) (standard of review); BIBC v CCMA 2011 ILJ 1305 (LC) (accreditation
to perform dispute resolution); NUMSA v J & L Lining Consultants supra; Rukwaya v Kitchen Bar
Restaurant supra; Van Uytrecht 1993 ILJ 1153; Brand 2002 ILJ 1733.
7 See Olivier v Ibhayi Service Manufacturers 2015 ILJ 2963 (BCA) (agreement lapsed); NUMSA v J & L
Lining Consultants supra (agreement not extended to non­parties).
8 S 51(9). See UASA v Hulamin supra (wage agreement).
9 S 28(1)(e).
10 S 28(1)(f ).
11 See MacKenzie 2010 ILJ 789.
12 S 28(1)(g).
13 S 28(1)(h).
14 S 28(1)(i).
15 Ss 28(1)( j) 84(2). See also par 585 post.
16 S 28(1)(k).
17 S 28(1)(l).

ESTABLISHMENT AND REGISTRATION OF BARGAINING COUNCILS

518 Parties to bargaining council One or more registered employers' organisations,1 and one or more registered
trade unions, may establish a bargaining council2 for a sector and area,3 provided that:
(a) employers and employees enjoy equal representation on the council;4 and
(b) a bargaining council may be established for more than one sector.5
Additional parties may subsequently be admitted by the bargaining council upon application in terms of section
56(1). The prospective party must comply with the mandatory provisions of the council's constitution, including any
prerequisite thresholds. An unsuccessful applicant may apply to the Labour Court for an order admitting it.6
1 Individual employers and employees are therefore not permitted to become parties to a bargaining
council ­ as was previously the case ­ and will have to form or join an organisation and through this
organisation participate in the affairs of the council. See also NBCCMI v GFWP Co­op 2015 ILJ 2706
(BCA); Plastics Convertors Association of SA v NUMSA 2016 ILJ 2815 (LAC).
2 Labour Relations Act 66 of 1995s 27(1). The parties to a bargaining council also include the parties who
are admitted after its establishment: ss 30(1)(o) 56.
3 S 27(1). The registered scope of a trade union need not coincide with the registered scope of the
bargaining council: PPWAWU v Pienaar 1993 ILJ 1187 (A).
4 S 30(1)(a).
5 S 27(4).
6 S 56(5). See Fuel Retailers Association of SA v MIBCO 2001 6 BLLR 605 (LC).

519 Establishment procedure The establishment of a bargaining council takes place by:
(a) the acceptance of a constitution which complies with the prescribed statutory requirements;1 and
(b) the registration of the bargaining council in terms of the Act.2
1 Labour Relations Act 66 of 1995s 27(1)(a).
2 Ss 27(1)(b) 29. The Registrar of Labour Relations is the custodian of the registry.

520 Registration procedure The registration procedure for bargaining councils is similar to that for trade unions.1
The parties who want to establish a bargaining council must furnish the registrar with:
(a) the prescribed forms duly completed;2
(b) a copy of the constitution of the council;3 and
(c) any other information that will assist the registrar in determining whether or not the bargaining council
complies with the registration requirements.4
1 See pars 474­483 ante. See also Labour Relations Act 66 of 1995 Sch 7 item 7(1) which states that an
industrial council registered before the commencement of the Act is deemed to be a bargaining council
in terms of the Act.
2 S 29(1)(a).
3 S 29(1)(b). A constitution validly adopted by the council constitutes a collective agreement binding
between the parties to the council. See SALGA v IMATU 2014 6 BLLR 569 (LAC) and SACTWU v Yarntex
2013 ILJ 2199 (LAC) pars 64­68. A council may not perform any act other than in accordance with its
constitution: University of the North v Franks 2002 8 BLLR 701 (LAC).
4 S 29(1)(c). See also s 29(2).

521 Objections to registration The registrar must publish a notice of the application in the Government Gazette
stating that the general public may object to the application within 30 days of the notice. The objections, with
grounds, must also be served on the applicant.1 The objections may be based on any of the following grounds:
(a) that the applicant has not complied with the prescribed requirements;2
(b) that the sector and area for which application is made is not appropriate;3 or
(c) that the applicant is not sufficiently representative4 in the sector or area for which application is made.5
The most important objection raised in the past to the proposed registration of an industrial council was that
such council was not sufficiently representative of the area or the interests it was supposed to represent. As the
previous Labour Relations Act 6 did not state what "sufficiently representative" meant, it was left to the discretion of
the registrar. Recently the courts have assigned a meaning to this concept so that it is no longer a moot point.7
1 Labour Relations Act 66 of 1995s 29(3). A copy of this notice must also be sent to NEDLAC: ibid.
2 S 29(4)(a).
3 S 29(4)(b).
4 See fn 7 infra.
5 S 29(4)(c). If the registrar requires further information, the objector should furnish him or her with it:
s 29(5).
6 28 of 1956 s 19(4).
7 See pars 621­622 post; R v Reichlin 1939 AD 271; NIC for the Iron, Steel, Engineering & Metallurgical
Industry v Photocircuit SA; Photocircuit SA v Minister of Manpower 1993 ILJ 878 (C). See also s 49 and
Valuline CC v Minister of Labour 2013 6 BLLR 614 (KZP).

522 Determination of representativeness When considering the representativeness of the parties to the council
or of parties applying for registration of a council, the registrar, having regard to the nature of the sector and the
area for which registration is sought, may regard the parties as representative of the whole area although the
parties have no members in part of the area.1 If a bargaining council has a collective agreement that has been
extended by the minister, the council must inform the registrar annually in writing regarding the information
specified in section 49(3) and of the number of employees who are:
(a) covered by the collective agreement;
(b) members of the trade unions that are parties to the council; and
 (c) employed by members of employers' organisations that are party to the council.2
If so requested by the registrar, a bargaining council other than the council referred to in section 49(2) must
provide the registrar with the same information in writing.3 This section is, however, not applicable to the public
service.4
1 Labour Relations Act 66 of 1995s 49(1). This provision is applicable to both bargaining and statutory
councils.
2 S 49(2).
3 S 49(3). See also s 49(4) regarding proof of representativeness, and s 54(4) in respect of compliance;
Valuline CC v Minister of Labour 2013 6 BLLR 614 (KZP).
4 S 49(5).

523 Procedure regarding objections The applicant is entitled to respond within 14 days after the period of
objections and must serve a copy of his or her response on the objector. 1 The registrar must then submit the
application, the objections and responses, if any, to the National Economic Development and Labour Council
(NEDLAC) for consideration.2 NEDLAC must within 90 days after receipt of these documents from the registrar:3
(a) consider the appropriateness of the sector and area for which application is made;
(b) demarcate the appropriate sector and area for which the bargaining council should be registered; and
(c) report to the registrar.
If NEDLAC is not able to demarcate the sector and area, the minister must make the demarcation and advise the
registrar.4 In determining the appropriateness of the demarcated area and sector, both NEDLAC and the minister
must endeavour to give effect to the primary objects of the Act.5
1 Labour Relations Act 66 of 1995s 29(6).
2 S 29(7).
3 S 29(8).
4 S 29(9).
5 S 29(10).

524 Requirements for registration The registrar must:

(a) consider the application and additional information provided by the applicant;1 and
(b) determine whether:
(i) the provisions of section 29 have been complied with;2
(ii) the constitution of the bargaining council complies with section 30;3
(iii) the constitution provides for the representation of small and medium­sized undertakings;4
(iv) the parties to the council are sufficiently representative of the sector and area as determined by the
National Economic Development and Labour Council (NEDLAC) or the minister;5 and
(v) there is no other bargaining or statutory council registered in the area applied for. The consequence
of this requirement is that only one council is permitted to be registered in a specific area or sector.6
If the registrar is satisfied that the applicant complies with the requirements for registration, the bargaining
council is registered.7 If the application does not comply with the requirements, the applicant must be notified with
reasons, and be given an opportunity to meet the said requirements within 30 days.8 If the applicant complies with
the requirements, it is registered9 and, if not, registration must be refused and all persons concerned notified.10
After registration, a registration certificate must be issued and sent to the applicant, with a certified copy of the
constitution.11
1 Labour Relations Act 66 of 1995s 29(11)(a).
2 S 29(11)(b)(i).
3 S 29(11)(b)(ii).
4 S 29(11)(b)(iii). See also National Manufactured Fibres Employers' Association v CWIU 1997 8 BLLR
1041 (LC).
5 S 29(11)(b)(iv). See also PSBC v Maseko 2001 2 BLLR 228 (LC); Fourie in The Private Regulation of
Industrial Conflict 70 et seq.
6 S 29(11)(b)(v).
7 S 29(11)(c).
8 S 29(12).
9 S 29(13).
10 S 29(14). See National Manufactured Fibres Employers' Association v CWIU supra.
11 S 29(15). The registration of a bargaining council does not mean that the parties to the council are
regarded as being sufficiently represented but only that the bargaining council as such is sufficiently
representative: R v Reichlin 1939 AD 271. See NIC for the Iron, Steel, Engineering & Metallurgical
Industry v Photocircuit SA; Photocircuit SA v Minister of Manpower 1993 ILJ 878 (C).

525 Scope of registration of bargaining council The registration certificate must specify the registered scope of
the bargaining council, that is the sector and area for which it is registered.1 The scope of a council may be varied
by the registrar, acting independently or on request of the council or the National Economic Development and
Labour Council (NEDLAC) if the sector or area within which the council is representative does not coincide with its
registered scope.2 The activities of a bargaining council must be in accordance with its registered scope, and any
act by the council beyond its jurisdiction is invalid.3 Whenever any doubt arises with regard to the registered scope
or jurisdiction of a bargaining council, both its constitution and registration certificate must be examined. If it
appears that the specific sector and area is clearly defined, the council will in law have jurisdiction in respect of that
sector and area only.4 Therefore, it is important that the constitution and registration certificate clearly describe the
sector and area.5
1 Labour Relations Act 66 of 1995S 29(15)(a). See also Genrec Mei v ICISEMI 1995 ILJ 51 (A).
2 S 58(1). See Servworx v Registrar of Labour Relations 2014 ILJ 3476 (LC) (requirements for variation
of scope). See also s 58(2). The registered ( jurisdictional) scope of a council may be wider than the
scope of the constitutions of the parties to the council: R v Reichlin 1939 AD 271; Tvl Manufacturers'
Association v Bespoke Tailoring Employers' Association 1953 1 SA 47 (A). In this regard a distinction
should be made between the statutory jurisdiction of a council and its constitutional jurisdiction:
Matshoba v Fry's Metals 1983 ILJ 107 (IC). The implication of this is that a trade union could be a
member of a bargaining council although its registered area and interests differ from that of the
bargaining council: ACTWUSA v NIC Leather Industry of SA 1989 ILJ 196 (IC); PPWAWU v Pienaar
1993 ILJ 1187 (A).
3 Tvl Manufacturers' Association v Bespoke Tailoring Employers' Association supra; R v G o l d b e r g
1959 3 SA 429 (T). See also S v Prefabricated Housing Corporation 1974 1 SA 535 (A) 538­539;
NUMSA v Firestone SA 1993 ILJ 101 (T); Bolhuis v Natyre 1995 3 BLLR 37 (IC).
4 Tvl Manufacturers' Association v Bespoke Tailoring Employers' Association supra; G e n r e c M e i v
ICISEMI supra.
5 Tvl Manufacturers' Association v Bespoke Tailoring Employers' Association s u p r a . S e e a l s o R v
Scapszak 1929 TPD 980; S v Prefabricated Housing Corporation supra; MAWU v Rheem SA 1987 ILJ
426 (IC); Photocircuit SA v De Klerk 1989 ILJ 634 (C); Genrec Mei v ICISEMI supra; IC for the Building
Industry (Western Province) v Transnet Industrial Council 1999 ILJ 69 (SCA).

526 Legal consequences of registration The foremost consequence of registration of a bargaining council is that
the council acquires legal personality.1 The fact of being a legal person has the following legal consequences:2
(a) The council is competent to act as plaintiff or defendant in legal proceedings.3
(b) It is competent to buy or acquire movable and immovable property or to possess or to alienate such
property.4
(c) It is otherwise competent to perform any act or function which it is empowered to or is required to be
performed in terms of its constitution.5
(d) The council is liable for its obligations whereas no liability devolves on an employer, employers'
organisation or trade union by virtue of the fact that it is a party to the council.6
(e) A council has all the powers, functions and duties conferred or imposed on it in terms of the Act, and has
jurisdiction to perform all the duties, functions and powers within its registered scope.7
(f ) No official, office­bearer or party to the council is personally liable for losses suffered by anyone for acts
performed in good faith by such official, office­bearer or party while performing functions for the council.8
1 Labour Relations Act 66 of 1995s 50(1): a registered council is a body corporate. The consequences
are the same as in the case of trade unions. See pars 480 et seq ante; NIC Printing & Newspaper
Industry v Copystat Services 1980 3 SA 631 ( W ) ; PSA v Public Service Co­ordinating Bargaining
Council 2001 ILJ 1878 (LC).
2 See s 50(1). See also s 50(2)­(4).
3 S e e NIC Printing & Newspaper Industry v Copystat Services supra; NIC Leather Industry of SA v
Parshotam & Sons 1984 1 SA 277 ( D ) . S e e a l s o Grafton Furniture Manufacturers v IC Furniture
Manufacturing Industry, Natal 1982 ILJ 294 (IC).
4 S 50(1).
5 See s 30(n); SAMWU v eThekwini Municipality 2008 ILJ 765 (LC). In R v Kolersohn & Silverman 1936
CPD 556 it was held that an industrial council has no jurisdiction over any institution which is not a
member of the industrial council.
6 S 50(3).
7 S 50(2). Registration does not mean that the activities of all the parties concerned should be the same.
See Knox v Mathias 1936 NPD 667.
8 S 50(4).

CONSTITUTION OF BARGAINING COUNCILS

527 Introduction The whole scheme of the Labour Relations Act 1 is that, once a bargaining council is registered,
legal effect will be given to the provisions of its constitution, which sets out the rules by which the parties thereto
have agreed to be bound. The Labour Appeal Court has held that the constitution of a bargaining council is a
collective agreement, which the Labour Court will enforce.2
1 66 of 1995.
2 See par 520 fn 3 ante. See also in this regard NBC for the Road Freight Industry v Snyman 2004 8
BLLR 784 (LC) para 4­5; Van Tonder v Pienaar 1982 2 SA 336 (SE) 341B­342A; Mall (Cape) v Merino
Ko­operasie Bpk 1957 2 SA 347 (C) 351E; City of Cape Town v IMATU 2016 ILJ 147 (LC).

528 Compulsory provisions The constitution of a bargaining council must provide at least for the following:
(a) the appointment, as members of the council, of representatives of the various parties, namely the
employers and the trade unions on an equal basis, as well as the appointment of alternates to the
representatives;1
(b) the representation of small and medium undertakings;2
(c) the appointment, election, dismissal, duties and powers of officials and office­bearers;3
(d) the circumstances and procedures in terms of which representatives must vacate their seats and the
procedure for their replacement;4
(e) the procedure for settling disputes between parties to the council,5 including disputes between individual
employers that are members of an employers' organisation, and a trade union, or its members;6
(f ) the admission of other parties to the council;7
(g) the convening and conducting of, and quorum and minutes required for, council meetings;8
(h) the procedure for making decisions;9
(i) the establishment and functioning of committees;10
( j) the resolution of a dispute between the parties to the council regarding the interpretation or application of
the constitution;11
(k) the purposes for which the funds of the council may be used;12
(l) the depositing and investment of funds of the council;13
(m) a procedure for exemption from collective agreements;14
(n) the delegation of powers and duties of the council;15
(o) a procedure for amending the constitution;16 and
(p) winding­up of the council.17
1 Labour Relations Act 66 of 1995s 30(1)(a).
2 S 30(1)(b).
3 S 30(1)(f ).
4 S 30(1)(c).
5 S 30(1)(i). See Wanenburg v MIBC 2000 ILJ 242 (LC); s 30(5) which provides that the settlement of
disputes may not be entrusted to the Commission for Conciliation, Mediation and Arbitration without its
agreement thereto.
6 S 30(1)( j). The disputes in question are the disputes which arise between members of the bargaining
council or parties thereof. See NIC Printing & Newspaper Industry v Copystat Services 1980 3 SA 631
(W). See also De Kock 1981 ILJ 16; Benjamin 1981 ILJ 19.
7 S 30(1)(o). See also s 56; PPWAWU v Pienaar 1993 ILJ 1187 (A). See further NUTW v IC Cotton
Textile Manufacturing Industry (Cape) 1988 ILJ 88 (IC); ACTWUSA v NIC Leather Industry of SA 1989
ILJ 894 (IC); NUTW v TWIUSA 1988 ILJ 361 (A). A trade union that applies to be admitted to a
bargaining council need not be registered for the same sector and area as the council: ACTWUSA v
NIC Leather Industry of SA 1989 ILJ 196 (IC).
8 S 30(1)(d).
9 S 30(1)(e).
10 S 30(1)(g).
11 S 30(1)(h). See also s 30(5).
12 S 30(1)(m).
13 S 30(1)(l).
14 S 30(1)(k). See also par 536 post; Armstrong Interiors v Furniture, Bedding & Upholstery Industry
Bargaining Council 2001 ILJ 553 (BCA); TSW Manufacturing v NUMSA 2001 ILJ 1752 (ARB); Tao Ying
Metal Industry v Pooe 2006 ILJ 137 (LAC).
15 S 30(1)(n).
16 S 30(1)(p).
17 S 30(1)(q). Regarding the withdrawal of a party from the council on a unilateral basis, see PPWAWU v
SAPAIF 1990 I L J 3 4 5 ( I C ) . S e e a l s o NUPSAW v GPSS Bargaining Council 2002 I L J 1936 (BCA)
(interpretation of constitution of council); SALGA v IMATU 2014 I L J 2811 (LAC) (interpretation ­
express terms).

529 Irregularities and defects No defect or omission from the constitution of a bargaining council, irregularity in
the election or appointment of a representative or his or her alternate to a bargaining council, or any chairperson
presiding over any meeting of the council or any of its committees, or any vacancy on the council, will have the effect
of rendering the constitution of such council invalid.1
1 Labour Relations Act 66 of 1995s 206 and see NEASA v Minister of Labour 2012 ILJ 929 (LC); NEASA v
MEIBC 2015 2 BLLR 157 (LC). In Plastics Convertors Association of SA v NUMSA 2015 ILJ 256 (LC) it
was held that s 206 applies only in the limited set of circumstances set out in s 206(2) and does not
validate acts contrary to the council's constitution.

530 Amendment of the constitution or name of council The provisions of the Labour Relations Act 1 in respect of
the amendment of trade union constitutions are mutatis mutandis applicable to bargaining councils.2 The same
applies to changing the name of a bargaining council.3
1 66 of 1995.
2 Ss 57(1)­(4). See par 489 ante.
3 Ss 57(5)­(8). See par 489 ante.
531 Inspection of constitution The constitution should be accessible to any person for inspection1 and anyone
may obtain a copy or extract from the registrar, on payment of the prescribed fee.2
1 Labour Relations Act 66 of 1995s 110(1)(b).
2 S 110(2).

COLLECTIVE AGREEMENTS CONCLUDED IN BARGAINING COUNCILS

532 General Collective bargaining, as discussed below,1 is a process by means of which employees in an
organised body (trade unions), negotiate with their employers in an organised entity (employers' organisation),
with regard to conditions of employment and, if such negotiations are successful and the parties reach consensus,
the consensus is formalised in a collective agreement.2 When the collective bargaining occurs under the auspices of
a bargaining council, the parties must observe the requirements of that council's registered constitution.3 Only
collective agreements validly concluded in the bargaining council are capable of ministerial extension to non­parties
by virtue of the provisions of section 32 of the Labour Relations Act.4 This should not be confused with collective
agreements concluded outside a bargaining council. The latter type of collective agreement, although not capable of
ministerial extension, may nevertheless be imposed on non­party employees provided the provisions of section
23(1)(d) of the Act were met.5
The agreement may take different forms, depending on the level on which and the circumstances under which
the collective bargaining between employees and employers was conducted.6 A distinction must be drawn between
a collective agreement concluded in terms of section 23 of the Act 7 and an agreement concluded in terms of section
32.8 Both, however, are collective agreements. 9 One of the primary functions of a bargaining council is to conclude
collective agreements and to revise these periodically by means of negotiation.10
1 See par 603 post.
2 S e e p a r s 533 et seq post regarding the requirements, definition, legal consequences, defects,
interpretation, etc of collective agreements. See also Photocircuit SA v NIC Iron, Steel, Engineering &
Metallurgical Industry 1996 ILJ 479 (A).
3 City of Cape Town v IMATU 2016 ILJ 147 (LC).
4 66 of 1995. See par 536 post.
5 NUMSA v Transnet SOC (P88/16) 2016 ZALCPE 14, 13 May 2016; AMCU v Chamber of Mines 2017 6
BCLR 700 (CC); 2017 ILJ 831 (CC); Sasol Mining v AMCU 2017 ILJ 969 (LC).
6 A collective agreement concluded in terms of section 23 of the Labour Relations Act is not similar to a
promulgated industrial council agreement concluded in terms of the Labour Relations Act 28 of 1956.
See Labour Relations Act 66 of 1995 Sch 7 item 13(1); BCCI (Natal) v COFESA 1998 ILJ 1458 (LC);
BCCI (Natal) v COFESA 1999 ILJ 1695 (LAC); SAMWU v Ethekweni Municipality 2006 ILJ 225 (BCA).
7 See pars 630 et seq post.
8 See par 536 post.
9 AMCU v Chamber of Mines 2016 ILJ 1333 (LAC).
10 S 28(1)(a). See Free Market Foundation v Minister of Labour 2016 ILJ 1638 (GP) par 12.

533 Requirements of collective agreement "Collective agreement" means a written agreement regarding
conditions of employment or any other matter of mutual interest,1 concluded between a registered trade union and
one or more employers or employers' organisations.2 From this definition it is clear that a number of requirements
should be complied with before the agreement constitutes a collective agreement for purposes of the Act.3 The
agreement need not be signed to be valid4 but must be in agreement with the constitution of the bargaining
council.5 Several legal consequences flow from the conclusion of the agreement.6
1 See par 632 post for a discussion of "matters of mutual interest". In Vanachem Vanadium Products v
NUMSA 2014 9 BLLR 923 (LC) it was held that "matters of mutual interest" must be given a wide
meaning to include all matters relevant to the employment relationship. See also City of Cape Town v
IMATU 2016 ILJ 147 (LC) (agreement must comply with provisions of council's constitution).
2 See Labour Relations Act 66 of 1995s 213 sv "collective agreement".
3 See pars 630­631 post for a discussion of the different requirements; City of Cape Town v IMATU 2016
ILJ 147 (LC).
4 SAPO v CWU 2010 ILJ 997 (LC); SAMWU v Weclogo 2000 10 BLLR 1160 (CCMA); Diamond v Daimler
Chrysler SA 2007 3 BLLR 197 (LC); NUMSA v Hendor Mining Supplies 2003 10 BLLR 1057 (LC).
5 City of Cape Town v IMATU supra.
6 See pars 634­635 post.

CONSEQUENCES OF BARGAINING COUNCIL AGREEMENTS

534 Binding nature of bargaining council agreements A collective agreement concluded in a bargaining council,
subject to the extension thereof and the constitution of the council, binds:1
(a) the parties to the bargaining council signatory to the collective agreement;2
(b) each party to the collective agreement and the members of other parties to the agreement in so far as the
agreement applies to them;3
(c) members of every party to the collective agreement, if the agreement regulates:
(i) the conditions of employment; or
(ii) the conduct of employees and employers in relation to each other;4
(d) the employees who are not members of a trade union that is party to an agreement,5 if:
 (i) the employees are identified and expressly bound by the agreement; and
(ii) that trade union or those trade unions has as its members the majority of employees employed by the
employer in the workplace;6 and
(e) the parties only for the period of the agreement;7 when the period lapses, the parties are no longer
bound by the agreement.8
If the collective agreement is concluded for an indefinite period, any party to the agreement may terminate the
agreement by giving reasonable written notice to the other parties.9
1 Regarding the interpretation of collective agreements, see par 640 post. See also NBC for Leather
Industry of SA & BALLUCCI Footwear CC 2004 I L J 2107 (BCA); Bravo Group Sleep Products v
CEPPWAWU 2009 ILJ 1090 (LC); NEHAWU v MEC: Department of Health EC 2013 ILJ 2628 (LC) (status
of agreement); City of Cape Town v IMATU 2016 ILJ 147 (LC) (agreement must comply with provisions
of council's constitution).
2 Labour Relations Act 66 of 1995s 31(a).
3 S 31(b).
4 S 31(c). See Reactor Clothing v Robertson 1998 ILJ 1215 (LC).
5 S 23(1)(d). See AUSA v SA Airways 2015 ILJ 3030 (LC) (extended to non­parties); AMCU v Chamber
of Mines 2016 ILJ 1333 (LAC) (constitutionality, limitation on right to strike).
6 See Concor Projects v CCMA 2013 ILJ 2217 (LC), 2014 ILJ 1959 (LAC); Coetzer 2015 ILJ 94.
7 S 23(2) (4). See Baderbop v NUMSA 2002 2 BLLR 139 (LAC).
8 See ss 23(2) (4); S v Papastefanou 1979 3 SA 692 (T). See also Genrec Mei v ICISEMI 1995 ILJ 51
(A); NIC Printing & Newspaper Industry v Copystat Services 1980 3 SA 631 (W) 638 (constitution of an
industrial council providing for the enforcement of collective bargaining agreements); BCCI (Natal) v
COFESA 1999 ILJ 1695 (LAC); Bravo Group Sleep Products v CEPPWAWU supra (party failed to sign
agreement); SAFCEC v NUM 2010 ILJ 426 (LC) (contents).
9 S 23(4). See SA Fed CEC v NUMSA 2013 ILJ 2084 (LC).

535 Duties of employers in respect of collective agreements If an employer is subject to a bargaining council
agreement, he or she is under a duty to:
(a) keep a record of all persons in his or her service, of the salaries or wages paid and the hours worked;1
(b) have available details of the agreement at all times on the premises and make these available to an
employee if requested to do so;2
(c) deduct trade union membership dues in respect of the trade union concerned, from the wages or salary of
the employee;3 and
(d) deduct an agency fee from the wages of employees who are not members of a representative trade
union.4
1 Labour Relations Act 66 of 1995s 205.
2 S 204(a) (c).
3 S 13(2).
4 S 25(1). For further duties of the employer, see ss 13(5) 205(2) (3).

EXTENSIONS AND EXEMPTIONS OF BARGAINING COUNCIL AGREEMENTS

536 Extension of bargaining agreements to non­parties A bargaining council may request the minister in writing
to extend a collective agreement concluded in the council to any non­party that falls within its registered scope.1
However:
(a) one or more trade unions whose members are the majority of the trade union members on the council
must vote in favour of the extension;2 and
(b) one or more employers' organisations whose members employ the majority of the employees employed by
the members of employers' organisations that are party to the bargaining council must vote in favour of the
extension of the agreement.3
At the request of a bargaining council, the Minister may extend the duration of the collective agreement by notice
in the Government Gazette.4
1 Labour Relations Act 66 of 1995s 32(1). See also CNB Industries v NIC Leather Industry of SA 1994 12
BLLR 21 (LAC); NIC Leather Industry of SA v Naidoo 1996 ILJ 856 (N); Kem­Lin Fashions CC v Brunton
2001 1 BLLR 25 (LAC); 2001 ILJ 109 (LAC) (subsequent to extension non­party becomes a party for all
intents and purposes); NEASA v Minister of Labour 2013 ILJ 1556 (LC); Profal v NEWU 2003 ILJ 2416
(BCA); Xinergistics Management Services v NBCRFI 2004 ILJ 1804 (BRA); Bravo Group Sleep Products
v CEPPWAWU 2009 ILJ 1090 (LC); NEASA v MEIBC 2015 ILJ 732 (LC); Free Market Foundation v
Minister of Labour 2016 ILJ 1638 (GP); NEASA v Minister of Labour 2014 ZALCJHB 524, 12 December
2014; AMCU v Chamber of Mines 2016 ILJ 1333 (LAC) par 121; Motor Industry Staff Association v
Macun 2016 ILJ 625 (SCA); AMCU v Chamber of Mines 2017 6 BCLR 700 (CC); 2017 ILJ 831 (CC) (s
23; permitting private actors to exercise public power); City of Cape Town v IMATU 2016 ILJ 147 (LC)
(meaning of "concluded in the Council"); Hofman 2009 Obiter 197.
2 S 32(1)(a). See TAWUSA v Putco 2016 ZACC 7 (on majoritarianism).
3 S 32(1)(b). Absent these jurisdictional requirements, the council is not empowered to make a request
to the minister: Plastics Convertors Association v MEIBC 2017 ZALCJHB, 10 March 2017. See also
Walele v City of Cape Town 2008 11 BCLR 1067 (CC); 2008 6 SA 129 (CC) par 60 ("all jurisdictional
facts must be objectively justiciable, whatever their wording."); City of Cape Town v IMATU 2016 ILJ
 147 (LC).
4 S 32(6).

537 Minister's requirements for extension of agreement to non­parties The minister will only extend a collective
agreement if he or she is satisfied that:1
(a) the decision of the council to request the extension complies with the formal requirements specified in
section 32(1);2
(b) the requirements with regard to a majority of employees and members of employers' organisations,
employing the majority of the employees falling within the scope of the agreement, have been complied with.3 The
minister may extend a collective agreement, despite the aforementioned provisions, if:4
(i) the parties to a bargaining council are sufficiently representative5 within the registered scope of the
council; and
(ii) the minister is satisfied that collective bargaining at sectoral level (including the public service as a
whole) may be undermined if extension of the agreement is not effected;6
(iii) the minister has published a notice in the Government Gazette stating that an application for an
extension of the collective agreement in terms of this subsection has been received and inviting comment within 21
days of the publication of the notice;7 and
(iv) the minister has considered all the comments received;8
(c) the non­parties concerned fall within the registered scope of the council;9
(d) the bargaining council has an effective procedure to deal with applications for exemptions from the
provisions of a collective agreement that is also able to decide an application within 30 days;10
(e) the agreement provides for the appointment of an independent body to hear any appeal, as soon as
possible and not later than 30 days after the appeal is lodged against the refusal of a bargaining council to grant or
withdraw an exemption to non­parties;11
(f ) the agreement contains criteria which the independent body should apply in considering the appeal in
respect of exemptions;12 and
(g) the agreement does not discriminate against non­parties.13
If these requirements are met, the minister must within 60 days after receiving the request extend the
agreement, by stating in a notice in the Government Gazette that the agreement will be applicable to the non­
parties indicated in the notice, from a specified date and for a specified period.14
1 See Labour Relations Act 66 of 1995s 32(3); NEASA v Minister of Labour 2013 ILJ 1556 (LC); Valuline
CC v Minister of Labour 2013 I L J 1404 (KZP); CAPES v MEIBC 2015 I L J 137 (GP); Free Market
Foundation v Minister of Labour 2016 ILJ 1638 (GP) (values underpinning s 32 and purpose); AMCU v
Chamber of Mines 2016 ILJ 1333 (LAC); NEASA v Minister of Labour 2014 ZALCJHB 524, 12 December
2014.
2 S 32(3)(a). See Free Market Foundation v Minister of Labour supra.
3 Ss 32(3)(b) (c). See Free Market Foundation v Minister of Labour supra pars 36 112.
4 S 32(5). S e e a l s o Free Market Foundation v Minister of Labour s u p r a p a r 8 2 ( s t a n d a r d o f
reasonableness).
5 Where the majority threshold is not met, s 32(5) introduces a ministerial discretion. When determining
this aspect, the composition of the workforce including the number of non­standard employees
employed must also be considered: s 32(5A). "Sufficiently representative" is, however, not defined in
the Act. In keeping with the legislature's policy choice of majoritarianism, it is submitted that
"sufficiently representative" in the context of s 32(5) should be fairly close to the 50% threshold.
6 S 32(5)(b).
7 S 32(5)(c).
8 S 32(5)(d). The minister's decision must be lawful, reasonable and procedurally fair. See also
Promotion of Administrative Justice Act 3 of 2000s 3(1) a n d Free Market Foundation v Minister of
Labour supra.
9 S 32(3)(d).
10 S 32(3)(dA). See also s 32(11).
11 S 32(3)(e). No person involved in a trade union or employers' organisation may be a member or
participate in the deliberations of an appeal body: s 32(3A).
12 See s 32(3)(f ) and par 538 post. The exemption criteria must be fair and promote the primary objects
of the Act.
13 S 32(3)(g).
14 S 32(2). See too Kem­Lin Fashions CC v Brunton 2001 1 BLLR 25 (LAC); 2001 ILJ 109 (LAC) (legal
effect of extension); PSASA v Minister of Safety & Security 2010 ILJ 1471 (LC) (application of s 32(2);
NEASA v Minister of Labour supra; Valuline CC v Minister of Labour supra; Hofman 2009 Obiter 197.

538 Exemptions, change or cancellation of agreements As has been pointed out above,1 the constitution of a
bargaining council must contain a provision providing for a procedure to be followed in case of an exemption from an
collective agreement.2 The minister must also be satisfied that the bargaining council has provided for an effective
procedure to deal with applications from non­parties for exemptions from a collective agreement and to decide on
the application within 30 days.3 If the minister is requested to extend a collective agreement, he or she must be
satisfied that:4
(a) the agreement provides for the appointment of an independent body to hear any appeal5 against the
refusal of a bargaining council to grant or withdraw an exemption to non­parties;
 (b) the agreement contains criteria which the independent body should apply in considering the appeal in
respect of exemptions.6
If there is any cancellation,7 change or replacement of the agreement concerned by a new agreement, the
abovementioned requirements and procedures should also be complied with.8
1 See par 528(m) ante; LRA 66 of 1995s 30(1)(k).
2 Regarding exemptions, see Armstrong Interiors v Furniture, Bedding & Upholstery Industry Bargaining
Council 2001 ILJ 553 (BCA); Milltrans v NBCRFI 2002 ILJ 1930 (BCA); Ram International Transport v
NBCRFI 2002 ILJ 1943 (BCA); M4 Couriers & Accounting v NBCRFI 2003 ILJ 1042 (BCA); Pharmacall v
NBC for Road Freight Industry 2004 ILJ 1371 (BCA) (temporary exemption); SATAWU v Road Freight
Employers Association 2004 ILJ 1556 (BCA); Superstone Mining v NBC for Road Freight Industry 2004
ILJ 1567 (BCA); Xinergistics Management Services v NBCRFI 2004 ILJ 1804 (BCA); Tao Ying Metal
Industry v Pooe 2006 ILJ 137 (LAC); Tao Ying Metal Industry v Pooe 2007 ILJ 1949 (SCA); Loutrans v
NBC for Road Freight Industry 2008 ILJ 498 (BCA); Henko Bulk Carriers Trust v NBC Road Freight
Industry 2008 ILJ 2326 (BCA) (alternative proposals absent); CUSA v Tao Ying Metal Industries 2008
ILJ 2461 (CC) (duration of exemptions); Trafford Trading v NBCLI 2010 ILJ 761 (LC); Trafford Trading
v NBCLI 2011 ZALAC 35, 1 January 2011; SATAWU v NBCRT 2010 ILJ 2767 (BCA) (appeal procedure);
Bothma v Fisher Incorporated Attorneys (2012) 20 SALGBC 4.2.5; Ncungama v BC Liquor Catering &
Accommodation Trades KZN 2002 8 BLLR 766 (LC); Godfrey, Maree and Theron 2006 ILJ 1368.
3 S 32(3)(dA).
4 S 32(3) and see Coin Security Franchises v NBC Road Freight Industry 2007 ILJ 2620 (BCA).
5 S 32(3)(e). See also NBC for Clothing Manufacturing Industry v Zietsman 2013 ILJ 151 (LC); Colyn's
Transport CC v NBCRFI 2013 ILJ 2719 (BCA) (factors to be considered).
6 S 32(3)(f ) which also provides that the said criteria should be fair and promote the primary objects of
the Act. See also TSW Manufacturing v NUMSA 2001 ILJ 1752 (ARB) (criteria) and, in general, Tao Ying
Metal Industry v Pooe (SCA) supra (exemption expires on replacement with new agreement); Coin
Security Franchises v NBC Road Freight Industry supra; NBC Clothing Manufacturing Industry v
Zietsman supra.
7 See s 23(4); SA Fed CEC v NUMSA 2013 ILJ 2084 (LC).
8 S 32(7) (8). See par 535 ante. See also s 32(9) in respect of the extension of collective agreements in
the public service. If an extended agreement is terminated, the minister must be notified in writing:
s 32(10). See also NUMSA v Lumex Clipsal 2001 ILJ 714 (LC); PSA v Department of Education ­
Gauteng 2002 ILJ 1514 (BCA); NBC for Clothing Manufacturing Industry v Hot Chilli Workers PC 2013
ILJ 3377 (BCA) (employer to register employees). See also Subaru Pretoria v MIBCO 2014 ILJ 1080
(LC) (regarding the withdrawal of exemption).

ENFORCEMENT OF COLLECTIVE AGREEMENTS BY BARGAINING COUNCILS

539 Monitoring and compliance A bargaining council may monitor and enforce compliance with the provisions of
its collective agreements.1 A collective agreement may authorise a designated agent to issue a compliance order
requiring any person bound by a collective agreement to comply with the agreement within a specific period.2
1 Labour Relations Act 66 of 1995s 33A(1). A collective agreement is deemed to include any condition of
employment in terms of the Basic Conditions of Employment Act 75 of 1997s 49(1) and the rules of
any fund established by a council: Labour Relations Act 66 of 1995s 33A(2). See however Rukwaya v
Kitchen Bar Restaurant 2016 ILJ 1466 (LC). See also MIBC v COFESA 2001 ILJ 556 (BCA); BIBC Cape
of Good Hope v Hatlin 2001 8 BLLR 895 (LC); NBCLISA v Balucci Footwear CC 2004 ILJ 2107 (BCA);
NIC for the Iron, Steel, Engineering & Metallurgical Industry v PhotoCircuit SA 1993 4 All SA 49 (C);
1993 2 SA 245 (C) (collateral challenge). See also Oudekraal Estates v City of Cape Town 2004 3 All
SA 1 (SCA); 2004 6 SA 222 (SCA) par 33.
2 Designated agents are appointed by the Minister of Labour in terms of s 33. See also par 562 post.

540 Disputes The council may refer any unresolved dispute regarding compliance with a collective agreement to
arbitration by an arbitrator. 1 An arbitrator has the powers of a commissioner of the Commission for Conciliation,
Mediation and Arbitration,2 and may make an appropriate award, including imposing a fine for failure to comply with
a collective agreement.3 Although an award is final and binding, it may be taken on review.4 An arbitration award
prescribes after three years.5
1 Labour Relations Act 66 of 1995s 33A(4)(a). S e e s 33A(4)(b)­(c) regarding the procedure if a non­
party to the council objects to the appointment of an arbitrator. See too CUSA v Tao Ying Metal
Industries 2008 ILJ 2461 (CC); NBCCMI v J 'n B Sportswear CC 2011 8 BLLR 756 (LC); Rukwaya v
Kitchen Bar Restaurant 2016 ILJ 1466 (LC).
2 S 33A(5) and see s 33A(6) (7).
3 S 33A(8) and see s 33A(9) (13) (maximum fines); par 562 post; NUMSA v Kei Beiler Services 2005 ILJ
1571 (BCA); Kwadukuza Municipality v SALGBC 2009 ILJ 356 (LC) (solatium awarded).
4 S 33A(10) and see s 33A(11) (12) and NIC of the Printing & Newspaper Industry v Copystat Services
1980 3 SA 631 (W) 638; Trafford Trading v NBCLI 2010 ILJ 761 (LC) (standard of review).
5 NBC for Road Freight & Logistics Industries v Virtual Logistics 2016 ILJ 496 (BCA).

STATUTORY COUNCILS

INTRODUCTION

541 Historical background The need for statutory councils was first raised in September 1995. No mention was
made of such bodies during the early negotiating documents concerning a draft Labour Relations Bill which were
circulated in February and March 1995.1 However, during June and July 1995, the organised trade union movement,
in particular the Congress of South African Trade Unions, exerted pressure on the negotiating parties to implement
a central collective bargaining system for the whole country.
Employers opposed such a system because they feared compulsory collective bargaining and any legal
compulsion to negotiate in such a manner. A compromise was reached in that a system was designed providing for
the compulsory institution of statutory councils in certain circumstances, but the scope and powers of these councils
to bargain collectively is limited.2
1 See also "Draft Negotiating Document in the Form of a Labour Relations Bill" Government Gazette
16259, 10 February 1995 121 et seq.
2 See Le Roux 1996 Contemp LL 61 et seq.

FUNCTIONS AND POWERS OF STATUTORY COUNCILS

542 Powers and functions A statutory council has the following powers and functions:
(a) dispute resolution;1
(b) the establishment and promotion of training and education schemes;2
(c) the establishment and administering of pension, provident, medical aid, sick pay, holiday and
unemployment schemes and funds;3
(d) the conclusion of collective agreements in order to give effect to the above­mentioned activities;4 and
(e) any functions of a bargaining council, provided this is in terms of the statutory council's constitution.5
1 Labour Relations Act 66 of 1995s 43(1)(a). See also s 51 and J & J Freeze Trust v Statutory Council
SRF of SA 2011 ILJ 2966 (LC).
2 S 43(1)(b).
3 S 43(1)(c).
4 S 43(1)(d). See also s 43(3).
5 S 43(2). See also s 28.

ESTABLISHMENT AND REGISTRATION OF STATUTORY COUNCILS

543 Establishment: generally Statutory councils may be established in sectors and areas where bargaining
councils have not been registered.1 Either a representative trade union, that is a registered trade union, or two or
more registered unions acting jointly, whose membership comprises at least 30 per cent of the employees in a
sector and area,2 or a representative employers' organisation, that is a registered employers' organisation, or two
or more registered employers' organisations acting jointly, whose employees comprise at least 30 per cent of the
employees in a sector and area,3 may apply to the registrar for the establishment of a statutory council in a sector
and area.4
1 See Labour Relations Act 66 of 1995ss 39­48.
2 S 39(1)(a).
3 S 39(1)(b).
4 See par 545 post.

544 Application for establishment A representative trade union1 or a representative employers' organisation2
may apply for the establishment of such a council in a sector and area for which no bargaining or statutory council
has been registered.3 The registrar may establish a statutory council for a sector and area if the prescribed
requirements have been complied with.4 The registered trade unions and employers' organisations as well as any
other interested bodies in the sector and area must be invited to a meeting to reach agreement on:
(a) the registered trade unions and employers' organisations which will be parties to the council; and
(b) a constitution for the council.5
1 See Labour Relations Act 66 of 1995s 39(1)(a); par 543 ante.
2 See s 39(1)(b); par 543 ante.
3 S 39(2).
4 S 40(1). Before the registrar institutes such a council he or she must determine if the council complies
with the usual registration requirements for bargaining councils: s 39(3). See also s 39(4)­(6).
5 S 40(2) (3). The constitution must comply with the requirements of s 30.

545 Registration of statutory council If an agreement is concluded, registration of the council may be advised by
the minister, provided he or she is satisfied that:
(a) every employers' organisation or trade union which should have been included in the agreement is in fact
included; and
(b) the constitution complies with the prescribed requirements.1
If an agreement is not reached regarding the parties to the council and the constitution, a commissioner of the
Commission for Conciliation, Mediation and Arbitration (CCMA) must convene separate meetings with the trade
unions and employers' organisations to facilitate agreement between the parties regarding the establishment of a
statutory bargaining council and the number of representatives for each party on the council.2 If an agreement is
reached on the parties to the council, the parties must be admitted to the council.3 If no agreement is reached, the
minister must intervene and, according to a prescribed procedure, appoint the parties to the council as well as the
number of representatives of the parties.4
After the agreements have been concluded and the decisions made, the registrar must adapt the model
constitution taking into consideration the said agreements and decisions, register the council and certify its
constitution.5 A registration certificate must be issued specifying the scope of the council6 after the registration of
such a statutory council.
1 Labour Relations Act 66 of 1995s 40(4). See also s 40(5) for the various aspects which should be
considered by the minister; s 40(6) which provides that if he or she is not satisfied, a further meeting
must be arranged by the CCMA to facilitate the conclusion of a new agreement. In terms of s 40(7) the
registrar must, if so advised by the minister, register the council if the latter is satisfied that the
prescribed requirements have been complied with.
2 S 41(1).
3 S 41(2).
4 S 41(3)­(7).
5 S 41(8).
6 S 42(a). In terms of s 42(b) the certificate and a copy of the registered constitution must be sent by
the registrar to all the parties to the council.

546 Ministerial determinations A statutory council which, within its registered scope, is not sufficiently
representative, may submit a collective agreement to the minister on any matter concerning its powers or functions.
The minister must treat the agreement as a recommendation of the Employment Conditions Commission.1 If the
agreement complies with the prescribed requirements, the minister may promulgate it as a sectoral determination.2
The determination must provide for exemptions by an independent body and for criteria in terms of which such
exemptions are granted.3 The minister may in a determination impose levies on all employers and employees
subject to the jurisdiction of the council to defray the operational expenses of the council.4 Any dispute about the
interpretation and application of a determination may be referred to the Commission for Conciliation, Mediation and
Arbitration for resolution through conciliation and, if still unresolved, through arbitration.5
1 Labour Relations Act 66 of 1995s 44(1). See also s 43(1). The Employment Conditions Commission is
established in terms of the Basic Conditions of Employment Act 75 of 1997 s 59(1).
2 Labour Relations Act 66 of 1995s 44(2) read with the Basic Conditions of Employment Act 75 of
1997s 54.
3 Labour Relations Act 66 of 1995s 44(3).
4 S 44(4). See also s 44(5) with regard to the amendment or extension of any determination.
5 See s 45.

547 Withdrawal of party from statutory council If a party to a statutory council, that is a trade union or
employers' organisation, withdraws from the council, the minister may request the Commission for Conciliation,
Mediation and Arbitration to call a meeting with the remaining trade unions and employers' organisations in the
sector and area in order to facilitate a possible agreement on the trade unions and employers' organisations to be
parties of the council, as well as the number of representatives of the parties.1 If no agreement is reached, then a
special procedure is prescribed to solve the problem.2
1 Labour Relations Act 66 of 1995s 46(1).
2 S 46(2) and see s 41.

548 Change from statutory council to bargaining council A statutory council may resolve to register and function
as a bargaining council.1 The registrar must deal with such an application as if it were an application for registration
of an ordinary bargaining council.2 After registration of the council as a bargaining council, the registrar must
change the register of councils and the council's registration certificate to reflect the change.3 Any determination
valid at the time of registration of the bargaining council remains valid for its period of operation and may be
extended.4
1 Labour Relations Act 66 of 1995s 48(1).
2 S 48(2). Certain procedural requirements in respect of bargaining councils are, however, not
applicable: s 48(2).
3 S 48(3).
4 S 48(4). See also s 48(5) regarding the continuing duties of a council during the remaining period;
s 48(6) regarding the settlement of unresolved disputes.

549 Legal personality and amendment of constitution and name The following statutory provisions which are
also applicable to statutory councils have already been discussed above with regard to bargaining councils, namely:
(a) the effect of registration of a council, that is the acquisition of legal personality and the legal implications
thereof;1 and
(b) the amendment of the constitution and name of a council.2
1 See Labour Relations Act 66 of 1995s 50; par 524 ante. See also par 480 ante.
2 See s 57; par 528 ante. See also par 489 ante.
 GENERAL PROVISIONS REGARDING BARGAINING AND STATUTORY COUNCILS

Introduction

550 Generally Several provisions in the Labour Relations Act 1 contain the same provisions regarding statutory
and bargaining councils to which attention will now be directed. A few provisions which are only applicable to
bargaining councils will also be discussed in the paragraphs that follow.
1 66 of 1995.

551 Admission procedure Any registered trade union or employers' organisation may apply to a council to be
admitted as a party to the council.1 The application must be accompanied by the applicant's registration certificate,
constitution, details regarding its membership, the number of employees in the employ of its members if it is an
employers' organisation, the reasons why it should be admitted, and so forth.2 The council must come to a decision
within 90 days of the application and notify the applicant.3 If the application has failed, the applicant must be
notified thereof within 30 days of the decision, with reasons therefor. 4 The applicant may then apply to the Labour
Court for admission.5
1 Labour Relations Act 6 6 o f 1 9 9 5s 56(1). S e e PPWAWU v Industrial Council for the Furniture
Manufacturing Industry, Tvl 1994 ILJ 1352 (IC).
2 S 56(2).
3 S 56(3). See PCASA v NUMSA 2015 ILJ 256 (LC).
4 S 56(4).
5 S 56(5). See also s 56(6) regarding the powers of the Labour Court in this respect; Full Retailers
Association of SA v MIBC 2001 ILJ 1164 (LC); PSASA v Safety & Security Sectoral BC 2007 ILJ 1300
(LC) (requirements and factors).

DEMARCATION OF SECTORS AND AREAS

552 Introduction The purpose of demarcation is to determine wages, working conditions and social security of
workers and to regulate competition among employers.1 Any interested trade union, employer, employee,
employers' organisation or council may apply to the Commission for Conciliation, Mediation and Arbitration for a
determination (demarcation)2 regarding the question whether:
(a) any employee, employer or class of employees or employers is or was employed or engaged in a sector or
area;3 or
(b) any arbitration award or collective agreement or wage determination is or was binding on an employee or
employer or class of such persons.4
When two or more councils resolve a dispute regarding the abovementioned questions, the minister may publish
particulars of the agreement in the Government Gazette.5
1 See NTBC v De Klerk 2014 ILJ 1017 (LC).
2 For the meaning of "demarcation", see Dewdev v BC Canvas Goods Industry 2014 ILJ 1004 (LC);
NTBC v De Kock supra.
3 See SACTWU v Feltex 2002 ILJ 1906 (CCMA); NBC for Road Freight Industry v Ullman Bros 2004 ILJ
162 (CCMA) (purpose of Labour Relations Act 66 of 1995); Golden Arrow Bus Services v CCMA 2005
ILJ 242 (LC); NUMSA v Hendred Fruehauf Trailers 2008 ILJ 468 (CCMA); ASA Metals v MEIBC 2009 ILJ
425 (CCMA); Workforce Group v Deyzel 2015 ILJ 2173 (LC).
4 See s 62(1). See also COFESA & Ann's Infant Knitwear CC v IC Clothing Industry, Eastern Cape 1994 7
BLLR 23 (IC); Fraser Alexander Bulk Materials Handling v CWIU 1996 ILJ 713 (IC); IC Motor Transport
Undertaking (Goods) v Springbok Patrols 1996 9 BLLR 1140 (IC); BCCI, KwaZulu­Natal v Sewtech CC
1997 ILJ 1355 (LC); National Manufactured Fibres Employers Association v CWIU 1997 ILJ 1359 (LC);
IC Building Industry (Western Province) v Transnet Industrial Council 1991 ILJ 69 (SCA); GA Motor
Windows (East Cape) CC v Director, CCMA 2000 ILJ 323 (LAC); MIBC v COFESA 2001 ILJ 556 (BCA);
NUMSA & Zhous Enterprises 2004 ILJ 2114 (BCA).
5 S 62(2).

553 Demarcation procedure in Labour Court When a demarcation dispute is raised in the Labour Court, the
proceedings must be postponed and referred to the Commission for Conciliation, Mediation and Arbitration (CCMA)
for determination, provided the court is satisfied with regard to certain issues.1 The CCMA must appoint a
commissioner to resolve the dispute.2
1 Labour Relations Act 66 of 1995s 62(3). See BIBC v Naidoo 2000 ILJ 2253 (LC). The same procedure
applies if the dispute is raised in proceedings before an arbitrator about the interpretation of a
collective agreement. See s 62(3A); Johannesburg City Parks v Mphahlani 2010 ILJ 1205 (LC); 2010
ILJ 1804 (LAC); 2011 ILJ 1847 (SCA); Workforce Group v Van Zyl 2015 ILJ 2182 (LC).
2 S 62(4).

554 Commission for Conciliation, Mediation and Arbitration procedure If any of the above­mentioned
questions1 or a referral from the Labour Court is received by the Commission for Conciliation, Mediation and
Arbitration (CCMA),2 a commissioner must be appointed and the procedure in terms of section 138 of the Labour
Relations Act 3 must be applied.4 If the CCMA regards a demarcation dispute raised before it of substantial
importance, particulars of the dispute must be published in the Government Gazette, giving information as to where
and when written representations may be made.5
It is not uncommon for employees of the same employer to fall under the scope of different industries. The
registration with a particular council depends on the employer's dominant activity.6
Before the commissioner makes an award,7 he or she must consider such representations and consult with
NEDLAC.8 The award must be submitted to the Labour Court and the CCMA, with reasons.9 The CCMA may, if it
considers the award of substantial importance, publish it in the Government Gazette.10 The registration certificate of
the council must be amended by the registrar, if such change is necessitated by the award. 11 The reward may be
reviewed by the Labour Court.12
1 See par 552 ante.
2 See par 553 ante. A demarcation dispute needs not be preceded by conciliation before demarcation:
see Workforce Group v Deyzel 2015 ILJ 2173 (LC).
3 66 of 1995.
4 S 62(4). Any intervention by the Labour Court in uncompleted arbitration proceedings will be limited to
exceptional circumstances. See Workforce Group v National Textile BC 2011 ILJ 3042 (LC).
5 S 62(7). See also s 62(8).
6 See Henred Fruehauf v Marcus 2014 ILJ 3147 (LC).
7 Approach to be adopted: Dewdev v BC Canvas Goods Industry 2014 ILJ 1004 (LC); NTBC v De Kock
2014 ILJ 1017 (LC) (2 stages). See also Waterkloof Dienste CC v SATAWU 2004 I L J 174 (CCMA)
(factors determining demarcation); Richard Rentals v NBC for Road Freight Industry 2009 I L J 229
(CCMA) (3­part enquiry); NBCRFI v Marcus 2011 ILJ 678 (LC); NBCRFI v Marcus 2013 ILJ 1458 (LAC)
(approach).
8 S 62(9). See also CWIU v Smith & Nephew 1997 9 BLLR 1240 (CCMA); Coin Security v CCMA 2005 ILJ
849 (LC) (review of award); NBCRFI v Marcus 2011 ILJ 678 (LC) (factors to be considered); SAMWU v
Syntell 2013 ILJ 1263 (LC); 2014 ILJ 3059 (LAC) (attempted review of award).
9 S 62(10).
10 S 62(11).
11 S 62(12).
12 Coin Security v CCMA 2005 ILJ 849 (LC); NBCRFI v Marcus 2011 ILJ 678 (LC) (approach); NBCRFI v
Marcus 2013 ILJ 1458 (LAC) (approach); Henred Fruehauf v Marcus supra (grounds and test).

555 Amalgamation of bargaining councils Any bargaining council may decide to amalgamate with one or more
other bargaining councils.1 The amalgamating councils may apply for registration in the same manner as for any
other council.2 After the registration of the new council, the registration of the old councils must be cancelled.3 The
assets, rights, liabilities and obligations of the amalgamating councils are transferred to the new council4 and all the
collective agreements of the old bargaining councils remain in force for the duration of their terms, unless they are
amended or terminated by the amalgamated bargaining council.5
1 Labour Relations Act 66 of 1995s 34(1).
2 S 34(2).
3 S 34(3). See also s 34(4).
4 S 34(5)(a).
5 S 34(5)(b).

ADMINISTRATIVE MATTERS

556 Delegation of functions to committees A council may delegate any function to a committee but any decision
of such a committee may be set aside or amended by the council.1 Such a committee must consist of an equal
number of representatives of employers and employees.2
1 Labour Relations Act 66 of 1995s 55(1).
2 S 55(2).

557 Accounting records Every bargaining and statutory council must, in accordance with the standards of
accepted accounting principles and practice:
(a) keep books and records of its income, expenditure, assets and liabilities;1
(b) prepare within six months after the end of its financial year:
(i) a financial statement of the income and expenditure of the previous financial year; and
(ii) a balance sheet of its assets, liabilities and financial position at the end of the previous financial
year.2
1 Labour Relations Act 66 of 1995s 53(1)(a).
2 S 53(1)(b) and see s 54(4).

558 Audits All books and records must be audited annually. The auditor must report to the council, stating
whether all the applicable provisions of the constitution of the council have been complied with.1 The council must
make its financial statements and auditor's report available for inspection by the parties of the council and submit
the statements and report at a meeting of the council as provided for in its constitution.2 The money of the council
or any funds that are not required for its needs and expenses may only be invested in accordance with guidelines
prescribed by the Act.3
1 Labour Relations Act 66 of 1995s 53(2).
 2 S 53(3).
3 See s 53(5) and also s 53(6) (regarding funds) and s 54(4).

559 Keeping of records Every council must preserve all its accounting books, financial statements, auditor's
reports and supporting vouchers for a period of three years.1 The same requirement applies to the minutes of its
meetings.2
1 Labour Relations Act 66 of 1995s 53(4).
2 S 54(1) and see s 54(4).

560 Provision of information to the registrar Every council must provide the registrar with:
(a) its auditor's report and financial statements;1
(b) the address of the council and also any change thereof;2
(c) the names and addresses of its national office­bearers;3
(d) specific information on small enterprises which are members of or fall within the scope of a bargaining
council;4
(e) collective agreements concluded by the council;5 and
(f ) information regarding parties that have been admitted to or resigned from the council.6
The Labour Relations Act provides the registrar with extensive powers to ensure compliance with the above­
mentioned duties.7
1 Labour Relations Act 66 of 1995s 54(2)(a). See also s 54(2)(b) regarding requests from the registrar
relating to the report or statements.
2 S 54(2)(c).
3 S 54(2)(d) (e).
4 S 54(2)(f ).
5 S 54(3)(a).
6 S 54(3)(b).
7 S 54(4).

561 Access to information Any person is entitled to inspect:

(a) the registers of bargaining and statutory councils;1 and
(b) the registration certificates and constitutions of such councils at the office of the registrar.2
A party to a council or any member thereof may inspect any document such as records and statements that have
been furnished to the registrar by the council.3 By payment of the prescribed fee such person may procure copies or
extracts of the documents.4 Furthermore, any person is entitled, free of any charge, to the names and addresses of
national officials of the council, as well as the address of the council for the service of any documents.5
1 Labour Relations Act 66 of 1995s 110(1)(a).
2 S 110(1)(b). See also s 110(2) in respect of copies and extracts from the documents.
3 S 110(3).
4 S 110(4).
5 S 110(5).

562 Designated agents of bargaining councils A bargaining council may request the minister to appoint a person
as a designated agent of the council to promote, monitor and enforce compliance with any collective agreement of
the council.1 Such an agent possesses extensive powers to execute his or her functions.2 He or she must be
provided with a certificate by the council to confirm his or her position,3 but the bargaining council is entitled to
cancel the certificate.4
1 Labour Relations Act 66 of 1995s 33(1). S e e t o o s 33(1A) which assigns certain functions to a
designated agent to secure compliance with collective agreements.
2 See s 33(3) and Sch 10. See also BC for Clothing Industry, KwaZulu­Natal v Sewtech CC 1997 ILJ 1355
(LC).
3 S 33(2).
4 S 33(4).

DISPUTES AND APPEALS

563 Disputes Any party involved in a dispute1 regarding the application or interpretation of any matter concerning
a bargaining council or statutory council may refer it in writing to the Commission for Conciliation, Mediation and
Arbitration (CCMA).2 The CCMA must attempt to resolve the dispute through conciliation but if the CCMA is not
successful, the dispute may be referred by any party to the Labour Court for adjudication.3
1 See par 565 post for a comprehensive discussion of the subject.
2 Labour Relations Act 66 of 1995s 63(1). See also s 63(2).
3 S e e s 63(3) (4). See Adonis v Western Cape Education Department 1998 I L J 806 (LC); BCFMI v
Manisanker 2001 ILJ 1431 (CCMA); Ekurhuleni Metropolitan Municipality v SAMWU 2015 ILJ 624 (LAC).
564 Appeals Any person or council that feels aggrieved about any decision of the registrar concerning any aspect
of the council's organisation and activities may demand that the registrar provide written reasons for such
decision.1 If still aggrieved about the decision, such person or body may appeal to the Labour Court.2
1 Labour Relations Act 66 of 1995s 111(1) (2).
2 S 111(3). See also s 111(4). See Ninian & Lester v Crouse 2009 ILJ 2889 (LAC).

WINDING­UP, ADMINISTRATION ORDERS AND CANCELLATION OF REGISTRATION

565 Winding­up of councils The Labour Court may wind up a bargaining or statutory council if:
(a) the council has resolved to wind up its affairs and requested the court for such an order;1 or
(b) the registrar or any party to the council has requested such an order from the court and the court is
satisfied that the council is unable to continue to function.2
If the court grants the order, it must appoint a liquidator. 3 If any assets remain that cannot be disposed of in
terms of the constitution, after all liabilities of the council have been discharged, they must be realised and the
proceeds paid over to the Commission for Conciliation, Mediation and Arbitration, for its own use.4 If a council is
wound up on the grounds of insolvency, the provisions of the Insolvency Act 5 apply, except that the application is
lodged with the Labour Court.6
A bargaining council may, upon application by an employer or trade union, also be placed under administration.7
1 Labour Relations Act 66 of 1995s 59(1)(a). See PSA v PSCBC 2001 ILJ 1878 (LC); Eastern Cape Master
Builders & AIC v BIBC 2004 ILJ 526 (LC).
2 S 59(1)(b). S 59(2) states that the court must consider the interests of any person who is not
represented before the court and see also Eastern Cape Master Builders & AIC v BIBC supra;
KwaZulu­Natal South Coast Accommodation Association v Bargaining Council LCAT 2004 ILJ 2211 (LC).
3 S 59(3). See KwaZulu­Natal South Coast Accommodation Association v Bargaining Council LCAT supra
and s 59(4).
4 S 59(5). See also CCMA v Gauteng Building Bargaining Council (in liquidation) 2006 ILJ 1117 (LC).
5 24 of 1936.
6 Labour Relations Act 66 of 1995s 60. See PSA v PSCBC supra.
7 See Solidarity v MEIBC, unreported case no J2924/2016 (LC), 13 June 2017.

566 Cancellation of registration of councils If the Registrar of Labour Relations is notified by the registrar of the
Labour Court that the court has wound up a council, he or she must cancel the registration of the council.1 If the
registrar believes that a council has ceased to perform its function for more than 90 days or has ceased to be
representative for more than 90 days,2 he or she may notify the council and the parties to the council that he or
she is considering cancelling the council's registration, giving reasons therefor, unless they can show cause within
60 days to the contrary.3 Unless reasons to the contrary are adduced or an appeal is lodged successfully with the
Labour Court, the registrar must cancel the council's registration.4 Any collective agreement of such a council lapses
60 days after cancellation.5 Any dispute regarding the application of the collective agreement must be referred to
the Commission for Conciliation, Mediation and Arbitration for conciliation6 and, if unsuccessful, arbitration.7
1 Labour Relations Act 66 of 1995s 61(1) (2).
2 S 61(3).
3 S 61(4).
4 S 61(5) (7). S 61(6) provides when the cancellation takes effect.
5 S 61(8). See also s 61(9).
6 S 61(10)­(12).
7 S 61(13).

BARGAINING COUNCILS IN PUBLIC SERVICE

567 General A bargaining council is provided for:

(a) the public service1 as a whole, to be known as the Public Service Co­ordinating Bargaining Council;2 and
(b) any sector in the public service.3
1 Labour Relations Act 66 of 1995s 213 sv "public service".
2 S 35(a).
3 S 35(b). See also s 37. For a more extensive discussion of bargaining structures in the public service,
see Vol 24(2)(3ed) pars 338­341 post; Adair and Albertyn 2000 ILJ 813.

568 Establishment of Public Service Co­ordinating Bargaining Council As soon as practicable after the
commencement of the Labour Relations Act,1 the Commission for Conciliation, Mediation and Arbitration had to
invite the representatives of the employees and of the employers in the:
(a) Education Labour Relations Council;
(b) National Negotiating Forum of the South African Police Service; and
(c) central chamber of the Public Service Bargaining Council;
to a meeting in order to reach agreement on a constitution for a new bargaining council, known as the Public
Service Co­ordinating Bargaining Council.2
If the representatives conclude an agreement on the constitution,3 the registrar must register the bargaining
council.4 If the representatives are not able to reach agreement on a constitution, the registrar must determine a
constitution for them and then register the bargaining council.5
1 66 of 1995.
2 S 36(1). See also Sch 1 item 2(1) (2) (3).
3 The constitution must comply with the requirements of s 30: Sch 1 item 2(2).
4 Sch 1 item 2(4).
5 Sch 1 item 2(5). See also item 2(6) in respect of the registration certificate and constitution of the
bargaining council. See further Sch 7 items 14 20 regarding transitional arrangements in respect of the
establishment of bargaining councils in the public service.

569 Functions of the Public Service Co­ordinating Bargaining Council The Public Service Co­ordinating
Bargaining Council is entitled to perform all the duties of a bargaining council in respect of those matters that:
(a) are regulated by rules and standards which are applicable to the public service;1
(b) are applicable to conditions of employment to two or more sectors;2 or
(c) are assigned to the state as employer of the public service and not as employer in any sector.3
1 Labour Relations Act 66 of 1995s 36(2)(a); but see Maas v CCMA 1999 5 BLLR 491 (LC) (dispute
regarding applicants for employment).
2 S 36(2)(b).
3 S 36(2)(c).

570 Bargaining councils in sectors of the public service The Public Service Co­ordinating Bargaining Council
(PSCBC) may designate a sector in the public service so that a bargaining council may be established for it.1 A
bargaining council must, however, be established in terms of the constitution of the PSCBC, by the employer and
the employees.2 A bargaining council in the civil service is, like other bargaining councils, a juristic person enjoying
an autonomous existence.3
When the PSCBC is established, the Public Service Bargaining Council will cease to exist,4 but the following
bodies will be deemed to be bargaining councils:
(a) the departmental and provincial chambers of the former council;5
(b) the Education Labour Relations Council;6 and
(c) the National Negotiating Forum.7
1 Labour Relations Act 66 of 1995s 37(1). See PSA v PSCBC 2001 ILJ 1878 (LC). In terms of s 37(1)(b)
the PSCBC may also vary the designation of, amalgamate or disestablish bargaining councils. See also
s 37(4).
2 S 37(2); PSA v PSCBC supra. Regarding non­agreement on a constitution, see s 37(3). Regarding the
jurisdiction and functions of such bargaining councils, see s 37(5). In respect of the cancellation of the
registration of a bargaining council, see s 61(14).
3 See s 50(1); PSA v Public Service Co­ordinating Bargaining Council supra.
4 Sch 7 item 20(a).
5 Sch 7 item 20(b) and see Sch 1 item 3(1).
6 Sch 7 item 20(c) and see Sch 1 item 3(2).
7 Sch 7 item 20(d) and see Sch 1 item 3(3).

571 Resolution of jurisdictional disputes Any jurisdictional dispute between the Public Sector Co­ordinating
Bargaining Council and a bargaining council or between two or more bargaining councils in the public service may be
referred in writing to the Commission for Conciliation, Mediation and Arbitration (CCMA) by any party to the
dispute.1 A copy of the referral must be served on all the other parties to the dispute.2 The CCMA must try to
resolve the dispute as soon as possible through conciliation3 but, if unsuccessful, the dispute must be resolved
through arbitration by the CCMA.4
1 Labour Relations Act 66 of 1995s 38(1).
2 S 38(2).
3 S 38(3).
4 S 38(4). See in general Public Service Bargaining Council v Maseko 2001 2 BLLR 228 (LC).

WORKPLACE FORUMS

INTRODUCTION

572 Background The establishment of the system of workplace forums is an innovating aspect of the current
labour law dispensation and a concrete manifestation of the concept of workplace democracy.1 In terms of this
system, employees obtain joint consultative powers in the management of the undertaking in regard to matters
concerning them. In South Africa the concept is relatively new,2 but the concept of works councils is well known
internationally.3
1 See Labour Relations Act 66 of 1995s 1. This system of workers' participation and co­determination is,
 however, doomed to failure. This sad state of affairs has been aptly summarised as follows by
Thompson 2001 CurLL 31: "The 1995 LRA ushered in an institution and a process to achieve the high
road: workplace forums and consensus­seeking consultation. A paltry seventeen such bodies have
been established, and the attempt of the drafters of the 2001 amendments to open up new channels to
establish workplace forums died mid­year."
2 Regarding the history of the concept, see Wiehahn Report (1979) 5.4.50; Du Plessis 'n Arbeidsregtelike
Studie met Betrekking tot die Deelname van Werknemers in die Besluitnemingsprosesse in Nywerhede
(1984) thesis; Anstey (ed) Worker Participation 3 et seq; Nupen in Worker Participation 36 et seq;
O'Regan 1990 AJ 113; Maree 1991 AJ 113; Du Toit 1993 SLR 325; Van Niekerk and Le Roux 1995 CLL
51; Du Toit 1995 ILJ 785; Van Niekerk 1995 CLL 31; Wiese Worker Participation in South African Law
(1998) thesis; Du Toit 2000 ILJ 1544; Steadman 2004 ILJ 1170; Botha Employee Participation and
Voice in Companies: A Legal Perspective (2015) LLD thesis 139.
3 See Daubler 1975 I L J (UK) 218; Bullock Committee of Inquiry on Industrial Democracy Report
Command Paper 6706 (Jan 1977); Prentice 1978 Canadian BR 277; Birk 1980 Comparative Law Year
Book 69; Wiedemann 1980 American Jour Comp L 79; Cordova 1986 International Labour Review 641;
Hepple and Fredman Labour Law and Industrial Relations in Great Britain 219; Schregle 1987 ILR 317;
Holle 1992 Bulletin Comparative Labour Relations 19; Wedderburn 1993 ILJ 517; Summers 1995 ILJ
806; Carby­Hall 1995 Comparative Law Review 7 5 ; R o o d 1 9 9 5 T S A R 55. See also European
Community Council Directive 94/45/EC of 1994­09­22 (institution of a European Workers Council); Hall
1996 ILJ (UK) 56; Kolvenbach and Hanau Handbook on European Employee Co­Management (5ed) 1;
Weiss 2000 ILJ 737.

573 Wiehahn Commission The Wiehahn Commission first expressed the need for a consultation mechanism at
the level of the workplace, stating: "[T]he existence of efficient organisations to accommodate the interaction
between the employer and his employees as a collective entity, is factually the most important factor for the
maintenance of sound industrial relations".1 The commission pointed out that on the international labour front there
is a discernible tendency to decentralise collective bargaining to the level of the undertaking.2 The legislation that
provided for the institution of works councils and works committees in the early 1980s was not well supported
because of the resistance of organised labour. The reason for the resistance was the manner in which statutory
structures of works councils and works committees were drafted. This resulted in the system functioning in
competition with trade unions in determining employment conditions and the general management of the workplace
in so far as it impacted on the position of employees.3
1 Wiehahn Report 1.3.111.
2 Wiehahn Report 5.4.81.1. Although the commission identified this tendency by many countries in the
interim which led to increased unemployment and reductions in union membership: Brown 1995 ILJ
979.
3 See O'Regan 1990 AJ 113; Mohamed 1989 SALB 93; Van Niekerk 1995 Contemp LL 32; Brown 1995
ILJ 980 et seq; Du Toit 1995 ILJ 798; Kirsten and Nel (2000) 24(1) SAJLR 28; Steadman 2004 ILJ 1170.

574 Ministerial task team The ministerial task team1 expressed the view that, in order for South Africa to
compete successfully in international markets, it was necessary to produce products of high quality and to improve
productivity levels. This would only be possible with substantial restructuring. The team was of the opinion that the
system of adversarial labour relations then in force was unsuitable for such restructuring, and that other countries
with similar systems not supplemented by employees' representation in the workplace, such as the United Kingdom,
experienced labour unrest. Workplace restructuring, which provides for participating structures, was successful in
countries such as Japan and Germany.2
The task team suggested that the abovementioned problems could be resolved by workplace forums:
"Workplace forums are designed to facilitate a shift at the workplace, from adversarial collective bargaining on all
matters to joint problem­solving and participation on certain subjects. In creating a structure for ongoing dialogue
between management and workers, statutory recognition is given to the realisation that unless workers and
managers work together more effectively they will fail to adequately improve productivity and living standards.
Workplace forums are designed to perform functions that collective bargaining cannot easily achieve: the joint
solution of problems and the resolution of conflicts over production. Their purpose is not to undermine collective
bargaining but to supplement it. They achieve this purpose by relieving collective bargaining of functions to which it
is not well suited. Workplace forums expand worker representation beyond the limits of collective bargaining by
providing workers with an institutionalised voice in managerial decisions. Employers receive different benefits from
the workplace forum: increased efficiency and performance."3
1 See "Explanatory Memorandum" 1995 ILJ 310.
2 See Zöllner and Loritz Arbeidsrecht (4ed) 437 et seq; Hanau and Adomeit Arbeidsrecht (10ed) 113.
See also Robinson in Anstey (ed) Worker Participation 49 et seq.
3 Explanatory Memorandum ch v Government Gazette 16259, 10 February 1995 135. See also 1995 ILJ
310. Regarding the different ways in which the workers' participation or co­determination can be
exercised in practice, see O'Regan 1990 A J 122­132. See further Le Roux 1995 Contemp LL 70;
Brassey and Brand 1995 EL 78; Benjamin and Cooper 1995 ILJ 265; Basson and Strydom 1995 THRHR
265; Van Jaarsveld 1995 SATEB 144; Van Eck 1995 De Jure 183; Delport 1995 De Jure 409; Myburgh
et al (1995) 1 EL 13; Cheadle 1995 Cur LL 64; Olivier 1995 DR 357; Lacob 1995 DR 368; Steadman
1995 IMSSA 6,2004 ILJ 1170; Olivier 1996 ILJ 803; Weiss 2005 LLD 157.

575 International position The system of co­determination involving employees has operated for some time in
large industrial countries such as Germany, Japan, Belgium and France1 but not in the United Kingdom and the
United States, despite the fact that the subject has been debated widely in these countries for many years.2
1 See par 572 ante; Du Toit 2000 ILJ 1544.
 2 See Kahn­Freund 1977 ILJ (UK) 76; Davies and Wedderburn 1977 ILJ 201; Prentice 1978 Canadian BR
277; Summers 1980 AM Jour Comp L 367; Klare 1988 Harv Civil Liberties LR 39; Kochan 1994 ILJ 489;
Summers 1995 ILJ 806.

DEFINITION OF CONCEPTS

576 Employee In the context of workplace forums "employee" means1 any person who is employed in a
workplace,2 except a senior managerial employee whose contract of employment or status confers the authority to
do any of the following in the workplace:
(a) represent the employer in dealings with the workplace forum;3 or
(b) determine policy and make decisions on behalf of the employer that may be in conflict with the
representation of employees in the workplace.4
1 See Labour Relations Act 66 of 1995s 78(a). See also the general definition in s 213.
2 See par 577 post.
3 S 78(a)(ii). The concept "workplace forum" is not defined; but see s 213.
4 S 78(a)(iii).

577 Workplace "Workplace" means1 the place or places where the employees of an employer work. If an
employer carries on or conducts two or more operations that are independent of one another by reason of their
size, function or organisation, the place or places where employees work in connection with each independent
operation constitutes the workplace for that operation. From this definition the following may be deduced:
(a) A workplace may be any place where services are rendered in terms of a contract of employment.2
(b) If an employer carries on two or more business operations, each place where the operations are
conducted independently of the other by reason of its size, function or organisation will be regarded as a
independent workplace.3
(c) The definition is not applicable to the public service where two different situations must be distinguished.4
1 See Labour Relations Act 66 of 1995s 213; Speciality Stores v CCAWU 1997 ILJ 992 (LC).
2 This implies the existence of an employment relationship between the parties. See pars 106­110 ante.
3 The Act does not specify the size, operation or function that is required for a place to qualify as an
independent workplace. See Speciality Stores v CCAWU supra.
4 S e e s 213 sv "workplace" par (a) (b) according to which the meaning of "workplace" depends on
whether a bargaining council has been established for a sector in the public service or not.

578 Representative trade union "Representative trade union" is defined1 as one or more registered trade
unions, acting jointly, whose members are the majority of the employees employed by an employer in a workplace.
1 Labour Relations Act 66 of 1995s 78(b).

ESTABLISHMENT

579 Basic requirements and procedures Any representative trade union may apply for the establishment of a
workplace forum.1 However, at least 100 employees must be employed by the employer in the workplace where
the workplace forum is to be established.2 Application must be made to the Commission for Conciliation, Mediation
and Arbitration (CCMA) which may also require additional information to support the application.3 The CCMA must
consider:4
(a) the information supplied by the applicant; and
(b) whether, in the workplace:
(i) the employer employs 100 or more employees;
(ii) the applicant is a representative trade union; and
(iii) whether a functioning workplace forum has not already been established.
1 Labour Relations Act 66 of 1995s 80(2). See also Olivier 1996 ILJ 810; Kruger and Van Eck 1997 De
Jure 158.
2 S 80(1). See Van Holdt 1995 SALB 33; Benjamin and Cooper 1995 ILJ 265; Olivier 1996 ILJ 808.
3 S 80(2) (4). See also s 80(3).
4 S 80(5).

580 Agreement based workplace forum If the Commission for Conciliation, Mediation and Arbitration is satisfied
that the necessary requirements have been met,1 it must appoint a commissioner to assist the parties to establish
a workplace forum by means of a collective agreement.2 To this end the commissioner must arrange a meeting
between the employer and the applicant or any other trade union whose members are employed by the employer.3
1 See par 579 ante.
2 Labour Relations Act 66 of 1995s 80(6).
3 S 80(7).
581 Commissioner based workplace forum If an agreement is not concluded, the commissioner must arrange for
another meeting to facilitate an agreement between the parties regarding the provisions of a constitution for the
workplace forum.1 If he or she is again unsuccessful, the commissioner must establish a workplace forum and draw
up the constitution, taking into consideration the guidelines prescribed by the Act.2 After the establishment of the
workplace forum, the commissioner must fix a date for the election of members and appoint an election officer.3
1 Labour Relations Act 66 of 1995s 80(9). The guidelines of Sch 2 should be kept in mind: see item 1(2).
2 S 80(10).
3 S 80(11).

582 Trade union based workplace forum If a representative trade union is recognised by an employer for the
purpose of collective bargaining in respect of all workers in a workplace, the trade union may apply to the
Commission for Conciliation, Mediation and Arbitration for the establishment of a workplace forum.1 However, it is
not possible to establish a trade union based workplace forum in the public service.2 The applicant trade union may
elect the members of the forum from its representatives in the workplace.3 The constitution of the applicant
regulates the election and termination of the committee in the workplace.4 A workplace forum dissolves if the
collective agreement in terms of which the union was recognised is cancelled or the applicant is no longer a
representative union.5
1 Labour Relations Act 66 of 1995s 81(1).
2 S 81(6).
3 S 81(2). See also s 81(3).
4 S 81(4).
5 S 81(5).

583 Full­time members If a workplace has more than 1 000 employees, members of a workplace forum may
appoint from their ranks a full­time member. 1 The employer must pay such full­time member the same remuneration
as he or she earned before his or her appointment as full­time member. 2 If that person ceases to be a full­time
member of the workplace forum, he or she must be reinstated to his or her former position or to a more senior
position to which he or she might have advanced, had he or she not been appointed as a full­time member.3
1 Labour Relations Act 66 of 1995s 92(1).
2 S 92(2)(a).
3 S 92(2)(b).

584 Legal personality The Labour Relations Act 1 does not state, as is the case with trade unions2 a n d
bargaining councils,3 that workplace forums acquire legal personality after establishment. As a result, workplace
forums are not entitled to any contractual rights and may not acquire any assets, debts, rights and obligations,4
unless legal personality is acquired as a voluntary society through the common law.5
1 66 of 1995.
2 See s 97(1).
3 See s 50(1).
4 See NUFAWSA v PWAWU 1984 ILJ 161 (W); Mbobo v Randfontein Estate Gold Mining Co 1992 ILJ 1485
(IC).
5 Morrison v Standard Building Society 1 9 3 2 A D 2 2 9 ; Moloi v St John Apostolic Faith Mission
1954 3 SA 940 (T); Ex parte Johannesburg Congregation of the Apostolic Church of SA 1968 3 SA 377
(W).

FUNCTIONS

585 General A workplace forum should endeavour to promote the interests of all the employees in the workplace
irrespective of whether or not they are members of the trade union1 and to increase efficiency in the workplace.2
1 Labour Relations Act 66 of 1995s 79(a).
2 S 79(b).

586 Consultation by employer A workplace forum is entitled to be consulted by the employer with a view to
reaching consensus1 on the following matters:2
(a) restructuring of the workplace, which includes the introduction of new technology and new operational
methods;
(b) changes in the organisation of work;
(c) partial or complete plant closures;
(d) mergers and transfers of property which could affect workers;
(e) the termination of employers' services based on operational requirements (retrenchment);3
(f ) exemptions from any collective agreements or any law;
(g) grading of jobs;
(h) criteria for merit increases or the payment of bonuses;
 (i) education and training;
( j) product development plans; and
(k) the promotion of exports.
1 Labour Relations Act 66 of 1995s 79(c).
2 See ss 84(1)(a)­(k).
3 See Vol 24(2)(3ed) par 99 et seq post.

587 Health and safety matters Both a bargaining council1 and a collective agreement between the employer and
the representative trade union2 may confer on a workplace forum the right to be consulted in respect of additional
matters. Other legislation may grant a similar right to a workplace forum.3 Similarly, the trade union and the
employer may agree that the employer will consult the workplace forum about the application, monitoring and
promotion of health and safety measures at work and the appointment of committees and representatives in terms
of occupational health and safety legislation.4
1 Labour Relations Act 66 of 1995s 84(2).
2 S 84(3).
3 S 84(4).
4 Ss 84(5)(a)­(c). With regard to the position in the public service, see s 84(6).

588 Procedure for proposals requiring consensus Before an employer may implement a proposal, he or she must
consult with the workplace forum and attempt to reach consensus.1 During consultations the workplace forum must
be afforded the opportunity to make representations and to suggest alternative proposals to the employer. 2 The
employer must consider the representations and proposals and, if not acceptable to him or her, he or she must
furnish the reasons for not agreeing with them.3 If consensus is not reached the employer must invoke the agreed
procedures to resolve any differences before implementing his or her proposal.4
1 Labour Relations Act 66 of 1995s 85(1).
2 S 85(2).
3 S 85(3).
4 S 85(4).

589 Proposals requiring joint decision­making The employer must consult and reach consensus with a
workplace forum before implementing any proposal1 regarding:
(a) disciplinary codes and procedures;
(b) rules relating to the proper regulation of the workplace, in so far as they concern conduct not related to
the work performance of the employees;
(c) measures designed to protect and promote persons disadvantaged by unfair discrimination; and
(d) amendments to the rules which govern social benefit schemes by the employer or employer­appointed
representatives on trusts or boards of schemes controlled by the employer.2
A representative trade union and an employer may conclude a collective agreement that a workplace forum be
granted the right to joint decision­making regarding additional matters in the workplace or removing any matter
from the above list.3 Other legislation may confer a similar right to a workplace forum.4
1 See the broad authorisation granted in terms of the Labour Relations Act 66 of 1995s 79(d). See also
Botha Employee Participation and Voice in Companies: A Legal Perspective (2015) LLD thesis 170 et
seq.
2 S 86(1)(a)­(d).
3 S 86(2)(a) (b). See also the introductory part of s 86(1), and s 86(9), which provides that for the
purpose of workplace forums in the public service collective agreements in the civil service are
agreements concluded in a bargaining council.
4 S 86(3).

590 Procedure in case of disputes When an employer fails to reach consensus with a workplace forum, the
employer may refer the dispute to arbitration in terms of an agreed procedure or, if no such procedure exists, refer
it to the Commission for Conciliation, Mediation and Arbitration (the CCMA).1 The CCMA must attempt to resolve the
dispute through conciliation and, if unsuccessful, resolve it through arbitration.2 An arbitration award in respect of a
dispute concerning the changes of rules regulating social benefit schemes is effective within 30 days after it was
made.3 A representative on a trust or board may apply to the Labour Court for an order declaring that the
implementation of such an award constitutes a breach of a fiduciary duty on his or her part.4 Pending the decision
of the court, the award will not take effect.5
1 Labour Relations Act 66 of 1995s 86(4). See also s 86(5). See further s 88 regarding the situation if
more than one workplace forum is established in 2 or more workplaces of an employer.
2 S 86(6) (7).
3 S 86(8)(a).
4 S 86(8)(b).
5 S 86(8)(c).

591 Review of existing conditions of employment A workplace forum may request a meeting with the employer
to review the following:
(a) the criteria for merit increases and payment of bonuses;1
(b) disciplinary codes and procedures;2 and
(c) workplace rules with regard to conduct not relating to work performance of employees in the workplace.3
The abovementioned matters must be submitted to the workplace forum by the employer in writing for its
consideration.4
1 Labour Relations Act 66 of 1995s 87(1)(a). See also s 87(3).
2 S 87(1)(b). See also s 87(4).
3 S 87(1)(c).
4 S 87(2).

CONSTITUTION

592 Compulsory provisions The constitution of every workplace forum must contain the compulsory provisions1
as prescribed by the Labour Relations Act.2
1 See Van Jaarsveld et al Principles and Practice of Labour Law service issue 33 par 509 for a full
exposition of all the compulsory provisions.
2 66 of 1995: s 82(1). See also s 82(3) which provides that the constitution of the workplace forum binds
the employer.

593 Non­compulsory provisions The following optional provisions may be incorporated into the constitution of a
workplace forum:
(a) a conciliation and arbitration procedure in respect of proposals on which the workplace forum cannot reach
consensus;1
(b) the establishment of a co­ordinating workplace forum to perform any of the general functions of a
workplace forum, and one or more subsidiary workplace forums to perform any of the specific functions of a
workplace forum;2 and
(c) provisions that depart from the Labour Relations Act.3
1 Labour Relations Act 66 of 1995s 82(2)(a).
2 S 82(2)(b). See also Sch 2 item 10.
3 Ie ss 83­92: s 82(2)(c).

594 Public service The minister responsible for the public service may amend the requirements in respect of the
constitution of workplace forums in the public service by means of a schedule.1
1 Promulgated in terms of Labour Relations Act 66 of 1995s 207(4): s 82(4).

MEETINGS

595 Meetings between employer and workplace forums Meetings of the workplace forum must be held
regularly,1 as must meetings between the employer and the workplace forum2 at which the employer must:
(a) present a report on:
(i) its financial and labour position;
(ii) its performance since the last report; and
(iii) the expected performance in the short and long term; and
(b) consult with the workplace forum on any matter arising from the report that may affect the employees.3
In addition, all matters contained in such report must be presented annually to the employees at one of the
meetings.4
1 Labour Relations Act 66 of 1995s 83(1).
2 S 83(2).
3 S 83(2)(a) (b).
4 S 83(3)(a) (b).

596 Meetings between workplace forum and its members Regular meetings must take place between the
members of the workplace forum and the employees at the workplace, at which the workplace forum must report
on:
(a) its activities generally;
(b) matters in respect of which it has been consulted by the employer; and
(c) matters in respect of which joint decision­making took place.1
Such meetings must be held during working hours without loss of pay at a place and time agreed upon by the
employer and the workplace forum.2
1 Labour Relations Act 66 of 1995s 83(3)(a). See also s 83(1).
2 S 83(3)(c).

DISCLOSURE OF INFORMATION

597 Nature of obligation The employer must disclose all relevant information to the workplace forum to allow it to
participate effectively in consultation and joint decision­making.1 The employer must inform the workplace forum if
any of the information disclosed to the forum is in its view of a confidential nature.2
The following need not be disclosed:
(a) information that is legally privileged;3
(b) that if disclosed might contravene a prohibition imposed on the employer by law or by order of court;4
(c) that is confidential and, if disclosed, may cause substantial harm to the employer or employee;5 or
(d) that is private personal information about an employee, unless the employee consents to the disclosure.6
1 Labour Relations Act 66 of 1995s 89(1). See also s 16; par 471 ante; Atlantis Diesel Engines v NUMSA
1994 ILJ 1247 (A); NEHAWU v Department of Health: EC 2010 ILJ 480 (CCMA).
2 S 89(2A).
3 S 89(2)(a).
4 S 89(2)(b).
5 S 89(2)(c).
6 S 89(2)(d).

598 Disputes regarding disclosure of information A dispute regarding the disclosure of information may be
referred by any party in writing to the Commission for Conciliation, Mediation and Arbitration,1 which must attempt
to resolve the dispute through conciliation.2 If the dispute remains unresolved, it may be referred to arbitration for
resolution.3 In settling the dispute, the commissioner must first determine whether or not the disputed information
is relevant.4 If the commissioner decides that it is relevant but that the information is confidential and personal, the
commissioner must balance the harm which could arise as a result of disclosure against the possible harm of non­
disclosure to the ability of the workplace forum to engage effectively in consultation and joint decision­making.5 If it
is decided that the balance of harm favours disclosure, the commissioner may order disclosure in such a manner
that harm to the employee or employer is minimised.6 If it is found that a breach of confidential information occurred
at the particular workplace, this may be taken into account by the commissioner and he or she may order that
information or confidential information need not be disclosed for a specified period.7
1 Labour Relations Act 66 of 1995s 89(3). See also s 89(4).
2 S 89(5).
3 S 89(6).
4 S 89(7).
5 S 89(8).
6 S 89(9).
7 S 89(10). See par 600 post.

599 Inspection of documents and copies Any documentary information which an employer must make available to
a workplace forum must on request also be made available to members of the workplace forum for inspection.1 If
requested, the employer must supply the members of the workplace forum with copies of these documents.2
1 Labour Relations Act 66 of 1995s 90(1).
2 S 90(2).

600 Breach of confidentiality In any dispute regarding the alleged breach of confidentiality, a commissioner may
order that the right to disclosure of information in the workplace forum be withdrawn for a period stated in the
arbitration award.1
1 Labour Relations Act 66 of 1995s 91.

MISCELLANEOUS PROVISIONS

601 Disputes about workplace forums Any employee in a workplace, a workplace forum, a registered trade union
with members in the workplace, a representative trade union or an employer may in writing refer a dispute about
the interpretation and application of any matter regarding workplace forums to the Commission for Conciliation,
Mediation and Arbitration,1 which must attempt to settle the dispute through conciliation.2 If unresolved the
dispute may be referred to arbitration for resolution.3
1 Labour Relations Act 66 of 1995s 94(1). See also s 94(2).
2 S 94(3).
3 S 94(4).

602 Dissolution of workplace forum A representative trade union in a workplace may at any time request a
ballot to dissolve a workplace forum.1 Upon such a request, an election officer must be appointed in terms of the
constitution of the workplace forum,2 who must then within 30 days of the request prepare and conduct a ballot.3
If more than 50 per cent of the employees who have voted in the ballot support the dissolution of the workplace
forum, the workplace forum must be dissolved.4
1 Labour Relations Act 66 of 1995s 93(1).
2 S 93(2).
3 S 93(3)
4 S 93(4).

COLLECTIVE BARGAINING

INTRODUCTION

603 General The determination of conditions of employment through collective bargaining is fundamental to local
and international labour relations.1 In South Africa collective bargaining has experienced the same development
and refinement as other labour mechanisms provided for by the different Labour Relations Acts since 1924.2 During
the past two decades several principles and procedures have been identified and implemented, both by the courts
and by statute, to establish fair negotiating mechanisms in order to achieve effective and equitable collective
bargaining.3
1 Albeda 1990 Labour Law Conference 68; Potgieter 1994 TSAR 175; Kochan 1994 ILJ 692 et seq.
2 See pars 13­14 ante. See also Woudstra Die Kollektiewe Arbeidsooreenkoms (1976) thesis 146; Piron
Collective Bargaining in South African Law (1976) thesis 322; Brassey et al The New Labour Law 149;
Kelling Aspekte van die Aard en Uitwerking van Arbeidsooreenkomste in die Suid­Afrikaanse
Arbeidsreg (1988) thesis 250; Cameron et al The New Labour Relations Act 7 96; Brassey Employment
and Labour Law vol 1 A1:27.
3 See Le Roux et al 1987 ILJ 197; Cameron and Bulbulia in Strikes Lockouts & Arbitration in SA Labour
Law 11­21 22­24, respectively; Du Toit 1993 ILJ 570, 1995 ILJ 798; Brown 1995 ILJ 979; O'Regan
1997 ILJ 889; Cheadle 2005 LLD 147, 2006 ILJ 690; Thompson 2006 ILJ 704; Godfrey, Maree and
Theron 2006 ILJ 731; Du Toit 2007 ILJ 1405.

604 Historical development The issue of collective bargaining gained public interest in 1977 with the appointment
of the Wiehahn Commission.1 Far­reaching recommendations were made by the commission. Most were accepted
and encapsulated in legislation.2 Many international collective labour rights were recognised directly and indirectly
by the courts in the 1980s but not formally recognised by statutory provisions.3
In 1992 the Fact­Finding and Conciliation Commission of the International Labour Organisation investigated the
application and functioning of the collective bargaining system in South Africa. The commission made several
recommendations to improve the system.4 Many were later contained in the Labour Relations Act.5 W i t h t h e
acceptance and implementation of the interim Constitution6 in 1994, recognition was simultaneously given to a new
system of collective labour law and consequently also collective bargaining rights,7 which were reconfirmed in the
final Constitution.8
1 See par 4 ante.
2 See pars 15­17 ante.
3 See par 532 ante.
4 See 1992 ILJ 739; Saley and Benjamin 1992 ILJ 731; par 18 ante.
5 66 of 1995. See par 21 ante.
6 Constitution of the Republic of SA 200 of 1993.
7 S 27(2) (3) (4).
8 See Constitution of the Republic of SA 108 of 1996s 23(2) (3) (5); par 21 ante.

605 Labour Relations Act The Labour Relations Act 1 provides for mechanisms, structures and procedures to give
effect to collective bargaining, including:2
(a) the right to organise trade unions and to associate with them;3
(b) the right to organise employers' bodies and to associate with them;4
(c) the establishment of bargaining and statutory councils;5
(d) the establishment of workplace forums at enterprise level;6
(e) the determination of conditions of employment through collective bargaining;7 and
(f ) the prevention and settlement of labour disputes through collective bargaining.8
1 66 of 1995.
2 See long title of Act. Regarding the Labour Relations Act 28 of 1956 s e e NUM v East Rand Gold &
Uranium Co 1991 I L J 1221 (A) 1236J­1237A where the following was stated: "The fundamental
philosophy of the Act is that collective bargaining is the means preferred by the legislature for the
maintenance of good labour relations and for the resolution of labour disputes." See also MacSteel v
NUMSA 1990 ILJ 995 (LAC) 1005; Cobra Watertech v NUMSA 1995 ILJ 607 (LAC); NUMSA v Bader Bop
2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305 (CC); SANDFU v Minister of Defence
2003 ILJ 2101 (T); Cameron et al The New Labour Relations Act 1; Van Jaarsveld 2004 De Jure 349,
2006 De Jure 655, 2007 THRHR 299; contra SANDU v Minister of Defence 2003 ILJ 1495 (T); SANDU v
Minister of Defence; Minister of Defence v SANDU 2006 11 BLLR 1043 (SCA); Vettori 2005 De Jure 382;
Fergus 2008 ILJ 2386.
 3 See pars 440­473 ante.
4 See pars 510­511 ante.
5 S e e p a r s 518543 a n t e ; MacSteel v NUMSA supra; NUM v East Rand Gold & Uranium Co supra;
Perskorporasie van SA Bpk v MWASA 1993 ILJ 938 (LAC); NIC Leather Industry of SA v Naidoo 1996
ILJ 856 (N).
6 See pars 579­584 et seq ante.
7 S e e p a r s 532 e t s e q p o s t . I n N U M v E a s t R a n d G o l d & U r a n i u m C o supra 1236J­1237A and
Perskorporasie van SA Bpk v MWASA supra it was also stated that the basic philosophy of the Act is
that collective bargaining is the prescribed and acceptable procedure to promote peaceful labour
relations. See also NIC Leather Industry of SA v Naidoo supra.
8 See pars 515 ante 606 et seq post. See also Mzeku v Volkswagen SA 2001 8 BLLR 857 (LAC); Le Roux
1995 CLL 62; Grogan 1995 E L 84; Van Jaarsveld 1995 SATEB 143; Van Eck 1995 D e J u r e 181;
Myburgh et al 1995 EL 2; Olivier 1995 DR 358; Thompson 1995 Current Labour Law 30, 1997 CCL 1,
1998 CLL 1.

CONCEPT OF COLLECTIVE BARGAINING

606 Definitions "Collective bargaining" has been defined variously as follows:

(a) Collective bargaining is "a process of decision­making between employers and trade unions with the
purpose of arriving at an agreed set of rules governing the substantive and procedural terms of the relationship
between them and all aspects of and issues arising out of the employment situation".1
(b) "By collective bargaining is meant the regulation of conditions of employment by negotiation between two
power groups, that is organised labour and organised (or unorganised in the case of single employers) capital."2
(c) "Collective bargaining may be defined as a voluntary process for reconciling the conflicting interests and
aspirations of management and labour through the joint regulation of terms and conditions of employment."3
(d) "Collective bargaining can be described as the process according to which conditions of work are
determined by an agreement between the representatives of one or more organised groups of workers on the one
hand and representatives of one or more employers, on the other."4
(e) "The collective bargaining process can be broadly defined as a process whereby employers (or employers'
organisations) bargain with employee representatives (trade unions) about terms and conditions of employment
and other matters of mutual interest."5
From these definitions the following definition may be extrapolated: Collective bargaining is a process by means
of which employees in an organised relationship negotiate with their employers or employers in an organised
relationship, on a voluntary6 basis with regard to employment conditions or disputes arising therefrom with the
object of reaching an agreement on these matters.7
1 Wiehahn Report 5.2.6.2.
2 Piron Collective Bargaining in South African Labour Law 7 fn 2.
3 Rycroft and Jordaan A Guide to South African Labour Law (2ed) 116 who subscribe to the quoted
definition of Lewis (ed) Labour Law in Britain 110.
4 Du Toit South African Trade Unions 97.
5 Basson et al Essential Labour Law (3ed) vol 2 56.
6 Some writers and decisions regard it as a totally voluntary process. However, the concept "voluntary"
only relates to the different parties, the terms and conditions of the agreement (outcomes of collective
bargaining). See pars 614­619 post. See also FAWU v Spekenham Supreme (1) 1988 ILJ 628 (IC) 636­
637; Ntsangani v Golden Lay Farms 1992 ILJ 1199 (IC); SAUJ v Times Media 1993 ILJ 387 (IC); Davis
1990 AJ 45; Van Jaarsveld 2004 De Jure 349, 2007 THRHR 299.
7 See also NUM v East Rand Gold & Uranium Co 1991 ILJ 1221 (A). The term "employment conditions" in
the definition must be accorded a wide meaning to include all subjects provided for in the definition of
"collective agreement" in Labour Relations Act 66 of 1995s 213. See par 624 post. In Ntsangani v
Golden Lay Farms supra it was held that the court should not lightly interfere with an agreement.

607 Purpose of collective bargaining The purpose of collective bargaining has been described as follows:
(a) "[B]y bargaining collectively with organised labour management seeks to give effect to its legitimate
expectations that the planning of production, distribution, etc, should not be frustrated through interruptions of
work. By bargaining collectively with management, organised labour seeks to give effect to its legitimate
expectations that wages and other conditions of work should be such as to guarantee a stable and adequate form
of existence and has to be compatible with the physical integrity and moral dignity of the individual and also that
jobs should be reasonably secure."1
(b) "Collective bargaining functions as a device for the regulation of individual or collective workplace relations,
and the institutionalisation of industrial conflict. It is aimed at achieving a temporary reconciliation of management
and labour's conflicting economic interests."2
(c) "The primary purpose of collective bargaining is the regulation of terms and conditions of employment."3
1 Kahn­Freund Labour and the Law (3ed) 66.
2 Rycroft and Jordaan A Guide to South African Labour Law (2ed) 116.
3 Basson et al Essential Labour Law (5ed) 273. See also Davis 1990 AJ 45; Van Niekerk et al Law@Work
339; East Rand Gold & Uranium Co v NUM 1989 ILJ 683 (LAC); SANDFU v Minister of Defence 2003 ILJ
2101 (T); SANDU v Minister of Defence 2007 ILJ 1909 (CC); PPCRU v Ledwaba 2014 ILJ 1037 (LC);
Steenkamp et al 2004 ILJ 944; Du Toit 2007 ILJ 1405; Van Jaarsveld 2008 THRHR 124.
608 Theories regarding collective bargaining The most important theories regarding the concept of collective
bargaining are the following:1

(a) Marketing theory

According to the marketing theory an agreement determines the conditions in terms of which labour is made
available through employers to an undertaking, and collective bargaining could therefore be regarded as the
purchase and sale of labour. The collective bargaining process is thus a purchase and sale of merchandise:
employees sell their labour through their representative, the trade union, and the conditions of employment are
determined collectively.2

(b) Theory of Leiserson

According to the Leiserson theory a collective agreement should be regarded as the constitution of the industrial
government of the region which it covers. Collective bargaining therefore consists of the process whereby the
constitution is drawn up.3

(c) Joint management theory

The joint management theory is based on the view that trade unions are participants in the management policy
of an undertaking with regard to those aspects of decision­making which concern collective bargaining. Although
management issues the instructions, the trade union must be consulted and consent thereto.4
1 For a fuller discussion and analysis of the theories see Piron Collective Bargaining in South African
Labour Law 134, 1978 THRHR 183; Rycroft and Jordaan A Guide to South African Labour Law (2ed)
117.
2 See Flanders 1968 British Journal of Industrial Relations 18.
3 See 1970 Institute for Labour Studies Bulletin no 6 IAO 161.
4 1970 Institute for Labour Studies Bulletin no 6 IAO 165. For the theories of Flanders and Piron, see
Piron Collective Bargaining in SA Labour Law 148. See also Jordaan 1989 ILJ 791 regarding the nature
of the philosophy of "industrial pluralism".

609 Mechanisms for and levels of collective bargaining Collective bargaining is applied in practice in two
manners. First, a group of organised employees in a specific sector could be conjoined by means of trade unions
with employers' organisations in a bargaining council. Within the framework of the bargaining council, concrete
meaning is given to the concept of collective bargaining because it is here that employees and employers may
negotiate with each other about conditions of employment on a collective and an equal basis. If they reach
consensus, the conditions of employment are contained in a collective agreement.1 Complementary to the
bargaining councils is the system of statutory councils.2 Second, at the decentralised enterprise level an employer
and his or her employees may establish a workplace forum of which the members must be elected by the
employees. Workplace forums may consult and negotiate certain prescribed conditions of employment and conclude
collective agreements.3 In addition to these collective bargaining mechanisms, employers and trade unions are
entitled to negotiate and bargain directly with each other in respect of conditions of employment, especially in
disputes regarding the application of conditions of employment.
The above mechanisms for collective bargaining between employers and employees are contained in the Labour
Relations Act.4 Apart from collective bargaining the Act also regulates the manner in which disputes between
employers and employees may be settled.5 The overarching role played by the National Economic Development and
Labour Council in the various bargaining processes must also be kept in mind.6
1 See pars 532­540 ante 629 et seq post.
2 See pars 541­549 ante.
3 See pars 572­602 ante.
4 66 of 1995.
5 See Vol 24(2)(3ed) par 1 et seq post.
6 See pars 39­45 ante and National Economic Development and Labour Council Act 35 of 1994s 5(1).

RIGHT TO COLLECTIVE BARGAINING

610 General The right of employees to bargain collectively means in practice that employees are entitled through
trade unions to negotiate with their employers with regard to conditions of employment and that such negotiations
may result in agreement between the parties.1 The right concerns a ius negotiandi and not a ius contrahendi.2
1 See par 606 ante; Mutual & Federal Insurance Co v BIFAWU 1996 ILJ 241 (A); SANDFU v Minister of
Defence 2003 ILJ 2101 (T). See also Strydom 1999 SAMLJ 40; Steenkamp et al 2004 ILJ 943; Van
Jaarsveld 2004 De Jure 349, 2006 De Jure 655, 2007 THRHR 299; contra: SANDU v Minister of Defence
2003 ILJ 1495 (T); SANDU v Minister of Defence; Minister of Defence v SANDU 2006 11 BLLR 1043
(SCA); Vettori 2005 De Jure 382. The denial of collective bargaining rights to managerial employees in
general seems to be unjustified and unfair; but see SASBO v Standard Bank of SA Ltd 1995 5 BLLR 12
(LAC); IMATU v Rustenburg Transitional Council 1999 12 BLLR 1299 (LC); par 616 post.
2 This follows from the fact that consensus does not always result from negotiations between parties.
See MAWU v Hart 1985 ILJ 478 (IC); BAWU v Umgeni Iron Works 1990 ILJ 589 (IC).

611 International position The right of employees to collective bargaining is recognised internationally. The
International Labour Organisation itself recognised the right in a convention,1 in which it stated that measures
should be adopted, taking into consideration local circumstances, to encourage and promote the full development
and utilisation of voluntary bargaining machinery between trade unions and employers, so that employment
conditions could be determined by means of collective agreements.2 In Europe, the right to collective bargaining
was recently unqualifiedly confirmed by the European Court for Human Rights in the case of Demir and Baykara.3
1 ILO Convention 98 of 1949. See Mbobo v Randfontein Estate Gold Mining Co 1992 ILJ 1485 (IC).
2 See ILO Convention 91 of 1951 art 4; ILO Convention 163 of 1981; Mineworkers Union v East Rand
Gold & Uranium Co1990 ILJ 1070 (IC); Mbobo v Randfontein Estate Gold Mining Co supra; Potgieter
1994 TSAR 175; Wedderburn Labour Law and Freedom 212; Van Jaarsveld 2007 THRHR 299.
3 See Ewing and Hendry 2010 ILJ (UK) 6 and also Seifert in Malherbe and Sloth­Nielsen (eds) Labour
Law into the Future 76.

612 Position in South Africa The right to bargain collectively has been recognised in South Africa for many years.1
The right has been recognised in both the interim Constitution2 and the final Constitution,3 the latter stipulating
that every trade union, employers' organisation and employer have the right to engage in collective bargaining.4
However, the contents of this right is controversial and uncertain, especially if this right also imposes a duty on the
other party (usually the employer) to bargain collectively.5 During May 2007 the Constitutional Court acknowledged
the right to collective bargaining, however, without clarifying the contents of this right when, in SANDU v Minister of
Defence,6 O'Regan J stated the following: "It is clear that at the minimum s 23(5) confers a right on trade unions,
employers' organisations and employers to engage in collective bargaining that may not be abolished by the
legislature, unless it can be shown that such abolition passes the test for justification established in s 36 of the
Constitution."
The national legislation referred to in the Constitution has been passed in the form of the Labour Relations Act 7
which does not, strangely enough, provide for collective bargaining on a compulsory basis in accordance with the
prescriptive constitutional provision.8 Two important components of collective bargaining must be distinguished and
kept in mind, namely, a compulsory substantive component entailing the right to bargain (and the duty to bargain)
and a voluntary component providing for the procedural aspects such as the parties involved, contents of a possible
agreement, timeframes, and so forth.9
In the light of the clear views of the European Court for Human Rights10 and the Constitutional Court 11 and the
long history underpinning this right, the right to collective bargaining, should be unqualifiedly endorsed.12
1 This right has been established in South African law since 1983. See UAMAWU v Fodens (SA) 1983 ILJ
212 (IC). See also East Rand Gold & Uranium Co v NUM 1989 ILJ 683 (LAC); NUM v East Rand Gold &
Uranium Co 1991 I L J 1221 (A); NUM v Buffelsfontein Gold Mining Co 1991 I L J 346 (IC). For the
recognition of this right since 1994, see fn 5 infra.
2 Constitution of the RSA 200 of 1993 s 27(3) (2).
3 Constitution of the Republic of SA 108 of 1996.
4 S 23(5).
5 See also Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of
the Republic of SA 108 of 1996 1996 ILJ 821 (CC) (regarding the right of individual employers to
bargain collectively); SANDFU v Minister of Defence 2003 ILJ 2101 (T); contra: SANDU v Minister of
Defence 2003 ILJ 1495 (T); SANDU v Minister of Defence; Minister of Defence v SANDU 2006 11 BLLR
1043 (SCA); Vettori 2005 De Jure 382. See also Steenkamp et al 2004 ILJ 953; Van Jaarsveld 2004 De
Jure 349, 2006 De Jure 655, 2007 THRHR 299; Fudge 2008 ILJ (UK) 25; Budeli 2010 Obiter 25; Theron
2015 ILJ 849. See also Heinecken et al 2007 IJCLLIR 463.
6 2007 ILJ 1909 (CC) par 50B­C. See Van Jaarsveld 2008 THRHR 124; Grogan 2007 EL 3.
7 66 of 1995.
8 See fn 4 supra; par 613 post and also in general Du Toit 2007 ILJ 1405.
9 See Van Jaarsveld 2007 THRHR 299, 2008 THRHR 124.
10 See par 611 ante and more specifically the case of Demir and Baykara.
11 See the decision of Reagan J in SANDU v Minister of Defence supra.
12 See also Free Market Foundation v Minister of Labour 2016 ILJ 1638 (GP) par 4; Van Jaarsveld 2014
Obiter 108.

613 Labour Relations Act Both the long title1 of the Labour Relations Act 2 and the primary objects of the Act fully
endorse the right to collective bargaining. The primary objects of the Act are, amongst others:
(a) to provide a framework in which trade unions and employers can bargain collectively;3
(b) to promote orderly collective bargaining and to extend this to the sectoral level;4 and
(c) to promote employee participation in decision­making in the workplace.5
1 Which includes "to promote and facilitate collective bargaining at the workplace and at sectoral level".
2 66 of 1995.
3 S 1(c)(i). See AMCU v Bafokeng Rasimore MS 2017 ILJ 931 (LC).
4 s 1(d)(i) (ii). See AMCU v Chamber of Mines 2017 6 BCLR 700 (CC); 2017 ILJ 831 (CC).
5 S 1(d)(iii).

REQUIREMENTS FOR COLLECTIVE BARGAINING

Introduction

614 Overview Previously the government placed a premium on voluntarism (self­government) in the ranks of
organised labour. 1 The implication of such a policy was that the role of the government and the courts2 in the
sphere of labour relations bargaining was restricted to a minimum in order to give effect to this objective.
Contemporary labour legislation is also designed in such a manner so as to correspond with this policy.3
 1 See 1980 Annual Report of the Department of Manpower vii; Davis 1990 A J 45 51­52. See also
Brassey et al The New Labour Law 151 et seq; Cameron et al The New Labour Relations Act 22­9.
2 Regarding the interference by the courts with collective bargaining, see Cameron et al 96­106;
Jordaan 1989 ILJ 791.
3 See Constitution of the Republic of SA 108 of 1996s 23(5); Besaans Du Plessis v NUSAW 1990 ILJ 690
(LAC); NUM v Henry Gould 1988 ILJ 1149 (IC); TWIU v Maroc Carpet & Textile Mills 1989 ILJ 526 (IC);
BAWU SA v PEK Manufacturing Co 1990 ILJ 1095 (IC); SACCAWUSA v Southern Sun Corporation 1991
ILJ 835 (IC); SANDU v Minister of Defence 2003 ILJ 1495 (T); SANDFU v Minister of Defence 2003 ILJ
2101 (T); SANDU v Minister of Defence 2007 ILJ 1909 (CC); NEWU v Leonard Dingler 2011 ILJ 1968
(LC).

Duty To Bargain (Negotiate)

615 Nature of duty The Labour Relations Act 1 provides in several instances for collective bargaining when the
parties intend exercising their collective labour rights or intend utilising the statutory conciliation machinery.2
Doubts were expressed as to whether a duty to bargain existed, especially in light of the fact that the whole
process of collective bargaining was regarded as being voluntary.3 This doubt was removed, although to some
extent in a confusing way, in FAWU v Spekenham Supreme (2),4 where the court held: "I do not believe that
voluntarism has any further right of existence in a system which is principally intended to combat industrial unrest.
In my view, and having regard to the fact that fairness is now the overriding consideration in labour relations in
South Africa, it is time for the court to find firmly and unequivocally that in general terms it is unfair for an employer
not to negotiate with a representative trade union".5 The principle was confirmed in NUM v East Rand Gold &
Uranium Co:6 "The fundamental philosophy of the Act is that collective bargaining is the means preferred by the
legislature for the maintenance of good labour relations and for the resolution of labour disputes".7
These views can be subscribed to if it is remembered that a distinction must be drawn between the right to
collective bargaining (with a corresponding duty to bargain collectively) which is compulsory and the mechanisms,
parties and outcomes of such bargaining which are all voluntary.8
1 66 of 1995.
2 See ss 20 25 26 28(a). In general the courts are unwilling to intervene in the collective bargaining
process and will uphold bargaining agreements, unless it is unfair. See Besaans Du Plessis v NUSAW
1990 ILJ 690 (LAC); FAWU v Pietersburg Milling Co 1995 9 BLLR 20 (LAC); Fraser Alexander Bulk
Materials Handling v CWIU 1 9 9 6 3 B L L R 3 1 4 ( I C ); a n d , i n c o n t r a s t , Western Cape Education
Department v George 1996 ILJ 547 (LAC).
3 See par 612 ante; SAAWU v Border Boxes 1987 ILJ 467 (IC); UAMAWU v Thomsons 1988 ILJ 266
(IC); Mutual & Federal Insurance Co v BIFAWU 1996 ILJ 241 (A) (only collective rights); Davis 1990 AJ
45. Cf also Thompson 1987 ILJ 1; Davis 1991 ILJ 1181; Du Toit et al Labour Relations Law (3ed) 160
132.
4 1988 ILJ 628 (IC).
5 FAWU v Spekenham Supreme (2) supra 636­637. See also NUM v Gold Fields of SA 1989 ILJ 86 (IC);
Sentraal­Wes (Koöp) v FAWU 1990 ILJ 977 (LAC) 992­993; Photocircuit SA v De Klerk 1991 ILJ 289
(A); Corobrik Natal v CAWU 1991 ILJ 1140 (ARB); SEAWU v BRC Weldmesh 1991 ILJ 1304 (IC).
6 1991 ILJ 1221 (A) 1236I­1237A.
7 See also Perskorporasie van SA Bpk v MWASA 1993 I L J 938 (LAC); BIFAWU v Mutual & Federal
Insurance Co 1994 ILJ 1031 (LAC); SACCAWU v Shoecorp Shoe Stores 1994 ILJ 1031 (LAC); FWCSA v
Bokomo Mills 1994 ILJ 1371 (IC); SASBO v Standard Bank 1995 ILJ 362 (LAC); 1998 ILJ 223 (SCA)
(see par 616 f n 2 post); Cobra Watertech v NUMSA 1995 ILJ 607 (LAC); Mazibuko v Hotels, Inns &
Resorts 1996 ILJ 263 (IC); Mzeku v Volkswagen SA 2001 8 BLLR 857 (LAC); SANDFU v Minister of
Defence 2003 ILJ 2101 (T).
8 See par 612 ante; Steenkamp et al 2004 ILJ 953; Van Jaarsveld 2004 De Jure 349, 2007 THRHR 299,
2008 THRHR 124, 2014 Obiter 108; Brand 2016 Obiter 480; Govindjee and Cripps 2016 Obiter 474.

616 Statutory recognition As was explained earlier,1 the right to collective bargaining is unequivocally recognised
in South Africa by section 23 of the Constitution2 although the contents of this right is not clear. 3 Similarly, the
opposite to this right, namely the duty to bargain, should also be recognised.4
1 See par 612 ante.
2 See Constitution of the Republic of SA 108 of 1996s 23(4)(b) (5) and SANDU v Minister of Defence
2007 ILJ 1909 (CC). The view of Du Toit et al Labour Relations Law (3ed) 132 that "the absence of a
statutory duty to bargain is the most conspicuous omission from the new arrangement" cannot be
supported. A distinction must be made between the substantive and procedural components of
collective bargaining. At most the procedural component could be regarded as having a voluntary and
private element but the substantive component of the right (duty) to collective bargaining is
involuntary and inalienable. The earlier decision of the Supreme Court of Appeal in SASBO v Standard
Bank of SA Ltd 1998 ILJ 223 (SCA) does not detract from this fundamental right as it only dealt with
the procedural component of collective bargaining. See also SA Airways v NTM 2016 ILJ 2128 (LC) par
27; City of Johannesburg v SAMWU 2017 ILJ 1342 (LC).
3 See NPSU v National Negotiating Forum 1999 ILJ 1081 (LC); ECCAWU v Southern Sun Hotel Interests
2000 ILJ 1090 (LC); SANDU v Minister of Defence 2003 ILJ 2101 (T); 2007 ILJ 1909 (CC); contra:
SANDU v Minister of Defence 2003 ILJ 1495 (T); SANDU v Minister of Defence 2006 11 BLLR 1043
(SCA); NEWU v Leonard Dingler 2011 ILJ 1968 (LC); Du Toit (1998) 7(4) LLN 4; Olivier 1998 ABLU
Papers 32­34.
4 See par 615 ante. In SANDU v Minister of Defence (2003) supra it was decided that there is no right
but only on a freedom to collective bargaining and thus consequently also no duty to bargain. This
decision was later rejected in SANDU v Minister of Defence (2003) supra; BHP Billiton Energy Coal SA v
CCMA 2009 ILJ 2056 (LC) (no duty). See, too, Landman 2004 ILJ 39; Steenkamp et al 2004 ILJ 943;
 Van Jaarsveld 2004 De Jure 315, 2006 De Jure 655, 2007 THRHR 299, 2008 THRHR 124; Vettori 2005
De Jure 382; Du Toit 2007 ILJ 1405.

617 When duty arises The duty to negotiate arises for a party as soon as an employer­employee relationship is
established,1 although such an obligation could also exist, for instance, in a situation where the takeover of a
business by the prospective buyer has not yet been finalised and it is incumbent upon the buyer ("employer") to
negotiate with the representatives of the employees, namely the representative trade union.2
1 Cf Ntuli v Hazelmore Group 1988 ILJ 709 (IC); Ward v Sentrachem 1992 ILJ 252 (IC); Lathe v Impala
Holiday Flats 1993 ILJ 1074 (IC).
2 Labour Relations Act 66 of 1995s 64(2). See also SAA v NTM 2016 ILJ 2128 (LC) (duty to bargain
prevented by power struggle in trade union).

618 Refusal to bargain The words "refusal to bargain"1 are explained in the Labour Relations Act 2 as including:
(a) a refusal to recognise a trade union as a bargaining agent;3
(b) a refusal to agree to the establishment of a bargaining council;4
(c) the withdrawal of recognition of a bargaining agent;5
(d) the resignation from a bargaining council;6 and
(e) any dispute about appropriate bargaining units, bargaining levels or bargaining subjects.7
1 See pars 625­626 post and, in general, NEWU v MEIBC 2002 1 BLLR 62 (LC) (bargaining councils
entitled to issue advisory award); SANDU v Minister of Defence; Minister of Defence v SANDU 2006 11
BLLR 1043 (SCA).
2 66 of 1995: s 64(2).
3 S 64(2)(a)(i). See Natal Sharks Board v SACCAWU 1997 8 BLLR 1032 (LC); FGWU v Minister of Safety
& Security 1999 ILJ 1258 (LC).
4 S 64(2)(a)(ii).
5 S 64(2)(b).
6 S 64(2)(c).
7 S 64(2)(d). For cases where refusal to negotiate was justified, see MAWU v Hart 1985 ILJ 478 (IC);
FAWU v Sentraalwes (Koöp) Bpk 1989 ILJ 1076 (IC); SASBO v Standard Bank of SA 1994 ILJ 332 (IC);
1995 5 BLLR 12 (LAC); FWCSA v Bokomo Mills 1994 12 BLLR 99 (IC); Nhlapo v Mutual & Federal
Insurance Co 1996 2 BLLR 221 (IC); Mutual & Federal Insurance Co v BIFAWU 1996 4 BLLR 403 (A);
TAWU v Motorvia 1996 9 BLLR 1189 (IC) (minority union); Mkhwebane v Veesentraal 1996 ILJ 162
(IC); SASBO v Standard Bank 1998 ILJ 223 (A); CEPPWAWU v Prime Furniture Manufacturers 2016 ILJ
2701 (BCA).

619 Bargaining in good faith A party not only has a duty to negotiate, he or she has a duty do so in good faith.
This requirement was confirmed as follows in NUM v East Rand Gold & Uranium Co:1 "[T]he very stuff of collective
bargaining is the duty to bargain in good faith." The meaning of the concept "bona fide negotiations" was explained
as follows in East Rand Gold & Uranium Co v NUM:2 "In our view it is clear that an important element of the
obligation to bargain in good faith is to meet and to negotiate with an honest intention of reaching an agreement, if
this is possible."3
1 1991 ILJ 1221 (A) 1237E. See also Brassey et al The New Labour Law 149 et seq; Cameron et al The
New Labour Relations Act 33 et seq; Brassey Commentary on the Labour Relations Act A3­29; Du Toit
et al Labour Relations Law 250.
2 1989 ILJ 683 (LAC) 697F.
3 See also the following definition (692): "It is clear however that good faith bargaining entails that the
purpose of the negotiations must be to reach an agreement." See, further, SAEWA v Goedehoop
Colliery 1991 ILJ 856 (IC) where it was stated that willingness to compromise is a feature of good faith
bargaining; ECCAWU v Southern Sun Hotel Interests 2000 ILJ 1090 (LC); Rycroft 1988 ILJ 202; Van
der Merwe 1988 ILJ 749; Louw 1989 SAMLJ 208; Basson 1992 SLR 32 252, 1987 MBL 33; Brand 2016
Obiter 480; Govindjee and Cripps 2016 Obiter 474.

620 Duty to disclose information1 An employer must disclose all relevant information2 to:
(a) a trade union representative to enable him or her to perform his or her trade union functions effectively;3
and
(b) a representative trade union4 to enable it to consult or negotiate effectively.5
The employer is, however, not required to disclose information that:6
(a) is legally privileged;7
(b) would mean that disclosure would be in contravention of a prohibition in terms of a law or an order of
court;8
(c) is confidential and, when disclosed, may cause substantial harm to the employer or the employee;9 or
(d) is private personal information regarding an employee, unless he or she consents to disclosure.10
1 See Brand and Cassim 1980 ILJ 249; Rycroft 1988 ILJ 202; Landman 1996 CLL 21 and also Promotion
of Access to Information Act 2 of 2000.
2 This requirement is not defined by the Labour Relations Act 66 of 1995; but see Atlantis Diesel Engines
 v NUMSA 1994 I L J 1247 (A); NUMSA v Comark Holdings 1997 5 BLLR 589 (LC); Kgethe v LMK
Manufacturing 1998 3 BLLR 248 (LAC); Benjamin v Plessey Tellumat SA 1998 ILJ 595 (LC); SACCAWU
v Pep Stores 1998 ILJ 1226 (LC).
3 S 16(2); but see s 17(2)(b).
4 S 16(1) defines such a union as one which has the majority of the employees as members.
5 S 16(3). I f a n y o f t h e d i s c l o s e d i n f o r m a t i o n i s c o n f i d e n t i a l , t h e e m p l o y e r m u s t i n f o r m t h e
representative of the trade union or the representative trade union: s 16(4). See also NUMSA v Atlantis
Diesel Engines 1993 ILJ 642 (LAC); Atlantis Diesel Engines v NUMSA supra; NEWU v Mintroad Saw Mills
1998 ILJ 95 (LC).
6 See s 16(5) and par 471 ante; Atlantis Diesel Engines v NUMSA supra;. CWIU v Lennon 1994 10 BLLR 1
(LAC); Van Rensburg v Austen Safe 1998 ILJ 158 (LC) (abuse of information).
7 S 16(5)(a). See also S v Safatsa 1988 4 All SA 239 (A); 1988 1 SA 868 (A).
8 S 16(5)(b).
9 S 16(5)(c). See NUMSA v Atlantis Diesel Engines supra 652.
10 S 16(5)(d).

BARGAINING AGENTS, LEVELS AND TOPICS

621 Requirement of representativeness If it is accepted that there is an obligation on an employer to negotiate,

the question arises with which trade union or representative (agent)1 of the employees the employer should
negotiate.2 If a recognition agreement 3 has not been concluded with a trade union, then an employer is only
compelled to bargain with a representative union.4 In this regard the following approaches are pertinent in
determining the representativeness of a trade union:
(a) Majoritarian approach: The employer need only negotiate with the trade union who enjoys the support of
the majority (50,1 per cent or more) of the employees.5
(b) Pluralist approach: In terms of the pluralist approach the employer must negotiate with every trade union
that enjoys substantial support or which is sufficiently representative of the employees. This will usually be the case
if a trade union has the support of about 30 per cent or more of the employees.6
(c) The allcomers approach: The allcomers approach implies that the employer is compelled to negotiate with
every trade union represented in the undertaking, however small its support might be.7
1 SAMA v University of Limpopo 2012 ILJ 2954 (LC) (employees not authorised to negotiate).
2 The role of an employee as a shop steward should be distinguished from his or her role and position as
an ordinary employee: Adcock Ingram Critical Care v CCMA 2000 ILJ 1752 (LC) (employee disciplined
because of misconduct as shop steward during collective bargaining).
3 See pars 642 et seq post.
4 See Labour Relations Act 66 of 1995s 11; par 615 ante. See also Fraser Alexander Bulk Materials
Handling v CWIU 1996 3 BLLR 314 (IC); Pitjeng v EC Lenning 1995 10 BLLR 81 (IC) (labour consultant
as bargaining agent); SAUJ v SA Broadcasting Corporation 1999 I L J 2840 (LAC); NUCW v Oranje
Mynbou & Vervoer Maatskappy 2000 2 BLLR 196 (LC); SACTWU v Marley 2000 I L J 425 (CCMA)
(factors to determine representativeness); Department of Community Safety: Western Cape Provincial
Government v GPSSBC 2011 ILJ 890 (LC).
5 See par 622 post; Mynwerkersunie v African Products 1987 ILJ 401 (IC); Ramolesane v Andrew Mentis
1991 ILJ 329 (LAC). See also BAISEMWU v Iscor 1990 ILJ 156 (IC); SACCAWU v Southern Sun Hotel
Corporation 2017 ILJ 463 (LC); SA Polymer Holdings v Llale 1994 I L J 277 (LAC); Broodryk v SA
Airways 1996 ILJ 278 (IC); NUMSA v Feltex Foam 1997 ILJ 1404 (CCMA); FGWU v Irvin & Johnson
1999 ILJ 1547 (LC); SAMA v University of Limpopo supra; Concor Projects v CCMA 2013 ILJ 2217 (LC);
2014 ILJ 1959 (LAC); Chamber of Mines v AMCU 2014 ILJ 3111 (LC); PPCRU v Ledwaba 2014 ILJ 1037
(LC); NUM v Lonmin Platinum 2014 ILJ 486 (LC); AMCU v Chamber of Mines 2017 6 BCLR 700 (CC);
2017 ILJ 831 (CC); Free Market Foundation v Minister of Labour 2016 ILJ 1638 (GP); AMCU v Bafokeng
Rasimore MS 2017 ILJ 931 (LC); Christie 1994 ILJ 708; Coetzer 2015 ILJ 94; Snyman 2016 ILJ 865.
6 See par 622 post; NUTW v Rotex Fabrics 1987 ILJ 841 (IC); Mynwerkersunie v African Products supra;
Stocks & Stocks v BAWU 1990 ILJ 369 (IC); CTMPSA v Municipality of the City of Cape Town 1994 ILJ
348 (IC); Mutual & Federal Insurance Co v BIFAWU 1996 ILJ 241 (A); UPUSA v Komming Knitting 1997
4 BLLR 508 (CCMA); OCGWU v Total (SA) 1999 ILJ 2176 (CCMA).
7 NBAWU v BB Cereals 1989 ILJ 870 (IC); RTEAWU v Tedelex 1990 ILJ 1272 (IC); SASBO v Bank of
Lisbon International 1994 ILJ 555 (LAC); SASBO v Standard Bank of SA 1995 ILJ 362 (LAC); FWCSA v
Bokomo Mills 1994 ILJ 1371 (IC); TAWU v Motorvia 1996 9 BLLR 1189 (IC). See also NUM v Henry
Gould 1988 ILJ 1149 (IC); PSASA v Minister of Justice 1997 ILJ 241 (T) (regarding the determination of
"representivity"). It was also held that the court would not intervene: BAWU v Edward Hotel 1989 ILJ
357 (IC); NBAWU v BB Cereals supra. See further BIFAWU v Mutual & Federal Insurance Co 1994 ILJ
1031 (LAC); Mkhwebane v Veesentraal 1996 ILJ 162 (IC); SAUJ v SA Broadcasting Corporation 1999
ILJ 2840 (LAC); NUMSA v Bader Bop 2003 2 BCLR 182 (CC); 2003 2 BLLR 103 (CC); 2003 ILJ 305
(CC); Transnet SOC v NTM 2014 ILJ 1418 (LC) (number of minority unions); Thompson 1989 ILJ 808;
Du Toit 1993 ILJ 1167; Kruger and Van Eck 1997 De Jure 152; Esitang and Van Eck 2016 ILJ 763.

622 Labour Relations Act The Labour Relations Act 1 recognises both the majoritarian and pluralist approaches2
by providing that the requirement of sufficient representation of a trade union should be complied with in case of:
(a) the exercising of organisational rights;3 and
(b) membership of a bargaining council.4
The majority representation requirement of a union should be complied with in the case of:
(a) the election of shop stewards;5
 (b) the disclosure of relevant information;6
(c) the conclusion of an agency shop agreement with a trade union;7
(d) conclusion of a closed shop agreements;8
(e) the extension of collective agreements to non­parties of a bargaining council;9 and
(f ) the establishment of a workplace forum.10
1 66 of 1995.
2 See par 621 ante.
3 S 11. See also par 454 ante; NUMSA v Feltex Foam 1997 6 BLLR 798 (CCMA); Snyman 2016 ILJ 865.
4 S 29(11)(b)(iv). See also par 444 ante; Du Toit 1993 ILJ 1167.
5 S 14(1). See also par 463 ante.
6 S 16(1). See also par 471 ante; Du Toit 1993 ILJ 1167.
7 S 25(2) and see pars 466­468 ante.
8 S 26(2). See pars 447­449 ante and, in general, BIFAWU v Mutual & Federal Insurance Co 1994 ILJ
1031 (LAC).
9 S 32(1) a n d s e e p a r 536 a n t e ; AMCU v Chamber of Mines 2016 I L J 1333 (LAC); Free Market
Foundation v Minister of Labour 2016 ILJ 1638 (GP).
10 S 78(b) and see par 572 ante.

623 Collective bargaining levels or units The question arises whether an employer can be compelled by a
sufficiently representative trade union to negotiate at plant level about conditions of employment when the
employer has already negotiated at bargaining council level with regard to the same matters.1 A possible solution
to this problem was provided in Besaans Du Plessis (Pretoria Foundries) v NUSAW:2 "In order for an applicant to
succeed in an application for the determination of an alleged unfair labour practice it is essential that the court find
that an element of unfairness is present and that this is attributable to the other party. The appellant has advanced
compelling reasons for its adherence to the industrial council system. The respondent has countered this by
advancing reasons as to why it favours bargaining at plant level. The issue largely concerns a question of tactics. In
view of the evidence represented, it cannot be said that the appellant has committed an unfair labour practice in
failing to accede to the respondent's request. In the absence of manifest unfairness the choice of a bargaining
forum should be left to the respective power of the parties involved.3 It is undesirable and in any event it would not
be competent for a court in the absence of unfairness to interfere in the relationship of the parties and of its own
motion to choose which tactic should succeed."4
The choice of the bargaining forum, level or unit should therefore be left to the negotiating power of the parties.5
In general, a court will not intervene to determine the appropriate bargaining unit in the absence of any
unfairness.6 However, it will do so if the employer refuses to bargain in respect of such unit, especially if:
(a) the union enjoys substantial support; or
(b) the units proposed by the employer are unfair.7
1 See Marcus 1991 SAJLR 31; Basson 1992 SLR 252; Le Roux 1993 SAMLJ 326; Du Toit 1995 ILJ 785;
Brown 1995 ILJ 979; Adair and Albertyn 2000 ILJ 813; Vettori 2001 De Jure 342; Anstey 2004 ILJ
1829; Fergus and Godfrey 2016 ILJ 2211; CSS Tactical v SOCRAWU 2014 ILJ 3140 (LC).
2 1990 ILJ 690 (LAC) 694.
3 SACTWU v Klein Karoo International 2013 ILJ 478 (BCA).
4 See also MAWU v Hart 1985 ILJ 478 (IC); UAMAWU v Thomsons 1988 ILJ 266 (IC); PPWAWU v SA
Printing & Allied Industries Federation 1990 ILJ 345 (IC); Transkei Sun International v SACCAWU 1992
ILJ 69 (Tk).
5 BAWU v Edward Hotel 1989 ILJ 357 (IC); SAWU v Rutherford Joinery 1990 ILJ 695 (IC) 703; SEAWU v
BRC Weldmesh 1991 ILJ 1304 (IC); SAUJ v Times Media 1993 I L J 387 (IC); BIFAWU v Mutual &
Federal Insurance Co 1993 ILJ 1298 (IC); 1994 ILJ 1031 (LAC); Mutual & Federal Insurance Co v
BIFAWU 1996 I L J 2 4 1 ( A ) ; Fidelity Guards v PTWU 1997 11 BLLR 1425 (LC); NUMSA v Dzima
Manufacturing 1999 ILJ 2904 (LC); NUMSA v Defy Appliance 2004 ILJ 2396 (BCA); Cape Gate v NUMSA
2007 ILJ 871 (LC).
6 CSS Tactical v SSCRAWU 2015 ILJ 2764 (LAC).
7 Standard Bank of SA v SASBO 1994 ILJ 564 (LAC); SASBO v Standard Bank of SA 1994 ILJ 332 (IC)
(unfair bargaining units); Mutual & Federal Insurance Co v BIFAWU supra; MIBC v SAMIEA 1997 10
BLLR 1328 (LC); FAWU v Wilmark 1998 ILJ 928 (CCMA); SAMWU v Rand Water Board 2001 ILJ 1724
(ARB) (factors). See, in general, also CSS Tactical v SOCRAWU supra; Cheadle 1991 EL 36; Adair and
Albertyn 2000 ILJ 813.

624 Bargaining subjects In general negotiations can take place on any subject with regard to conditions of
employment which could be contained in a collective labour agreement, provided the subjects are of mutual
interest 1 to both parties or concerns the employment relationship.2 Negotiations may not cover subjects that
would be:
(a) in conflict with any statutory provision;3
(b) in conflict with any bargaining council agreement;4
(c) unreasonable or unfair;5 or
(d) legally and physically impossible to execute.6
Some subjects for negotiation are controversial and may be regarded as borderline cases. In such a case the
court must be guided by considerations of fairness.7 If a subject (demand) is covered by provisions of the Labour
Relations Act 8 which are not peremptory, then the parties are not compelled to bargain or enter into an agreement
on it.9
1 Regarding meaning of " mutual interest", see par 632 post; Vanachem Vanadium Products v NUMSA
2014 ILJ 3241 (LC); Pikitup SOC v SAMWU 2014 ILJ 983 (LAC).
2 See pars 633 et seq post; NUM v East Rand Gold & Uranium Co 1991 ILJ 1221 (A) (wages); Corobrik
Natal v CAWU 1991 ILJ 1140 (ARB) (introduction of new work practices); Photocircuit SA v De Klerk
1991 ILJ 289 (A) (stop­order facilities); NUMSA v Iscor 1992 ILJ 1190 (IC) (award of bonus); SASBO v
Bank of Lisbon 1994 ILJ 555 (LAC) (pension fund); Standard Bank v SASBO 1994 ILJ 564 (LAC) (staff
loans ­ discretionary matter); SASBO v Standard Bank 1994 ILJ 332 (IC) (bargaining units); A Mauchle
v NUMSA 1995 ILJ 349 (LAC) (productivity); SANSEA v NUSOG 1997 4 BLLR 486 (CCMA) (withdrawal
from bargaining unit); Mthimkhulu v CCMA 1999 ILJ 620 (LC) (dispute resolution procedure); SADTU v
Minister of Education 2001 ILJ 2325 (LC); NUMSA v Volkswagen of SA 2008 ILJ 229 (ARB) (short­time);
NUMSA v Johnson Matthey 2011 I L J 1488 (BCA) (retrenchment agreement); Makati v Bay United
Football Club 2011 ILJ 1807 (ARB) (settlement); Department of Community Safety: Western Cape
Provincial Government v GPSSBC 2011 ILJ 890 (LC) (shift system); eThekwini Municipality v IMATU
2012 ILJ 152 (LAC) (placement policy); Air Chefs v SATAWU 2014 ILJ 3088 (LC); Albertyn 1994 EL 6,
1994 EL 26 28.
3 See Basic Conditions of Employment Act 75 of 1997ss 43 44 46 48 92; Photocircuit SA v De Klerk
supra; George v Western Cape Education Department 1996 2 BLLR 166 (IC).
4 See Labour Relations Act 66 of 1995ss 199(1), (2); S v Guild Painters & Decorators 1990 ILJ 487 (C);
Photocircuit SA v De Klerk supra; Air Chefs v SATAWU 2014 ILJ 3088 (LC).
5 See BTR Dunlop v NUMSA (2) 1989 ILJ 701 (IC); Mazibuko v Mooi River Textiles 1989 ILJ 875 (IC).
See also ACTWUSA v SBH Cotton Mills 1988 ILJ 1026 (IC); SACCAWU v Transkei Sun International
1993 ILJ 867 (TkA); NUMSA v Samancor (1) 1993 ILJ 718 (IC); NUMSA v Samancor (2) 1993 ILJ 637
(LAC).
6 See par 107(c) ante. Regarding disputes in respect of collective agreements, see ss 24 63; Transkei
Sun International v SACCAWU 1992 ILJ 69 (Tk); SASBO v Bank of Lisbon supra; IMATU v City of Cape
Town 2002 9 BALR 913 (BC).
7 Pilkington Shatterprufe Safety Glass v CWIU 1989 ILJ 123 (IC); SACCAWU v Southern Sun Corporation
1991 ILJ 835 (IC) (access facilities); Hoogenoeg Andolusite v NUM (1) 1992 ILJ 87 (LAC) (sale of
business); TWU v Transnet supra; SASBO v Standard Bank supra (internal union matters); Mutual &
Federal Insurance Co v BIFAWU 1996 I L J 241 (A) (bargaining units); Western Cape Education
Department v George 1996 ILJ 547 (LAC) (discrimination); SACCAWU v Bredasdorp Spar 1998 ILJ 947
(CCMA). It was also held that a distinction should be made between mandatory and permissive issues:
SASBO v Standard Bank supra; NUMSA v Fry's Metals 2001 ILJ 701 (LC); Ned v Department of Social
Services & Population Development 2001 ILJ 1039 (BCA) (disciplinary code); IMATU v City of Cape
Town supra.
8 66 of 1995.
9 SATAWU v Northwest Star 2008 ILJ 224 (BCA) (closed shop agreement).

CONDUCT AND TACTICS OF PARTIES DURING COLLECTIVE BARGAINING

625 General principles Earlier it was explained1 that a party is not only obliged to negotiate with other parties
but also to bargain in good faith or bona fide. This is in accordance with the basic purpose and philosophy of the
Labour Relations Act,2 namely "that collective bargaining is the means preferred by the legislature for the
maintenance of good labour relations"3 and the prevention and settling of disputes.4 Therefore all the basic
principles regarding bona fide negotiations so as to ensure harmonious labour relations are applicable. Several
instances have occurred in practice where the conduct or tactics of the parties before, during, after or in the
absence of negotiations were regarded as unacceptable, unfair or in bad faith.5
1 See par 619 ante.
2 66 of 1995.
3 NUM v East Rand Gold & Uranium Co1991 ILJ 1221 (A) 1236J­1237A and see s 1.
4 MacSteel v NUMSA 1990 ILJ 995 (LAC); NUM v East Rand Gold & Uranium Co supra; Don Products v
Monage 1992 ILJ 900 (LAC); Ntsangani v Golden Lay Farms 1992 ILJ 1199 (IC); Perskorporasie van
SA Bpk v MWASA 1993 ILJ 938 (LAC); OK Bazaars (1929) v SACCAWU 1995 ILJ 1031 (A). See also par
563 ante.
5 See in general SAUJ v SA Broadcasting Corporation 1999 ILJ 2840 (LAC).

626 Cases of unfair employee (trade union) conduct Unfair employee conduct includes the following:
(a) making unrealistic and absurd or unfair or unlawful demands;1
(b) failing or refusing to explain and justify demands;2
(c) rejecting the offer of a party in an insulting or unreasonable manner;3
(d) insulting, offensive or intimidating behaviour during negotiations;4 or
(e) imposing a ban on overtime before the negotiations reach deadlock.5
1 Mazibuko v Mooi River Textiles 1989 I L J 875 (IC); BTR Dunlop v NUMSA (2) 1989 I L J 701 (IC);
SACCAWU v Southern Sun Hotel Corporation 2017 ILJ 463 (LC); Photocircuit SA v De Klerk 1991 ILJ
289 (A); Transkei Sun International v SACCAWU 1992 ILJ 69 (Tk); A Mauchle v NUMSA 1995 ILJ 349
(LAC); Cobra Watertech v NUMSA 1995 ILJ 607 (LAC); ECCAWU v Southern Sun Hotel Interests 2000
ILJ 1090 (LC).
2 NUM v East Rand Gold & Uranium Co 1989 ILJ 683 (LAC); Nasionale Suiwelkoöperasie Bpk v FAWU
1989 ILJ 712 (IC); MacSteel v NUMSA 1990 ILJ 995 (LAC); East Rand Gold & Uranium Co v NUM 1991
ILJ 1221 (A).
3 East Rand Gold & Uranium Co v National Union of Mineworkers supra.
 4 UAMAWU v Fodens 1983 ILJ 212 (IC); East Rand Gold & Uranium v NUM supra; NUMSA v Jumbo
Products CC 1991 I L J 1048 (IC); Adcock Ingram Critical Care v CCMA 2001 9 BLLR 979 (LAC)
(intimidation).
5 MacSteel v NUMSA supra; FAWU v Sam's Foods 1991 ILJ 1324 (IC).

627 Unfair conduct of employers Unfair employer conduct includes the following:
(a) refusing to supply information or sufficient information which is relevant to the negotiations;1
(b) refusing to disclose information not only inter partes, but also to other interested parties, should
circumstances dictate such disclosure;2
(c) undermining, ignoring or side­stepping the bargaining agent (trade union);3 h o w e v e r , i f a bona fide
deadlock is reached during negotiations, considerations of fairness may, in certain circumstances, dictate that the
employer be allowed to ignore the accepted bargaining agent of the employees and negotiate directly with the
employees;4
(d) imposing new conditions of employment and changing existing work practices in a one­sided manner, that
is, without prior consultations with the trade union.5 However, an employer is entitled during negotiations to
implement "financial retaliatory" measures to neutralise a strike, for example withholding discretionary annual
bonuses from striking employees ­ but only after negotiations ended in a deadlock;6
(e) locking employees out to compel acceptance of the employer's demands;7
(f ) if more than one trade union is involved in the negotiations, not treating all unions and employees in the
same fair and impartial manner;8
(g) implementing a final offer prematurely;9
(h) the unequal treatment of employees;10 or
(i) concluding a collective agreement with only one faction of a trade union whose rightful leadership is in
doubt.11
1 See Labour Relations Act 66 of 1995s 16; Nasionale Suiwelkoöperasie Bpk v FAWU 1989 ILJ 712 (IC);
NUMSA v Metkor Industries 1990 ILJ 1116 (IC); CWIU v Indian Ocean Fertilizer 1991 ILJ 822 (IC);
NUMSA v Uniross Batteries 1996 ILJ 175 (IC); Brand and Cassim 1980 ILJ 249; Rycroft 1988 ILJ 211.
2 See fn 1 supra; CWIU v Indian Ocean Fertilizer supra; Hoogenoeg Andolusite v NUM (1) 1992 ILJ 87
(LAC); SACCAWU v Southern Sun Hotel Corporation 2017 ILJ 463 (LC); Deale 1994 ILJ 130. Cf also
Brand and Cassim 1980 ILJ 249.
3 East Rand Gold & Uranium Co v NUM 1991 ILJ 1221 (A). See also NUM v Gold Fields of SA 1989 ILJ 86
(IC); NAAWU v Atlantis Diesel Engines 1989 ILJ 948 (IC); FAWU v Sam's Foods 1991 ILJ 1324 (IC);
FAWU v KWV 1994 ILJ 1065 (IC).
4 See East Rand Gold & Uranium Co v NUM supra; NUM v East Rand Gold & Uranium Co 1989 ILJ 683
(LAC); MacSteel v NUMSA 1990 ILJ 995 (LAC); CWIU v Indian Ocean Fertilizer supra; FAWU v KWV
supra; SACCAWU v OK Bazaars 1995 ILJ 1031 (A); SAUJ v SABC 1999 ILJ 2840 (LAC); Thompson 1991
ILJ 1202; Le Roux 1992 SAMLJ 67; Van Jaarsveld 1992 De Jure 196; Basson 1992 SAMLJ 97; likewise
the trade union may institute an overtime ban which otherwise would have been unfair: MacSteel v
NUMSA supra.
5 NUM v Gold Fields supra; BCAWU v Thorpe Timber Co 1991 ILJ 843 (IC); Yichiho Plastics & SACTWU
1991 ILJ 1395 (ARB); NUMSA v Iscor 1992 ILJ 1190 (IC); SASBO v Bank of Lisbon International 1994
ILJ 555 (LAC); A Mauchle v NUMSA 1995 ILJ 349 (LAC); SAUJ v SABC 1999 11 BLLR 1137 (LAC);
NUMSA v Eskom 2001 10 BLLR 1144 (LC); UTATU & Metrorail Services 2002 ILJ 1330 (BCA); SANDU v
Minister of Defence 2007 ILJ 1909 (CC).
6 See in general NUM v East Rand Gold & Uranium 1991 ILJ 1221 (A); CWIU v Indian Ocean Fertilizer
supra; SACCAWU v OK Bazaars (1929) supra. See also FGWU v Lanko Co­operative 1994 ILJ 1380
(IC) (failure to agree); NUM v Black Mountain Mineral Development 1997 ILJ 439 (SCA) (refusal to
backdate an offer); NUM v Eskom Holdings SOC 2012 ILJ 453 (LC) (one­sided implementation of wage
offer).
7 Schoeman v Samsung Electronics 1999 ILJ 200 (LC); Fry's Metal v NUMSA 2003 ILJ 133 (LAC); 2005
ILJ 689 (SCA) (threat of retrenchment).
8 NUM v East Rand Gold & Uranium Co supra; SAAME v City Council of Pietermaritzburg 1991 ILJ 131
(IC); SACCAWU v Southern Sun Hotel Corporation 2017 ILJ 463 (LC). See further NUM v East Rand
Gold & Uranium Co supra; Nasionale Suiwelkoöperasie Bpk v FAWU supra (bad faith bargaining);
Cobra Watertech v NUMSA 1995 ILJ 607 (LAC).
9 NUMSA v Eskom 2001 10 BLLR 1144 (LC). Regarding the implementation of a final order after an
impasse, see SAUJ v SABC 1999 11 BLLR 1137 (LAC).
10 Palaborwa Mining Co and NUM 2002 ILJ 245 (ARB) and see also (d) supra.
11 SA Airways v NTM 2016 ILJ 2128 (LC).

628 Unfair conduct of employer and employee The following instances may constitute unfair conduct by both
parties:
(a) imposing preliminary or unfair conditions before or during negotiations;1
(b) revealing a negative attitude or acting in a negative or counterproductive way in respect of or during the
negotiations;2
(c) implementing unfair delaying tactics;3
(d) displaying conduct that is not conducive to constructive and peaceful negotiations between the parties;4
(e) refusing to discuss the demands of the other party or to attend meetings or proceedings relevant to the
resulting dispute;5
(f ) claiming that the bargaining in bad faith of one party entitles the other party to act unfairly or
unreasonably;6
(g) showing no respect or civility to the other party;7 or
(h) making demands that are outrageous or unconscionable or unreasonable.8
1 Sentraal­Wes (Koöp) v FAWU 1990 ILJ 977 (LAC); FMU v Rolan Essential Oils, Rustenburg 1990 ILJ
1086 (IC); BIFAWU v Mutual & Federal Insurance Co 1994 ILJ 1031 (LAC); Fry's Metal v NUMSA 2005
ILJ 689 (SCA) (threat by employer); SANDU v Minister of Defence 2007 ILJ 1909 (CC).
2 NUM v Marievale Consolidated Mines 1986 ILJ 123 (IC); Chamber of Mines v MWU 1989 ILJ 133 (IC);
NUMSA v Iscor 1992 ILJ 1190 (IC); Mashifane v Clinic Holdings; Hlabane v Clinic Holdings 1993 ILJ 954
(LAC).
3 See FBWUSA v Tvl Atlas Wholesale Meat Distributors 1987 ILJ 335 (IC).
4 Gubb & Inggs v SACTWUSA 1991 ILJ 415 (ARB); CWIU v Indian Ocean Fertilizer 1991 ILJ 822 (IC);
SAEWA v Goedehoop Colliery (Amcoal) 1991 ILJ 856 (IC); NUM v Buffelsfontein Gold Mining Co 1991
ILJ 346 (IC); Performing Arts Council, Tvl v PPWAWU 1994 ILJ 65 (A); Mazibuko v Hotels, Inns &
Resorts 1996 ILJ 263 (IC) (withdrawal of union's mandate); Betha v BTR Sarmcol 1998 ILJ 459 (SCA)
(ulterior motives); Kwik Kopy v Van Haarlem 1999 1 SA 472 (W); Adcock Ingram Critical Care v CCMA
2001 9 BLLR 979 (LAC).
5 SATDU v Ebrahim's Taxis 1999 ILJ 229 (CCMA).
6 Performing Arts Council, Tvl v PPWAWU supra. See also Gubb & Inggs v SACTWUSA supra; NUMSA v
Nalva 1992 ILJ 1207 (IC); SACCAWU v Southern Sun Hotel Corporation 2017 ILJ 463 (LC); SANSEA v
NUSOG 1997 4 BLLR 486 (CCMA); NUM v Black Mountain Development Co 1997 4 BLLR 355 (A).
7 Adcock Ingram Critical Care v CCMA 2001 9 BLLR 979 (LAC).
8 ECCAWUSA v Southern Sun Hotel Interests 2000 4 BLLR 404 (LC); Fry's Metal v NUMSA supra (threat
of retrenchment).

COLLECTIVE AGREEMENTS

629 Overview In the current labour law dispensation the conclusion and implementation procedures of collective
agreements are less formalistic than under the former dispensation.1 Collective agreements occupy a cardinal role
in the system of collective bargaining because successful negotiation has, as its aim, the conclusion of a collective
agreement that will ensure harmony in the ranks of the participating parties.2 Collective bargaining can take place
in respect of a wide spectrum of subjects; the only limitation mentioned in the Labour Relations Act 3 is that the
matter must be of mutual interest to both employer and employees.4 A trade union is also entitled to access all
relevant information in possession of an employer for purposes of collective bargaining.5
1 The formal publication of an agreement of a bargaining council in the Government Gazette has been
phased out. See now, eg, Labour Relations Act 66 of 1995s 213; par 631 post for the requirements of
a valid collective agreement. An industrial council agreement promulgated in terms of the Labour
Relations Act 28 of 1956 (repealed) is not a collective agreement or deemed to be one in terms of
Labour Relations Act 66 of 1995. See Sch 7 item 13(1); BCCI (Natal) v COFESA 1998 ILJ 1458 (LC);
Kritzinger v Newcastle Plaaslike Oorgangsraad 1999 ILJ 2507 (N); Coin Security Group v Minister of
Labour 2001 ILJ 2399 (SCA).
2 See SACCAWU v Shoecorp Shoe Stores 1994 7 BLLR 115 (IC); Timms v Fidelity Guards Holdings 1999
ILJ 1634 (CCMA); Madlanya & Forster 1999 ILJ 2188 (ARB) (purpose is to protect employees); Hlope v
Minister of Safety & Security 2006 ILJ 1003 (LC) (purpose). Generally, the courts are unwilling to
intervene in the bargaining process. See par 612 ante; SACCAWU v Shoecorp Shoe Stores supra;
FAWU v Pietersburg Milling Co 1995 9 BLLR 20 (LAC); Fraser Alexander Bulk Materials Handling v
CWIU 1996 3 BLLR 314 (IC).
3 66 of 1995.
4 See pars 624 ante 632­633 post. Regarding the interaction between collective agreements and the Act,
see Mthimkhulu v CCMA 1999 ILJ 620 (LC).
5 See s 16; NEHAWU v Department of Health: EC 2010 ILJ 480 (CCMA).

630 Definition of "collective agreement" "Collective agreement" means1 a written agreement concerning terms
and conditions of employment or any other matter of mutual interest 2 concluded by one or more registered trade
unions3 on the one hand and, on the other, by:
(a) one or more employers;
(b) one or more registered employers' organisations; or
(c) one or more employers and one or more registered employers' organisations.4
A distinction5 must be drawn between an agreement concluded in terms of section 236 and an agreement
concluded in terms of section 32 of the Act.7
1 See Labour Relations Act 66 of 1995 s 213; IMATU v Cape Town Municipality 1999 ILJ 960 (CCMA);
Mandlanya & Forster 1999 I L J 2188 (ARB) (purpose of collective agreements); Samancor v MWU
Solidarity 2001 ILJ 2550 (ARB) (self­imposed formalities); OCGAWU v Crossberth Sea Food Processors
2005 ILJ 1960 (W); PSASA v Minister of Safety & Security 2010 ILJ 1471 (LC).
2 See par 632 post.
3 The implication is that unregistered trade unions cannot legally be party to a collective bargaining
agreement.
4 See Kem­Lin Fashions CC v Brunton 2000 ILJ 1357 (LC) (re bargaining council).
5 See AMCU v Chamber of Mines 2016 ILJ 1333 (LAC).
6 See par 633 post.
 7 See par 532 ante.

631 Requirements for valid agreements From the definition of "collective agreement", it follows that certain
conditions must be met before such an agreement is valid,1 namely:
(a) the agreement must be in writing;2 however, the agreement need not be signed to be valid;3
(b) the trade union concerned must be registered in terms of the Labour Relations Act;4
(c) the agreement must deal with conditions of employment or any other matter of mutual interest to the
parties concerned and their members;5 and
(d) the agreement must comply with the constitution of the bargaining council or trade union(s) and
employers' organisation(s).6
1 See AUSA v SA Airways 2015 ILJ 3030 (LC).
2 CWU v Telkom 1998 ILJ 389 (CCMA); IMATU v Cape Town Municipality 1999 ILJ 960 (CCMA); NUMSA v
Tredeore 2002 BALR 299 (CCMA); NUMSA v Hendor Mining Supplies 2003 I L J 2171 (LC); Airport
Handling Services v TOWU 2004 ILJ 117 (LC); SAMWU v eThekwini Municipality 2006 ILJ 137 (LAC);
NUMSA v Hendor Mining Supplies 2007 ILJ 1278 (LC).
3 See SA Post Office v CWU 2010 ILJ 997 (LC).
4 66 of 1995. See also par 478 ante and SA Post Office v CWIU supra.
5 See par 632 post; Collins v Volkskas Bank 1994 I L J 1398 (IC); MIBC v Agricultural & Industrial
Mechanisation Holdings 2000 ILJ 2777 (BCA); SADTU v Minister of Education 2001 I L J 2325 (LC);
Diamond v Daimler Chrysler SA 2006 ILJ 2595 (LC).
6 City Council of Cape Town v IMATU 2016 ILJ 147 (LC).

632 The concept of "mutual interest" As indicated above,1 one of the requirements for the validity of an
agreement is that it should deal with matters of mutual interest to both parties.2 This criterion was required in the
previous labour dispensation and in defining it reference will be made to the meaning formulated under that
dispensation. The previous Labour Relations Act 3 concluded with a general provision that an industrial agreement
could deal with any matter regarding remuneration and other employment conditions of employees as well as "any
matter whatsoever of mutual interest to employers and employees".
In Rand Tyres & Accessories & Appel v Industrial Council for the Motor Industry (Tvl), Minister for Labour & Minister for
Justice 4 it was held: "There is no reason in truth, why a matter of trade policy should not be of mutual interest to
employers and employees. Whatever can be fairly and reasonably regarded as calculated to promote the well­being
of the trade concerned must be of mutual interest to the parties concerned, and there is no justification for
restricting in any way powers which the legislature has been at the greatest pains to frame in the widest possible
language."5 These words imply that the concept "mutual interest" may include matters other than merely those
concerning the employer­employee relationship. This view has been confirmed by the courts.6 Thus the widest
possible interpretation should be given to the concept "mutual interest". It will include any matter that fairly and
reasonably could be regarded as affecting the common interests of the parties concerned, or otherwise be directly
or indirectly related thereto.7
1 See pars 624631 ante.
2 Labour Relations Act 66 of 1995s 213 sv "collective agreement" introductory part. See also Itumele
Bus Lines v TAWUSA 2009 ILJ 1099 (LC).
3 28 of 1956: s 24.
4 1941 TPD 108 115.
5 In Graaff­Reinet Advertiser v Beckman 1949 1 SA 600 (EDL) the court stated: "The words have been
given a very liberal interpretation."
6 See R v Woliak 1939 TPD 428; Thomas Clark & Son v Minister of Justice & Minister of Labour 1944 TPD
309; R v Campbell 1936 TPD 84; Concession Stores ATAU v Minister of Labour 1948 1 SA 1179 (T);
Mustapha v Receiver of Revenue 1958 3 SA 343 (A); S v Puzey & Diss Motors 1971 2 SA 502 (RA); R v
Bakkerus 1977 2 All SA 78 (T); 1977 2 SA 489 (T); Pikitup SOC v SAMWU 2014 ILJ 983 (LAC).
7 See par 624 ante; SACCAWU v Bredasdorp Spar 1998 ILJ 947 (CCMA); Fry's Metal v NUMSA 2005 ILJ
689 (SCA) (see also Fry's Metal v NUMSA 2005 ILJ 689 (SCA) 2001 ILJ 701 (LC); Fry's Metal v NUMSA
2005 ILJ 689 (SCA) 2003 ILJ 133 (LAC)); Vanachem Vanadium Products v NUMSA 2014 ILJ 3241 (LC);
Mischke 2001 CLL 86.

633 Contractual requirements Although the legal nature of collective labour agreements and similar agreements
has not yet decisively received the attention of the courts, it is generally accepted that they are fundamentally
ordinary common­law contracts with strong labour law features.1 The terms of an individual employment contract
are by implication altered if a collective agreement applicable to it is amended by agreement.2 The opposite is also
true and therefore a clause in a private contract may replace a similar provision in a collective bargaining agreement
if it is not less favourable to employees than the provision of the collective agreement.3
A collective labour agreement will be valid in law like an ordinary contract if:
(a) consensus exists between the parties concerning the nature, content and consequences of the
agreement;4
(b) the parties to the agreement are legally competent to agree thus, that is, both the employers and the
representatives of the employees enjoy the necessary authority and locus standi to negotiate and to conclude the
contract;5
(c) the agreement itself or its clauses does not constitute an unfair labour practice or is unfair;6
 (d) the agreement is not contrary to any statutory provision;7 and
(e) the agreement complies with all the usual requirements for the valid conclusion and enforcement of a
contract.8
1 See Labour Relations Act 66 of 1995s 213 sv "collective agreement", where it is stated that it is an
"agreement"; Timms v Fidelity Guards Holdings 1 9 9 9 I L J 1 6 3 4 ( C C M A ) ; DENOSA v Provincial
Administration Western Cape 2001 I L J 1383 (LC); Greathead v SACCAWU 2001 I L J 595 (SCA);
Landman 1996 CLL 71. See also the following cases which are applicable to the concept under the old
dispensation: AEU v Minister of Labour 1965 4 SA 94 (W); Pinetown Town Council v President of the
Industrial Court 1984 3 SA 173 (N); Consolidated Frame Cotton Corporation v Minister of Manpower
1984 ILJ 309 (D); 1985 ILJ 159 (N); FAWU v Pietersburg Milling Co 1995 ILJ 1497 (LAC); Woudstra Die
Kollektiewe Arbeidsooreenkoms (1976) Thesis 251; Cameron et al The New Labour Relations Act 133­
134. See also Ceramic Industries v NCBAWU 1999 ILJ 123 (LC) (collective agreements and settlement
agreements); Lloyd v CCMA 2001 ILJ 1832 (LC); PTUSA v Western Province Blood Transfusion Service
2007 ILJ 976 (CCMA) (departure from terms).
2 Gubb & Inggs v SACTWUSA 1991 ILJ 415 (ARB); CWIU v Indian Ocean Fertilizer 1991 ILJ 822 (IC); EJ
Adcock v SACWU 1993 ILJ 261 (ARB); FAWU v KWV 1994 ILJ 1065 (IC); Carlbank Mining Contracts v
NBCRFI 2010 ILJ 2076 (LC).
3 See Papane v Van Aarde 2007 ILJ 2561 (LAC); Carlbank Mining Contracts v NBCRFI 2010 ILJ 2076
(LC).
4 Consolidated Frame Cotton Corporation v Minister of Manpower supra 315­316; Malilang v MV Hunda
Pearl 1986 2 SA 714 (A); CWIU v Indian Ocean Fertilizer supra; SACCAWU v Checkers SA 1992 ILJ 411
(IC); SASBO v First National Bank 1995 10 BLLR 108 (IC); IMATU v Northern Pretoria Metropolitan
Substructure 1999 I L J 1018 (T); Pritchard Cleaning Services v Grogan 1 9 9 9 2 B L L R 1 5 8 ( L C )
(consensus); but see the view adopted in Deukers Bosveld Gold Mine v NUM 1992 ILJ 778 (ARB) that
the doctrine of duress is not applicable to collective agreements. See also Staniland 1993 ILJ 57.
5 Consolidated Frame Cotton Corporation v Minister of Manpower supra 316A; G u b b & I n g g s v
SACTWUSA supra (stipulatio alteri); Don Products v Monage 1992 ILJ 900 (LAC); Mbobo v Randfontein
Estate Gold Mining Co 1992 ILJ 1485 (IC); SA Polymer Holdings v Llale 1994 ILJ 277 (LAC); SACSAWU
v Masonic Haven 1996 ILJ 193 (IC); Broodryk v SA Airways 1996 ILJ 278 (IC); Mazibuko v Hotels,
Inns & Resorts 1996 ILJ 263 (IC); Samancor v NUMSA 2000 ILJ 2305 (LC) (authority of shop steward
and estoppel); Fakude v Kwikot 2013 ILJ 2024 (LC) (consent of members not necessary if mandated to
do so); City of Cape Town v IMATU 2016 ILJ 147 (LC) (contrary to constitution of a party). See also Du
Toit 1993 ILJ 1167, 1994 ILJ 39; Christie 1994 ILJ 708.
6 Marievale Consolidated Mines v The President of the Industrial Court 1986 ILJ 152 (T); Mngomezulu v
Khutala Mining Services 1994 ILJ 374 (IC); Collins v Volkskas Bank 1994 ILJ 1398 (IC); Ngwenya v
Supreme Foods 1994 11 BLLR 77 (IC) (court precluded from enquiring into fairness of provisions);
SASBO v First National Bank supra 130; Heynsen v Armstrong Hydraulics 2000 I L J 2458 (LC)
(discriminatory effect of collective bargaining).
7 See Consolidated Frame Cotton Corporation v Minister of Manpower supra; Photocircuit SA v De Klerk
1991 ILJ 289 (A); Collins v Volkskas Bank supra; CWIU v Boardman Brothers 1995 ILJ 619 (LAC);
FAWU v Pietersburg Milling Co 1995 9 BLLR 20 (LAC); SACCAWU v Garden Route Chalets 1997 3 BLLR
325 (CCMA) (discriminatory provisions contained in collective agreement); Provincial Administration,
Western Cape v HOSPERSA 1998 ILJ 1297 (CCMA) (contrary to statutory regulations); NPSU v National
Negotiating Forum 1999 4 BLLR 361 (LC) (implementation of agreement not an administrative act);
BCFMI v Unique Kitchen Designs 2000 ILJ 419 (CCMA) (contrary to provisions of Labour Relations Act
66 of 1995); NUMSA v SEIFSA 2000 ILJ 1047 (W).
8 See s 213 sv "collective agreement". See also NUM v East Rand Gold & Uranium Co Ltd 1991 ILJ 1221
(A) (suspension of agreement); Gubb & Inggs v SACTWUSA supra; TGWU v SA Stevedores 1994 ILJ
358 (IC); CWIU v Boardman Brothers supra; FAWU v Pietersburg Milling Co 1995 ILJ 1497 (LAC);
MEWSA v Alpine Electrical Contractors 1997 ILJ 1430 (CCMA); Macyusuf v Northwest Communication
Services 1999 ILJ 1061 (LC) (legality and desirability of agreement); NPSU v National Negotiating
Forum supra; NUCW v Oranje Mynbou & Vervoer Maatskappy 2000 2 BLLR 196 (LC); BIBC v Naidoo
2000 ILJ 2253 (LC) (binding nature); Makgabo v Premier Food Industries 2000 ILJ 2667 (LC) (non­
compliance with agreement warranted); Lloyd v CCMA supra; Airport Handling Services v TOWU 2004
ILJ 117 (LC) (no suspensive condition and thus enforceable); UTATU v Tammy 2010 ILJ 2189 (LC)
(rectification not possible in terms of s 24 ­ must be reviewed); SAA v NTM 2016 ILJ 2128 (LC) (faction
disputes in union ­ collective agreement unenforceable).

634 Legal consequences in terms of the LRA Several legal consequences result from the conclusion of a
collective agreement as set out below.
(a) A collective agreement is binding on:
(i) the parties to the agreement as well as their members;1 and
(ii) the members of the registered trade unions and employers' organisations that are parties to the
agreement.2
(b) A collective agreement is also binding on or may be extended to3 non­members of trade unions who are
party to the agreement, if:4
(i) the employees in the undertaking are identified;
(ii) the employees are expressly bound by the agreement; and
(iii) the trade unions concerned have majority support in the ranks of the employees employed by the
employer in the workplace.5
(c) A collective agreement is, for the whole period of the agreement, binding on members of the trade union
irrespective of when they become members.6
 (d) If the employer and employees are bound by a collective agreement, their employment contracts will be
amended accordingly.7
(e) If a collective agreement is concluded for an indefinite period, it may be terminated by any party with
reasonable notice to the other party, unless it contains a provision to the contrary.8
(f ) When the period of the collective agreement has lapsed, the parties are no longer bound by the
agreement.9
(g) A collective agreement may in specific cases alter or replace conditions of employment as provided for in
the Basic Conditions of Employment Act;10 and so forth.11
(h) A sectoral determination in terms of the Basic Conditions of Employment Act is not a collective agreement.
They are separate legal instruments regulated by different acts and have different purposes.12
(i) A collective agreement may curb the common­law rights of the employer and employee but the parties
retain all those common­law rights which are not expressly or by implication waived.13
( j) A collective agreement could include a bargaining council agreement, although the latter must be
distinguished from a section 23 agreement.14
1 Labour Relations Act 66 of 1995ss 23(1)(a) (b) 31; TGWU v SA Stevedores 1994 ILJ 358 (IC); FGWU v
Lanko Co­op 1994 ILJ 1380 (IC); Arnoldus v Rainbow Farms 1995 11 BLLR 1 (IC); SANSEA v NUSOG
1997 4 BLLR 486 (CCMA); MEWSA v Alpine Electrical Contractors 1997 I L J 1430 (CCMA); Reactor
Clothing v Robertson 1998 3 BLLR 315 (LC); Ned v Department of Social Services & Population
Development 2001 ILJ 1039 (BCA); Lloyd v CCMA 2001 ILJ 1832 (LC); UTATU v Autopax Passenger
Services 2001 ILJ 1928 (BCA); Mhlongo v FAWU 2007 ILJ 397 (LC); Mxalisa v Dominium Uranium 2013
ILJ 2052 (LC).
2 S 23(1)(c), if the agreement determines employment conditions or the conduct of the parties inter
partes. See also Intercompany Security Services v TGWU 1995 ILJ 854 (LAC); Arnoldus v Rainbow
Farms supra; NUMSA v Dzima Manufacturing 1999 I L J 2904 (LC) (provisions of bargaining council
agreement incorporated in collective agreement); Mhlongo v FAWU supra; IMATU v SALGBC 2010 ILJ
1407 (LC); Mega Express v Employees as Listed 2012 I L J 2634 (LC); Meyer­Van den Heever v
University of Limpopo 2012 ILJ 2954 (LC).
3 See also par 534 ante; AMCU v Chamber of Mines 2017 6 BCLR 700 (CC); 2017 ILJ 831 (CC); AMCU v
Bafokeng Rasimone MS 2017 ILJ 931 (LC); Sasol Mining v AMCU 2017 ILJ 969 (LC).
4 S 23(1)(d). See Collins v Volkskas Bank 1994 12 BLLR 73 (IC); Tsambo v Ovenstone Farms 1996 ILJ
418 (ALC); TAWU v Motorvia 1996 9 BLLR 1189 (IC) (minority union bound by agreement); Sigwali v
Libanon 2000 I L J 641 (LC). A collective agreement may also be extended to a non­party to the
agreement. See s 32; Kem­Lin Fashions CC v Brunton 2001 1 BLLR 25 (LAC); 2001 ILJ 109 (LAC);
Mega Express v Employees as Listed supra; Chamber of Mines v AMCU 2014 ILJ 3111 (LC) (limitation
on right to strike by minority union justified); AMCU v Chamber of Mines 2017 6 BCLR 700 (CC); 2017
ILJ 831 (CC).
5 Chamber of Mines v AMCU supra (meaning of "workplace").
6 S 23(2). S e e Mazibuko v Hotels, Inns & Resorts 1996 I L J 263 (IC). It also binds former union
members: Vista University v Botha 1997 5 BLLR 614 (LC); Mega Express v Employees as Listed supra.
7 S 23(3). See CWIU v Indian Ocean Fertilizer 1991 ILJ 822 (IC); Gubb & Inggs v SACTWUSA 1991 ILJ
415 (ARB); EJ Adcock (Welkom) v SACWU 1993 ILJ 261 (ARB); Guards Holdings v PTWU 1997 9 BLLR
1125 (LAC); SAMWU v City of Cape Town 2008 7 BLLR 700 (LC); 2008 ILJ 1978 (LC).
8 S 23(4). See TAWUSA v Anglo Platinum 2009 ILJ 2142 (LC); SA Fed CEC v NUMSA 2013 ILJ 2084 (LC).
9 S v Papastefanou 1979 3 SA 692 (T); North East Cape Forests v SAAPAWU (2) 1997 6 BLLR 711 (LAC).
Such agreements may be tacitly extended as is the case with ordinary contracts: S v Papastefanou
supra. See also, regarding the repudiation and cancellation of agreements, NUM v Free State
Consolidated Gold Mines 1988 ILJ 804 (IC); CWIU v Indian Ocean Fertilizer 1988 ILJ 1092 (IC); North
East Cape Forests v SAAPAWU supra (union bound to obligations despite cancellation of agreement).
10 75 of 1997: ss 37(2) 49(2); SATU v Kohler Flexible Packaging (Cape) 2001 ILJ 1892 (LC) (notice).
11 Regarding the enforcement of a collective agreement, see Botshelo Water Board v SALGBC 2007 ILJ
2259 (LC).
12 Concor Projects v CCMA 2014 ILJ 1959 (LAC).
13 IMATU v eThekwini Municipality 2014 ILJ 1572 (LC); AMCU v Chamber of Mines supra.
14 See AMCU v Chamber of Mines 2016 ILJ 1333 (LAC); Vanachem Vanadium Products v NUMSA 2017 ILJ
926 (LAC); contra: Chamber of Mines v AMCU 2014 ILJ 3111 (LC).

635 Non­compliance with and breach of collective agreements If the terms of a collective agreement are
breached or not complied with, or are amended by means of an employment contract or other agreement, the legal
consequences will be that:
(a) the amended agreement or provisions are invalid;1 and
(b) the amendment or breach may constitute an unfair labour practice.2
Any other breach of a collective agreement will be unfair 3 or irregular in case of a procedure.4 Compensation
may be awarded against the employer if the employee is disadvantaged because of the breach of the agreement
by the employer. 5 In case of a breach of a collective agreement the normal contractual remedies are available to
the parties.6
1 Labour Relations Act 66 of 1995s 199(2); SACTWU v Dakbor Clothing 2007 ILJ 1318 (LC).
2 See s 186(2) relating to unfair promotion, demotion, provision of benefits, etc. See also FAWU v SA
Breweries 1990 ILJ 413 (ARB); Gubb & Inggs v SACTWUSA 1991 ILJ 415 (ARB); Matla Coal v NUM
1993 ILJ 766 (ARB); TGWU v SA Stevedores 1994 ILJ 358 (IC); NUM v Richards Bay Minerals 1995 ILJ
649 (IC); Intercompany Security Services v TGWU 1995 ILJ 854 (LAC); BCCI (Natal) v COFESA 1998
ILJ 1458 (LC).
 3 TGWU v SA Stevedores supra. The conduct may also be interdicted in terms of s 158(1)(a)(iii) and see
also Constitution of the Republic of SA 108 of 1996s 23(1).
4 See Lloyd v CCMA 2001 ILJ 1832 (LC).
5 Mahlangu v Telkom SA 2007 ILJ 482 (CCMA); Kwadukuza v SALGBC 2009 I L J 356 (LC) (solatium
awarded).
6 SA Police Service v PSCBC 2008 ILJ 1989 (LC).

636 Waiver of benefits contained in agreements No provision in a contract of employment or any other contract 1
may:
(a) permit an employee to be paid less remuneration2 than that prescribed in a collective agreement;3
(b) permit an employee to be treated in a manner or receive a benefit that is less favourable than that
stipulated in a collective agreement;4 or
(c) waive any of the benefits in a collective agreement.5
If any of the abovementioned provisions form part of any agreement, it will be invalid.6
1 See the Labour Relations Act 66 of 1995s 199(2); NBCRFI v Carlbank Mining Contracts 2012 ILJ 1808
(LAC).
2 See s 213 sv "remuneration".
3 S 199(1)(a).
4 S 199(1)(b). See SACTWU v Dakbor Clothing 2007 ILJ 1318 (LC); NBCRFI v Carlbank Mining Contracts
supra.
5 S 199(1)(c). See also Laws v Rutherfurd 1924 AD 261; Faku v Fidelity Guards Holdings 1998 9 BLLR
746 (SE); Maluti Transport Corporation v MRTAWU 1999 7 BLLR 887 (LAC); NBCRFI v Carlbank Mining
Contracts supra.
6 S 199(2). See also Cremark v SACWU 1994 ILJ 289 (LAC); BIBC v Naidoo 2000 ILJ 2253 (LC); NBCRFI
v Carlbank Mining Contracts supra.

Other Legal Matters Regarding Collective Agreements

637 Defects and irregularities in respect of collective agreements The Labour Relations Act 1 states that any
defect 2 or irregularity with regard to:
(a) the constitution of a trade union, employers' organisation or bargaining council;
(b) a vacancy in the membership of a council; or
(c) the appointment or election of:
(i) a representative or his or her alternate to the council;
(ii) a chairman of a committee to the council; or
(iii) a director or commissioner,
will not invalidate any collective agreement, notwithstanding any provision of the Labour Relations Act or any other
law.3
1 66 of 1995.
2 "Defect" is defined in s 206(2). See NEASA v Minister of Labour 2012 ILJ 929 (LC).
3 S 206(1). See NEASA v Minister of Labour supra.

638 Invalidating defects In spite of the above provision1 there are still other grounds on which an agreement
may be declared void,2 for instance if the agreement is vague3 or if it discriminates against a specific employer or
employee or group of employees.4
When part of an agreement is invalid, the remainder of the agreement will be regarded as valid if the remainder
is of such a nature that it is still possible to execute the main aim of the agreement. If this is not possible the whole
agreement is invalid.5
If the extent and scope of the agreement exceeds the bounds of its statutory scope of application, it is ultra vires
and therefore invalid6 and an agreement will also be invalid if the requirements for a valid collective agreement are
not complied with.7
If an agreement is contrary to the Labour Relations Act or other statutory provision, or the constitution of a
party, the agreement will also be invalid.8
1 See par 637 ante.
2 As the agreement is only voidable and not void ab initio. See SA Airways v NTM 2016 ILJ 2128 (LC).
3 See SASBO v First National Bank of Southern Africa 1995 10 BLLR 108 (IC).
4 See Constitution of the Republic of SA 108 of 1996ss 9 23(1); Employment Equity Act 55 of 1998s 6;
Collins v Volkskas Bank 1994 ILJ 1398 (IC); Swart v Mr Video 1997 2 BLLR 249 (CCMA); PSASA v
Minister of Justice 1997 ILJ 241 (T); Hoffmann v SA Airways 2000 ILJ 2357 (LC); par 120 ante.
5 Johannesburg City Council v Chesterfield House 1 9 5 2 3 S A 8 0 9 ( A ) ; S v G a l g u t's G a r a g e
1969 2 SA 459 (A).
6 See S v Progress Dental Laboratory 1965 3 SA 192 (T).
7 See requirements as stated in Labour Relations Act 66 of 1995s 213. See also par 631 ante.
8 See Consolidated Frame Cotton Corporation v Minister of Manpower supra; Photocircuit SA v De Klerk
1991 ILJ 289 (A); Collins v Volkskas Bank supra; CWIU v Boardman Brothers 1995 ILJ 619 (LAC);
 George v Western Cape Education Department 1995 ILJ 1529 (IC) (in conflict with constitution); FAWU
v Pietersburg Milling Co 1995 9 BLLR 20 (LAC); SACCAWU v Garden Route Chalets 1997 3 BLLR 325
(CCMA) (discriminatory provisions contained in collective agreement); Provincial Administration,
Western Cape v HOSPERSA 1998 ILJ 1297 (CCMA) (contrary to statutory regulations); NPSU v National
Negotiating Forum 1999 4 BLLR 361 (LC) (implementation of agreement not an administrative act);
BCFMI v Unique Kitchen Designs 2000 ILJ 419 (CCMA) (procedure contained in agreement contrary to
provisions of LRA); NUMSA v SEIFSA 2000 ILJ 1047 (W); City of Cape Town v IMATU 2016 ILJ 147
(LC).

639 Availability of collective agreements An employer who is subject to a collective agreement must:
(a) have a copy of the agreement available at the workplace at all times;1
(b) make it available to any employee;2
(c) issue a copy to any employee on payment of a prescribed fee;3 and
(d) give it free of charge to an employee who is a trade union representative or a member of the workplace
forum.4
1 Labour Relations Act 66 of 1995s 204(a).
2 S 204(b).
3 S 204(c)(i).
4 S 204(c)(ii).

640 Interpretation of collective agreements From case law, the following fundamental principles regarding the
interpretation of collective agreements may be deduced:1
(a) An agreement should be interpreted in a manner corresponding with the objectives of the Labour Relations
Act 2 which protects the right to strike and encourages collective bargaining.3
(b) The court should ascertain the intention of the parties to the agreement by assigning the ordinary literal
meaning to the wording, by reading and interpreting the agreement as a whole, and not reading words and
paragraphs disjointedly.4
(c) If the provisions of a collective agreement are ambiguous or vague:
(i) fairness and justice to the parties may be applied in the interpretation;5
(ii) the language of the document must be construed in the light of its context and purpose.6
(d) In the latter case a court is entitled to call for extrinsic evidence ("parol evidence rule") or read it with other
documents,7 to establish the intention of the parties concerned.8
(e) A party is bound by the impression and perceptions that he or she created during the negotiations which
preceded the concluding phase of the negotiations.9
(f ) The agreement will be interpreted against the party by whom it was drawn up and was responsible for any
ambiguity in the agreement itself.10
(g) If the meaning and/or content of the collective agreement is clear and unambiguous, evidence will not be
admissible to vary or supplement the collective agreement because of the operation of the parol evidence rule.11
(h) The interpretation of a collective agreement is a question of law.12
(i) Reliance may be placed on surrounding circumstances to determine a dispute when the conduct of the
parties justify such reliance.13
1 See SASBO v First National Bank 1995 10 BLLR 108 (IC). See also Labour Relations Act 66 of 1995 s
24; Fredericks v MEC Education & Training, Eastern Cape Province 2002 2 BLLR 119 (CC); 2002 2
BCLR 113 (CC); 2002 ILJ 81 (CC); Ekurhuleni Metropolitan Municipality Germiston v Van Rooyen 2002
ILJ 1104 (ARB); APSA v Pretorius 2008 ILJ 318 (LC); Martin v Western Cape Education Department
2008 ILJ 1190 (LC) (implied terms); PSA v Department of Justice & Constitutional Development 2011
ILJ 1271 (BCA); SAMWU v SALGBC 2012 ILJ 353 (LAC); SAMWU v City of Cape Town 2012 ILJ 538
(BCA) (principles); Cape Clothing Association v SACTWU 2012 ILJ 2863 (LC); TOWU v SAPPBC 2015
ILJ 490 (LC) (application); NUMSA v Johnson Matthey 2015 ILJ 2713 (BCA); Le Roux 2007 CLL 81.
2 66 of 1995.
3 NE Cape Forests v SAAPAWU 1997 ILJ 971 (LAC); SACTWU v Klein Karoo International 2013 ILJ 478
(BCA).
4 SASBO v First National Bank supra 118; SAMIEA v NUMSA 1997 ILJ 1301 (LAC); FAWU v Bromor Foods
1998 ILJ 1632 (CCMA); IMATU v SALGBC 2010 ILJ 1407 (LC); PSA v Department of Defence 2013 ILJ
1769 (LC) (review of ruling in respect of collective agreement); Arends v SALGBC 2013 ILJ 2560 (LC)
( jurisdiction); G4S Cash Solutions v MTWUSA 2016 ILJ 1832 (LAC); HOSPTUSA v Department of Health
KZN 2016 ILJ 1839 (LAC); Le Roux 2007 Contemp LL 81.
5 SASBO v First National Bank supra 130. See also Harvestime Corporation v FAWU 1990 I L J 1347
(ARB); Ngwenya v Supreme Foods 1 9 9 4 1 1 B L L R 7 7 ( I C ) (fairness may dictate a restrictive
construction); NCBAWU v Samca Tiles 1999 ILJ 221 (CCMA); UWCASU v University of Western Cape
2002 5 BLLR 487 (LC); SACTWU v Klein Karoo International supra; WC Department of Health v Van
Wyk 2014 ILJ 2078 (LAC); DNOSA v WC Department of Health 2016 ILJ 1819 (LAC).
6 DNOSA v WC Department of Health supra.
7 Ibid.
8 SASBO v First National Bank supra 118; SACTWU v Best Clothing 1997 5 BLLR 658 (CCMA); FAWU v
Clover 2000 ILJ 1443 (CCMA) (stricter approach); UWCASU v University of Western Cape supra; FAWU
v CCMA 2007 ILJ 382 (LC).
 9 SASBO v First National Bank supra 129. See also Sonap Petroleum v Pappadogianis 1992 2 All SA 114
(A); 1992 3 SA 234 (A).
10 SASBO v First National Bank supra 131.
11 See also, in general, FAWU v SA Breweries 1990 I L J 413 (ARB); Stellenbosch Farmers' Winery v
NUWSAW 1992 ILJ 1182 (LAC); Sun Packagings v Vreulink 1996 ILJ 633 (A); North East Cape Forests v
SAAPAWU 1997 ILJ 971 (LAC); Rainbow Chicken Farms v FAWU 1997 ILJ 1307 (LC); Juta v Western
Cape Education Department 1997 7 BLLR 926 (CCMA); SACCAWU v Woolworths 1998 ILJ 57 (LC);
Reactor Clothing v Robertson 1998 3 BLLR 315 (LC); CWIU v Sanachem 1998 I L J 1638 (CCMA)
(interpretation of plant level and sectoral agreements); NUFAWSA v Star Furnishers 1999 I L J 474
(CCMA); NUM v Brand 1999 ILJ 1884 (LC); Shangase v BKB 1999 ILJ 2475 (CCMA); NUMSA v Dzima
Manufacturing 1999 ILJ 2904 (LC); FAWU v Clover supra; NACTWUSA v Waverley Blankets 2000 ILJ
1910 (CCMA); NUMSA v Exacto Craft 2000 ILJ 2760 (CCMA); SA Airways v SAAPA 2001 I L J 1720
(ARB) (annual bonus); Fredericks v MEC Education & Training Eastern Cape Province 2002 2 BLLR 119
(CC); 2002 2 BCLR 113 (CC); 2002 ILJ 81 (CC); Majola v MEC Department of Public Works, Northern
Province 2004 ILJ 131 (LC); SAFCEC v NUM 2010 ILJ 426 (LC) (meaning of peace clause).
12 Intercompany Security Services v TGWU 1995 ILJ 854 (LAC); FAWU v CCMA supra. See also PSA v
SARS 2009 ILJ 2903 (LAC).
13 UASA v Impala Platinum 2010 ILJ 1702 (LC); SAMWU v City of Cape Town supra; NUM v CCMA 2013
ILJ 2913 (LC).

641 Amendment, rectification and termination of collective agreements A collective agreement may be
amended by the Labour Court 1 if the application or effect of the said agreement would be unfair. 2 Rectification of a
collective agreement is also possible if it is substantiated by evidence and there is compliance with the ordinary
requirements of rectification.3 A collective agreement may be terminated by agreement between the parties
involved but not automatically by provisional liquidation.4 It may also be terminated if concluded for an indefinite
period by giving reasonable notice to the other parties.5 An existing agreement may also be superseded by a new
agreement by way of novation.6
1 See Labour Relations Act 66 of 1995s 158(1)(a)(iii) (iv).
2 S e e SA Diamond Workers' Union v Master Diamond Cutters' Association of SA 1982 I L J 87 (IC).
Regarding the amendment of collective agreements in the public service, see Public Servants
Association v Provincial Administration: Western Cape 2000 ILJ 680 (CCMA).
3 See UASA v Lonmin Platinum 2012 ILJ 1491 (LC); CCA v De Kock 2014 ILJ 465 (LC); SALGA v IMATU
2014 ILJ 2811 (LAC) (rectification not possible).
4 See s 32(8); par 538 ante; CTWU v Waverley Blankets 1999 ILJ 2744 (CCMA); NUMSA and Duferco
Steel Processing 2003 ILJ 1610 (CCMA); UASA v BHP Billiton ECSA 2013 ILJ 2118 (LC).
5 See s 23(4); UTATU v Spoornet 2007 ILJ 277 (BCA).
6 SAPO v Nowosenetz 2013 ILJ 1604 (LC).

Recognition Agreements

642 Introduction In conjunction with the right of employees to organise and to negotiate collectively, an employer
may conclude a recognition agreement with a sufficiently representative1 trade union.2 T h e p u r p o s e o f a
recognition agreement is to compel an employer to recognise the right of a specific trade union to negotiate on
behalf of its members who work for the employer and to conclude agreements with regard to employment
conditions.3 Recognition of trade unions may take place in three ways, namely recognition at sectoral level, at
enterprise level or at plant level.4 The name "recognition agreement" is misleading because the majority of such
agreements deal not only with the recognition of trade unions but also with other matters of an organisational and
procedural nature. Nevertheless, such agreements fulfil an important need in practice. More correctly these kinds of
collective labour agreements by an employer and a trade union at plant level are known as recognition and
procedural agreements.5
1 See Labour Relations Act 66 of 1995s 11; pars 621­622 ante. The employer is entitled to proof of the
extent of membership before concluding the agreement: Nomaqumbe v Multi Office 1992 ILJ 152 (IC).
2 See ss 20 21(3); par 456 ante.
3 With regard to the role of recognition agreements and the factors leading to the conclusion of such
agreements, see FAWU v Ceres Fruit Juices 1996 ILJ 1063 (C); NMC Report on Levels of Collective
Bargaining and Work Councils, RP 45/1984 108; 1983 NMC Annual Report (RP 41/1984) 175; Pretorius
1983 ILJ 237; Piron Recognition or Rejection 25.
4 See Pilkington Shatterprufe Safety Glass v CWIU 1989 ILJ 123 (IC); AEUSA v Mondi Paper Co1989 ILJ
521 (IC); Stocks & Stocks v BAWU 1990 ILJ 369 (IC). See also FBWUSA v Tvl Atlas Wholesale Meat
Distributors 1987 ILJ 335 (IC); FAWU v Ceres Fruit Juices supra.
5 See NUM v Gold Fields supra; NBAWU v BB Cereals 1989 ILJ 870 (IC); Matla Coal v NUM 1993 ILJ 766
(ARB) (re a shaft steward's agreement).

643 Consequences of recognition agreements A recognition agreement is, like other collective agreements,1 a
common­law contract concluded by an employer and a trade union;2 therefore all the usual requirements for the
conclusion and enforcement of contracts must be complied with.3 The contents of such an agreement, from a legal
point of view, should deal only with the recognition aspect but presently a wide variety of issues are incorporated in
such agreements, for instance, the right of admission of trade union officials, peace obligations, stop order facilities,
grievance and disciplinary procedures.4 The refusal to recognise a trade union as a bargaining agent or the
withdrawal of such recognition entitles the said union to embark on strike action.5 If a union lost its majority, an
employer is entitled to terminate the recognition agreement.6
1 SACTWU v Island View Holdings 1998 ILJ 882 (LC).
2 Consolidated Frame Cotton Corporation v Minister of Manpower 1984 ILJ 309 (D); 1985 ILJ 159 (N);
 BCAWU v Masterbilt CC 1987 ILJ 670 (IC); Pilkington Shatterprufe Safety Glass v CWIU 1989 ILJ 123
(IC); FAWU v National Co­op Dairies 1989 ILJ 490 (IC); NUMSA v Metkor Industries 1990 ILJ 1116
(IC).
3 See pars 634­636 ante; Labour Relations Act 66 of 1995 Sch 7 item 13(2) (which deems all existing
recognition agreements to be collective agreements in terms of the Act); Pretorius 1983 ILJ 241; NUM
v Gold Fields 1989 ILJ 86 (IC). Regarding the application and interpretation of recognition agreements,
see MAWU v Feralloys 1987 ILJ 124 (IC); ACTWUSA v SBH Cotton Mills 1988 ILJ 1026 (IC); NBAWU v
BB Cereals 1989 ILJ 870 (IC); Allied Media Distributors & MWASA 1991 I L J 911 (ARB). Regarding
amendments, see NUMSA v Bevcan 2002 ILJ 240 (ARB); UTATU and Metrorail Services 2002 ILJ 1330
(BCA); Van Heerden v Apron Services 2002 ILJ 1690 (ARB).
4 Pretorius 1983 ILJ 237 246 states in this regard: "A real recognition agreement is merely directed
towards the recognition of the trade union as negotiating agent." See also Doornfontein Gold Mining Co
v NUM 1994 ILJ 527 (LAC); FAWU v Pietersburg Milling Co 1995 9 BLLR 20 (LAC) (retrenchment
procedures); FGWU v Design Contract Cleaners 1994 ILJ 1078 (IC); UWUSA v SA Stevedores 1994 ILJ
1090 (IC); NUMSA v Bevcan 2002 ILJ 240 (ARB); Piron Recognition or Rejection 36; Ermine 1992 ILJ
19.
5 See s 64(2). See also FGWU v Design Contract Cleaners supra.
6 NUM v Lonmin Platinum 2014 ILJ 486 (LC).

644 Breach and termination of recognition agreement The refusal to recognise a trade union as a bargaining
agent or the withdrawal of such recognition entitles the said union to embark on strike action.1 Infringement of the
conditions of a recognition agreement, for instance the procedure which should be followed on retrenchment of
employees, may be unfair. 2 A recognition agreement is not terminated solely because the services of the
employees are terminated, but only in terms of the provisions of the agreement itself.3 If the recognition agreement
contains no provisions in this regard, it can be terminated by giving reasonable notice to the other party.4
Application may also be made to the Commission for Conciliation, Mediation and Arbitration to withdraw the
organisational rights of a trade union on account of the fact that the union is no longer representative.5
1 See Labour Relations Act 66 of 1995s 64(2) and also FGWU v Design Contract Cleaners 1994 ILJ 1078
(IC); Mxalisa v Dominium Uranium 2013 ILJ 2052 (LC).
2 Jacob v Prebuilt Products 1988 ILJ 1100 (IC); NUM v Gold Fields 1989 ILJ 86 (IC); NUM v East Rand
Gold & Uranium Co 1991 ILJ 1221 (A); FAWU v Ceres Fruit Juices 1996 ILJ 1063 (C). In case of bad
faith bargaining, which results in an impasse between the parties, the innocent party is entitled to
suspend the terms of the agreement: NUM v East Rand Gold & Uranium Co supra. See also FAWU v
Pietersburg Milling Co 1995 9 BLLR 20 (LAC) (upholding of a recognition agreement in conflict with the
Act).
3 NUMSA v Metkor Industries 1990 ILJ 1116 (IC); Allied Media Distributors v MWASA 1991 ILJ 911 (ARB);
SACSAWU v Masonic Haven 1996 3 BLLR 358 (IC) (union's constitution not covering employer's
industry); Timms v Fidelity Guards Holdings 1999 ILJ 1634 (CCMA); Ermine 1992 ILJ 19. Similarly the
liquidation of the employer does not terminate a recognition agreement with a trade union: Waverley
Blankets v CCMA 2000 ILJ 2738 (LC); Edgars Consolidated Stores v FCRAWU 2004 ILJ 1051 (LAC).
4 See AEUSA v Mondi Paper Co 1989 ILJ 521 (IC); SACCAWU v Interfare 1991 ILJ 1313 (IC); Timms v
Fidelity Guards Holdings supra.
5 See s 21(11). See also AEUSA v Mondi Paper Co supra; SACCAWU v Interfare supra; SACCAWU v
Woolworths 1998 ILJ 57 (LC) (derecognition of shop stewards); NPSU v National Negotiating Forum
1999 ILJ 1081 (LC).

645 Other collective agreements Other collective agreements, for example closed shop agreements,1 agency
shop agreements,2 bargaining council agreements,3 workplace forum agreements,4 and so forth are also of great
importance but, as indicated, are discussed elsewhere.
1 See pars 447­449 454 ante.
2 See par 468 ante.
3 See pars 532534 ante.
4 See pars 585595 ante.

Disputes Regarding Collective Agreements

646 General principles The Labour Relations Act 1 contains detailed provisions on the settlement of disputes
concerning collective agreements. Each collective agreement must provide for a procedure to resolve any dispute
concerning the interpretation or application of the agreement.2 The procedure must first require settlement through
conciliation and, if that is unsuccessful, by means of arbitration.3
If there is a dispute about the application and interpretation of the agreement, any party may refer the dispute
to the Commission for Conciliation, Mediation and Arbitration (CCMA) if the agreement does not provide for a
conciliation procedure.4 A copy of the referral to the CCMA must be served on the other parties.5 The CCMA must
attempt to settle the dispute through conciliation;6 if the CCMA is unsuccessful the dispute may be resolved by
arbitration.7 An arbitration award may be taken on review to the Labour Court by any party bound by the award.8
An award will prescribe after three years.9
1 66 of 1995s 24.
2 S 24(1). See FAWU v Clover SA 2000 ILJ 1443 (CCMA); NUMSA v Exacto Craft 2000 ILJ 2760 (CCMA);
BCFMI v Manisanker 2001 ILJ 1431 (CCMA); Oelofsen v SAPS 2006 ILJ 639 (BCA); Swart v Department
of Correctional Services 2006 ILJ 653 (BCA); PSASA v Minister of Safety & Security 2009 ILJ 1631
(LC).
3 S 24(1). See SAMIEA v NUMSA 1997 10 BLLR 1157 (LAC); SACCAWU v Woolworths 1998 ILJ 57 (LC).
 See also Rainbow Chicken Farms v FAWU 1997 8 BLLR 1081 (LC); Botshelo Water Board v SALGBC
2007 ILJ 2259 (LC); HOSPTUSA v Department of Health KZN 2016 ILJ 1839 (LAC).
4 S 24(2). S e e SACCAWU v Crown Furnishers 1998 ILJ 663 (CCMA) (any party bound by agreement
entitled to implement conciliation procedures); MIBC v COFESA 2001 ILJ 556 (BCA); Botha v Blue Bulls
Co 2009 ILJ 544 (LC).
5 S 24(3).
6 S 24(4). See also PSA v SARS 2009 ILJ 3014 (CCMA).
7 S 24(5). See also Juta v Western Cape Education Department 1997 7 BLLR 926 (CCMA); SACCAWU v
Woolworths supra; Reactor Clothing v Robertson 1998 3 BLLR 315 (LC); DISA v Denel Informatics
1999 I L J 137 (LC); Ngcobo v KwaZulu­Natal Health Services 1999 I L J 893 (LC); Northern Cape
Provincial Administration v Commissioner Hambidge 1999 ILJ 1910 (LC); PSA v SARS supra; Moir v
Autopax Passenger Services 2014 ILJ 3199 (LC).
8 S 24(7). See also North East Cape Forests v SAAPAWU 1997 ILJ 971 (LAC); SAMIEA v NUMSA supra;
Ceramic Industries v NACBAWU 1998 11 BLLR 1120 (LC) (collective agreement would not be made an
order of the court); NUCW v Oranje Mynbou & Vervoer Maatskappy Bpk 2000 2 BLLR 196 (LC)
(enforcement of agreement); Fredericks v MEC for Education & Training Eastern Cape Province 2002 2
BLLR 119 (CC); 2002 2 BCLR 113 (CC); 2002 ILJ 81 (CC).
9 NBC for Road Freight & Logistics Industry v Virtual Logistics 2016 ILJ 1496 (BCA).

EMPLOYMENT EQUITY ACT

INTRODUCTION

647 Background Through a sophisticated system of goal setting, the Employment Equity Act 1 seeks to redress
the inequalities caused by former discriminatory practices in the workplace2 and to achieve a diverse workforce
representative of the population. Discriminatory job reservation started in South Africa as early as 1904,3 and the
Employment Equity Act must be seen against this background.
1 55 of 1998.
2 See par 650 post.
3 See Tvl Ord 17 of 1904; Jones and Griffiths Labour Legislation in South Africa 5.

648 The Constitution The basis for the promulgation of the Employment Equity Act 1 is to be found in the
Constitution,2 which states that South Africa is one sovereign democratic state founded on human dignity, the
achievement of equality, the advancement of human rights and freedoms, non­racism and non­sexism3 and the rule
of law.
These values are enshrined in the bill of rights, which affirms the values of dignity, equality and freedom. Equality
includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative
and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair
discrimination may be taken.4 The limitation provision in the Constitution5 provides that the rights in the bill of
rights may be limited if it is fair and justifiable in an open and democratic society based on human dignity, equality
and freedom.
1 55 of 1998.
2 Constitution of the Republic of SA 108 of 1996.
3 S 1(a) (b). See Van Eck 1999 De Jure 160; Director­General Department of Labour v Comair 2009 ILJ
2711 (LC) pars 6­15.
4 S 9(2).
5 S 36.

649 Labour Relations Act The Labour Relations Act 1 states that a dismissal is automatically unfair if the reason
for the dismissal is unfair discrimination, either directly or indirectly, against the employee on arbitrary grounds,
including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
However, an employer is not prevented from dismissing an employee if such dismissal is based on:
(a) the inherent requirements of the particular job; or
(b) the age of the employee if the employee has reached the agreed retirement age.2
A number of unfair discrimination cases were dealt with in terms of the provisions of the Labour Relations Act.3
1 66 of 1995: s 187(1)(f ). See Vol 24(2)(3ed) par 64 post.
2 S 187(2).
3 Ss 185(b) 186(2). Most of the cases deal with promotion on a racial basis to restore racial
representation in the workplace. See, eg, Siswana v SA Police Services 2005 ILJ 20 (BCA); Lotter v SA
Police Services 2005 I L J 578 (BCA); X v S A B r e w e r i e s 2006 I L J 4 3 5 ( A R B ) a n d Department of
Correctional Services v POPCRU 2011 ILJ 2629 (LAC).

650 The Employment Equity Act Various reasons were advanced in the explanatory memorandum to the
Employment Equity Bill1 for the need for legislation promoting employment equity:
(a) apartheid has left behind a legacy of inequality;
(b) the labour market shows a disparity in the distribution of jobs, occupations and incomes; and
 (c) the disparities are reinforced by social practices, such as the lack of education, housing, medical care and
transport.
The Employment Equity Act was drafted to advance those groups that had been disadvantaged as a result of
past discriminatory laws and practices. It is not the intention of the legislature to seek retribution for past
injustices.2 The Employment Equity Act was assented to on 12 October 1998 and most of the sections became
operative on 9 August 1999.3 The Act was amended in 2014.4
1 Published on 1 December 1997 in Government Gazette 18481. It is clear from the explanatory
memorandum that the discrimination against which the Employment Equity Act 55 of 1998 is aimed is
discrimination between groups, although it is individuals who will in fact benefit from the application of
the Act.
2 The preamble to the Employment Equity Act reads as follows: "Recognising ­ that as a result of
apartheid and other discriminatory laws and practices, there are disparities in employment, occupation
and income within the national labour market; and that those disparities create such pronounced
disadvantages for certain categories of people that they cannot be redressed simply by repealing
discriminatory laws. Therefore, in order to ­ promote the constitutional right of equality and the
exercise of true democracy; eliminate unfair discrimination in employment; ensure the implementation
of employment equity to redress the effects of discrimination; achieve a diverse workforce broadly
representative of our people; promote economic development and efficiency in the workforce; and
give effect to the obligations of the Republic as a member of the international labour organisation", this
law is enacted.
3 Proc R83, Government Gazette 20339, 6 August 1999. In terms of s 65 the President determined that
ch 2 and ss 1­4 34 47(2) 57 59­64 and Schs 2 3 became operative on 9 August 1999. The balance of
the Act came into operation on 1 December 1999: Proc R115, Government Gazette 20626, 23
November 1999.
4 See the Employment Equity Amendment Act 47 of 2013 published on 16 January 2014 in Government
Gazette 37238 for general information. The amended Employment Equity Act took effect on 1 August
2014.

651 Purpose of Employment Equity Act The purpose of the Employment Equity Act 1 is to achieve equity in the
workplace2 by:
(a) promoting equal opportunity and fair treatment in employment through the elimination of unfair
discrimination;3 and
(b) implementing affirmative action measures to redress the disadvantages in employment experienced by
designated groups, in order to ensure their equitable representation in all occupational levels in the workforce.4
1 55 of 1998: s 2.
2 Although the Act does not contain a definition of "workplace", reg 3(4) of the regulations published in
Government Gazette 20626, 23 November 1999, defines "workplace" as the place or places where the
employees of an employer work. (It may even be in the open if the worker works there.) If an
employer carries on or conducts two or more operations that are independent of one another by
reason of their size, function or organisation, the place or places where employees work in connection
with each independent operation constitute the workplace for that operation: Brassey 1998 ILJ 1359.
The Constitutional Court dealt with the question of what constitutes a workplace in AMCU v Chamber of
Mines of SA 2017 6 BCLR 700 (CC); 2017 ILJ 831 (CC) pars 24­39.
3 S 2(a). See par 652 post.
4 S 2(b). See, in general, Rycroft 1999 ILJ 1411. See also Ngcuaitobi 2007 ILJ 1436.

PROHIBITION OF UNFAIR DISCRIMINATION

Introduction

652 General The Constitution1 provides that no person, including the state, may unfairly discriminate directly or
indirectly against any person on grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 2 Discrimination on
one or more of the grounds listed is unfair unless it is established that the discrimination is fair.3
The term "discrimination" is defined as follows in an International Labour Organisation Convention:4
"Article 1(1): For the purpose of this Convention the term 'discrimination' includes:
(a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political
opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation;
(b) Such other distinction, exclusion or preference which has the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation as may be determined by the Member
concerned after consultation with representative employers' and workers' organisations, where such exist,
and with other appropriate bodies.
(2) Any distinction, exclusion or preference in respect of a particular job based on the inherent
requirements thereof shall not be deemed to be discrimination.
(3) For the purpose of this Convention the terms 'employment' and 'occupation' include access to
vocational training, access to employment and to particular occupations, and terms and conditions of
employment.
Article 2: Each Member for which this Convention is in force undertakes to declare and pursue a national
 policy designed to promote, by methods appropriate to national conditions and practice, equality of
opportunity and treatment in respect of employment and occupation, with a view to eliminating any
discrimination in respect thereof."
1 Constitution of the Republic of SA 108 of 1996.
2 S 9(3) (4).
3 S 9(5).
4 ILO Convention Concerning Discrimination in Respect of Employment and Occupation 111 of 1958.

ELIMINATION OF UNFAIR DISCRIMINATION

653 General principles Every employer must take steps to promote equal opportunities in the workplace1 by
eliminating unfair discrimination2 in any employment policy or practice.3 There is thus a positive obligation on
employers to take steps to promote equal opportunity. An employer cannot wait until he or she receives a complaint
before he or she takes steps to eliminate unfair discrimination.
1 See pars 648 ante 654 post.
2 In order to determine whether discrimination took place, the matter must be viewed from the
perspective of the complainant. How did the complainant experience the facts that resulted in a
discrimination claim? This is, however, an objective test. How would a reasonable person in the
position of the complainant have reacted under the circumstances? In order to determine whether an
e­mail sent to a person is discriminatory or not, the intention of the sender is not important. How the
receiver understood the e­mail is important. See SATAWU v Transnet Freight Rail 2009 ILJ 1692 (ARB)
1704 (par 44). In this case, it was found that a failure to be "politically correct" in itself is not unfair
discrimination: par 46.
3 Employment Equity Act 55 of 1998s 5. See par 669 post for the meaning of "employment policy or
practice". See also reg 3.4; Basson 1999 SAMLJ 240. "Section 5 of the Employment Equity Act 55 of
1998 places an obligation on the part of every employer to take steps to promote equal opportunity in
the workplace by eliminating unfair discrimination in any employment policy or practice. The section
does not place an obligation to eliminate discrimination in general, which loosely defined might mean
any form of discrimination." See Mothoa v SA Police Service 2007 ILJ 2019 (LC) 2028 (par 18).

PROHIBITION OF UNFAIR DISCRIMINATION

654 General principles No person may unfairly1 discriminate,2 directly or indirectly, against an employee in any
employment policy or practice3 on one or more grounds,4 including:
(i) race,5 gender,6 sex, sexual orientation;7
(ii) pregnancy, marital status, family responsibility;8
(iii) ethnic or social origin, colour;
(iv) age,9 disability,10 HIV status;11
(v) religion, conscience, belief,12 political opinion, culture, language and birth; or
(vi) any other arbitrary ground.13
Affirmative action14 based on race, gender and ability discrimination, is not considered unfair discrimination,
because it aims to address the inequities of the past and is consequently permissible. Discriminating between
various posts will in principle not be unfair if the discrimination is scientifically based on measurements found in
industry.15 "Unfair", in this context, means the impact on the person discriminated against. Relevant considerations
in this regard include the position in society of the person discriminated against, the purpose sought to be achieved
by the discrimination, the extent to which the rights or interest of the victim of discrimination have been affected
and whether discrimination has impaired the human dignity of the victim.16
"Discrimination" principally means treating persons or categories of persons differently in a way which impairs
their fundamental dignity as human beings, who are inherently equal in dignity.17 If discrimination is based on
specific grounds, such as race, sexual orientation, and so forth, unfairness will be presumed. Discrimination was
defined as follows:18 "Direct race discrimination occurs where a person is treated differently because of his race or
on the basis of some characteristic specific to members of that race. It is incorrect to equate discrimination with
actual prejudice. Discrimination occurs when people are not treated as individuals. To discriminate is to assign to
them characteristics which are generalised assumptions about groups of people . . . It is not necessary to show an
intention to discriminate for direct discrimination to be established. Intention or motive of the respondent may
however be relevant to what remedy the court would impose . . . Whether the discrimination is unfair is a separate
enquiry . . ."19
The principles behind the concept of unfair discrimination were summarised as follows:20 "The test of unfairness
under these provisions concentrates upon the nature and extent of the limitation of the respondent's rights; the
impact of the discrimination on the complainants; the social position of the complainants; whether the discrimination
impairs the dignity of the complainants; whether the discrimination has a legitimate purpose; and whether
reasonable steps have been taken to accommodate the diversity sought to be advanced and protected by the
principle of non­discrimination."
An allegation that an employer unfairly discriminated against an employee on the grounds of race involves at
least three questions: Whether the employer differentiated by treating the employee less favourably than other
employees; whether that discrimination is based on race and whether it was unfair for the employer to discriminate
against the employee.21 The court set out when discrimination had to be shown and when not:22 "The respondent
claims that the applicant has failed to demonstrate differential treatment. The respondent is claiming that the
applicant has failed to show that she has been treated differently to other employees. I agree that in claims such
as claims for unfair discrimination between men and women in the payment of remuneration, it would be necessary
for the applicant to make out a case that men in the same job grades were paid more than women. In such cases
the need to establish the existence of comparators to show the differentiation in treatment is obviously essential to
the claim. However where a woman claims to have been subject to sexual harassment, it is not necessary for her to
demonstrate that men are not subject to the same harassment in order to succeed with a claim of unfair
discrimination. I believe the same principle applies in this instance. Accordingly, it is not necessary for the applicant
to have made out a case that other employees who refused to comply with the regulations because of the dictates
of their conscience were not prejudiced in order to make out a claim of unfair discrimination on the basis of
conscience."
If discrimination is alleged on an unspecified ground, unfairness will have to be established by the complainant.
The test for unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or
her situation. In this regard, there are two questions: first, is there discrimination and, second, is the discrimination
unfair?23
If discrimination is alleged on a ground not specified in section 6(1), the employee will have to define a group or
a class of persons and show that the difference is worthy of protection. An employee who relies on an unlisted
ground as being discriminatory must establish the difference, show that it defines a group or a class of persons and
that the difference is worthy of protection. To warrant protection, the applicant must show that the conduct
complained of impacts on him or her as a class or group of vulnerable persons, such as persons with disabilities or
family responsibility, or that the conduct is inherently pejorative as a racist or sexist utterance might be.24
1 Employment Equity Act 55 of 1998s 6(1). See fn 2 infra. See also Kadiaka v Amalgamated Beverage
Industries 1999 ILJ 373 (LC) 380.
2 See Prinsloo v Van der Linde 1997 6 BCLR 759 (CC); 1997 3 SA 1012 (CC).
3 See par 669 post. If discrimination is alleged on a ground not specified in s 6(1), the applicant will
have to define a group or a class of persons and show that the difference is worthy of protection. See
Stojce v University of KwaZulu­Natal 2006 ILJ 2696 (LC).
4 The words "one or more grounds, including" indicate that there may be other grounds than those set
out in s 6(1) on which an employer may not discriminate. In Stojce v University of KwaZulu­Natal
supra 2701 (par 27) the court recognised that there could be other grounds and set out the
requirements that an employee had to prove to be able to rely on an unspecified ground: "An
employee who relies on an unlisted ground as being discriminatory must establish the difference, show
that it defines a group or a class of persons and that the difference is worthy of protection. To warrant
protection, the applicant must show that the conduct complained of impacts on him as a class or group
of vulnerable persons, such as persons with disabilities or family responsibility, or that the conduct is
inherently pejorative as a racist or sexist utterance might be." In Qwabe v Robertsons Foods 2007 ILJ
1356 (CCMA) the employees stated that they were unfairly discriminated against "based on racial
and/or social origin and/or other arbitrary grounds": casual worker working overtime in a pool of
casual workers. Although the Commission for Conciliation, Mediation and Arbitration found that the
employees were not working for the employer, it indicated that in its view differentiation did not
amount to discrimination unless it was established that 2 similarly circumstanced individuals were
treated differently the onus being on the employees to prove discrimination.
5 PSA v SAPS 2007 ILJ 158 (LC) 169: "Where two applicants compete for a position, the mere fact that
the one is white and the other coloured, and the white person gets appointed, can certainly not amount
to differentiation, nor per se, to discrimination. Clearly, what is required is evidence of conduct which
constitutes a difference . . ." There should be an objective reason for discrimination. The discrimination
should not be arbitrary: Karriem v SAPS supra 179. SACWU v NCP Chlorchem 2007 ILJ 1308 (LC) 1312
(par 12): "I have no hesitation in concluding that to accuse a person of being a racist or to say to a
person that he is displaying a racist attitude is racially offensive. I am equally satisfied that these
words, objectively viewed, can be regarded as insulting and abusive. I am also satisfied that such
language could be described as 'racial'." See also Reynhardt v University of SA 2008 ILJ 725 (LC);
University of SA v Reynhardt 2010 12 BLLR 1272 (LAC); 2010 ILJ 2368 (LAC); Solidarity v SAPS 2014
ILJ 418 (SCA); 2014 ILJ 2981 (CC). Disparity of treatment between persons of different races cannot
automatically be regarded as discrimination based on race. See Raol Investments v Madlala 2008 ILJ
267 (SCA). In this case, it was factually established that the disparity of treatment was not based on
race at all. Therefore, it cannot automatically be ascribed to race once disparity was clear. See
Vodacom v Byrne 2012 ILJ 2705 (LC). When an employee was advised by his manager that he faced
disciplinary charges, the employee called a meeting of his subordinates to solicit their support, and
allegedly said that his manager was a "bloody racist who hates all blacks". The employee was
dismissed and he took his dismissal on review to the Labour Court. In order to show racism, it should
be factually proved that a person is a racist. See also Council of Mining Unions v Chamber of Mines of
SA 1991 ILJ 796 (LAC); Labour Relations Act 66 of 1995s 187(1)(f ). See also Solidarity v Department
of Correctional Services 2016 ILJ 1995 (CC).
6 A dress code that says women could come to work with long hair, but men are not allowed to do the
same is unfair discrimination based on gender. See POPCRU v Department of Correctional Services
2010 ILJ 2433 (LC) 2446 (pars 234­239); 2011 ILJ 2629 (LAC); 2013 ILJ 1375 (SCA); Solidarity v SAPS
2014 I L J 416 (SCA); 2014 I L J 2891 (CC) (female officer). A female employee claimed unfair
discrimination on the basis that she was paid less than male colleagues: SAMWU v Nelson Mandela Bay
Municipality 2016 ILJ 1203. In Makoti v Jesuit Refugee Service SA 2012 ILJ 1706 (LC) the dismissal of a
female employee after she rebuffed unwanted sexual advances was found to be unfair discrimination.
7 I n MIA v State Information Technology Agency 2015 ILJ 1905 (LC) the court found the employer's
application of its maternity leave policy to constitute unfair discrimination as it failed to recognise the
status of parties to a civil union, same sex marriage and parents who had entered into a surrogacy
agreement.
8 See par 670 post. In CWU v Petroleum Oil and Gas Co­operative of SA 2007 ILJ 627 (LC) employees
with family responsibilities enjoyed higher salaries than their colleagues at the same level, but without
family responsibilities. The higher salaries were not disputed but the unforeseen consequences were.
 Because employees with family responsibilities earned more, their car benefits, retirement funding and
group life insurance were also better. This, according to the trade union, was discriminatory. After
considering the cases in light of the Constitution of the Republic of SA 108 of 1996, and the UN
Declaration of Human Rights and the European Social Charter 1996, Pillay J came to the following
conclusion (636 (par 50)): "In the context of this case, the result is that special measures are applied
to workers with family responsibilities to adjust for the hardships of having such responsibilities.
Without affirmation of their special status, there can be no equality amongst the workforce" and (637
(par 52)): "The second respondent pays more to employees with dependants, not as a reward for
performance. Nor is it an accolade for special achievement. It is a legal and moral response to the
social needs of a vulnerable group of employees." The vulnerability lies in the fact that those
employees have more expenses because they have family responsibility. The court made a social
judgment and not a legal one. Unlike race, that is a permanent feature, family responsibility may
change from time to time which makes his judgment controversial.
9 Retirement age is what was agreed to between the parties or it is the normal age for retirement for
persons in that capacity. This is determined by what is normal or customary in the specific industry or
profession. In deciding whether the employer had discriminated against an employee on the basis of
age, the question was not how the employer treated other employees of the same age, but the
"comparator", in so far as one may be necessary at all, would be any other employee of any age, in
other words, was the sole reason for treating the employee differently to any other employee her age?
If so, discrimination is established on a listed ground. See HOSPERSA v SA Nursing Council 2006 ILJ
1143 (LC) 1148 (par 25). In this case, there was an agreement that Venter's retirement age would be
70. To unilaterally change that and not other employees' retirement age, whether that was 60 or not
was discriminatory. See also Kirsten v Southern Cross Manufacturing Co 2006 ILJ 2471 (CCMA) and
Evans v Japanese School of Johannesburg 2006 ILJ 2607 (LC) where the same principles were applied.
In SAA v Jansen van Vuuren 2014 ILJ 2774 (LAC), airline pilots over 60 were paid less than younger
pilots.
10 See Employment Equity Act 55 of 1998s 1 and also par 668 post. The Code of Good Practice on the
Employment of People with Disabilities (par 699 post), inter alia, provides in item 6(1) that employers
should reasonably accommodate the needs of people with disabilities. The aim of the accommodation
is to reduce the impact of the impairment of the person's capacity to fulfil the essential functions of a
job. See also Van Jaarsveld 2002 SAMLJ 357. Par 5 of the Code stipulates that a person who satisfies
the following criteria is regarded as a person with disabilities, namely a person who has a physical or
mental impairment which is long term or recurring and which substantially limits their prospects of
entry into, or advancement in, employment. The concepts "impairment", "long term" and "substantially
limiting" are further defined in the Code. In Standard Bank of SA v CCMA 2008 I L J 1239 (LC),
especially 1256 et seq the court dealt with automatically unfair dismissals, but it also discussed the
obligations of an employer in respect of disabled employees, in order not to discriminate. In Wylie v
Standard Executors & Trustees 2 0 0 6 I L J 2210 (CCMA) it was indicated that matters such as
restructuring the job so that non­essential functions could be re­assigned; adjusting working time and
leave, following an incapacity management program and employing the services of an occupational
therapist should be considered. In Willemse v Patelia 2007 ILJ 428 (LC) 447 (par 46) the court said
that it was not necessary that the disability had to impair a person's work. A person in a wheelchair is
a person with a disability and should be considered for any position for which that person may have
the necessary qualifications, skills, etc, as a "disabled" person. The meaning of "people with
disabilities" was considered in IMATU v City of Cape Town 2005 ILJ 1404 (LC). In Smit v Kit Kat Group
2017 ILJ 483 (LC) (employee disfigured) the court found unfair discrimination where the employer
equated disability with incapacity.
11 See Rycroft and Louw 2000 ILJ 856; Hoffmann v SA Airways 2000 ILJ 2357 (CC). See also Allpass v
Mooikloof Estates 2011 ILJ 1637 (LC).
12 I n Motaung v Department of Education 2013 I L J 1199 (LC) the court explained the concepts of
"conscience" and "belief ": "I have some difficulty in identifying a belief in the importance of strict
adherence to regulations as being the kind of belief that was intended to be protected by the
prohibitions against unfair discrimination. If one is to distinguish between the conscience and belief, it
seems that the latter involves some attachment and commitment to the truth of some fundamental
proposition or set of propositions, that also entail certain moral precepts, whereas conscience does not
seem to necessarily entail adoption of a belief in certain truths, but does entail a deeply held conviction
about what is morally right or wrong." Religious belief was considered in Mohele v Fidelity Security
Services 2016 ILJ 1935 (CCMA) where a security guard and member of the Shembe Church wearing a
beard was instructed to shave it off. A workplace rule to be clean­shaven constituted a limitation
to the employee's rights to religious freedom and was discriminatory. In Lewis v Media 24 2010 ILJ
2416 (LC) the court found no unfair discrimination where a Jewish male employee was compelled to
work on Friday nights.
13 S 6(1). See also par 657 post. Du Toit 2006 ILJ 1311 explains the development of the concept of
"unfair discrimination". It is possible to institute a claim for damages if s 6 is contravened. A claim in
terms of s 6 can be brought simultaneously with a dispute where the employee avers that she was
discriminated against, based on her age: Bedderson v Sparrow Schools Education Trust 2010 ILJ 1325
(LC). In order to institute a claim for damages a claimant is obliged to establish the differentiation that
forms the basis of the claim and to establish a link between that differentiation and one of the listed
grounds in s 6(1) of the Act, or an unlisted ground in circumstances where the claimant is able to show
that the ground relied upon has the potential to impair the fundamental dignity of persons as human
beings or to affect them adversely in a comparably serious manner. See Mangena v Fila Spa 2010 ILJ
662 (LC). In this case, the principles applicable to equal pay claims are fully set out. An essential
element of such a claim was that the work performed by the comparator should be equal. This did not
only mean that the work had to be identical or interchangeable; it was sufficient that the work was
similar in nature where any differences were infrequent or of negligible significance in relation to the
work as a whole.
14 See par 666 post.
15 In terms of the International Labour Organisation guidelines collective bargaining is not a justification
for discriminating on any basis. In Heynsen v Armstrong Hydraulics 2000 ILJ 2458 (LC) 2462F the
court said: "In my view, such a rule would be of more compelling value in an ideal society. This should
 not be rigidly applied in South African labour relations."
16 See Hoffman v SA Airways 2000 11 BCLR 1211 (CC); 2000 12 BLLR 1365 (CC); 2001 1 SA 1 (CC).
17 See Prinsloo v Van der Linde 1997 6 BCLR 759 (CC); 1997 3 SA 1012 (CC).
18 Leonard Dingler Employee Representative Council v Leonard Dingler 1998 ILJ 285 (LC) 289.
19 See also Department of Correctional Services v POPCRU 2011 ILJ 2629 (LAC).
20 Department of Correctional Services v POPCRU s u p r a p a r 3 7 . S e e a l s o Germishuys v Upington
Municipality 2000 I L J 2439 (LC) 2455; Louw v Golden Arrow Bus Services 2000 I L J 188 (LC);
Swanepoel v Western Region District Council 1998 BLLR 987 (SE) and TGWU v Bayete Security
Holdings 1999 ILJ 1117 (LC).
21 Mafomane v Rustenburg Platinum Mines 2003 BLLR 999 (LC).
22 In Motaung v Department of Education 2013 ILJ 1199 (LC).
23 S e e Harksen v Lane 1997 11 BCLR 1489 (CC); 1 9 9 8 1 S A 3 0 0 ( C C ) p a r 5 3 a n d Matjhabeng
Municipality v Mothupi 2011 ILJ 2154 (LC).
24 Stoje v University of KwaZulu­Natal supra par 27.

655 Indirect discrimination Indirect discrimination is intended to capture practices that are fair in form but
discriminatory in operation. Indirect discrimination is intended to reflect the concept of "disparate impact"
discrimination recognised by the US Supreme Court in its famous decision in Griggs v Duke Power Co.1 In this case,
black employees claimed that the employer's practice of requiring a high school diploma or success in an IQ test as
a condition of employment in particular jobs discriminated against them on the basis of race, as a disproportionate
number of black people were excluded or rendered ineligible as a consequence. The Supreme Court found that
neither the high school completion requirement nor the general intelligence test had any relevance or demonstrable
relationship to the successful performance of the jobs for which the requirements were used. Both requirements
were adopted on the employer's judgment that they generally would improve the quality of the workforce. The
Supreme Court held that good intent or the absence of discriminatory intent does not redeem employment
procedures or testing mechanisms that operate as "built­in headwinds" for minority groups and are unrelated to
measuring job capability.2
Distinctions made on the basis of seniority or experience could also be indirect discrimination in that it may be
argued that white people have had the opportunity to build seniority and gain experience while black people have
not.3
1 401 US 424 (1971).
2 See Gaibie 2011 ILJ 19 34. Advertising a position in a publication aimed at male readers could be seen
as indirect discrimination against women. Advertising a matric certificate as a prerequisite for a job if it
is not in fact necessary could be seen as indirect discrimination, because a greater percentage of white
persons matriculate compared to blacks. See, eg, Griggs v Duke Power Co 401 IS 424 (1978) 431.
3 See Harksen v Lane 1997 11 BCLR 1489 (CC); 1998 1 SA 300 (CC) and Lagadien v University of Cape
Town 2000 ILJ 2469 (LC) 2476.

656 Onus The onus is on the employee to prove the discrimination he or she alleged.1 Once an employee proves
discrimination, the onus shifts to the employer to prove that such discrimination is nevertheless fair.2 If an employer
alleges that discrimination was fair, it must prove that it was indeed fair. Relevant considerations in this regard
include the position of the victim of the discrimination in society, the purpose sought to be achieved by the
discrimination, the extent to which rights or interests of the victim of the discrimination have been affected, whether
the discrimination has impaired the human dignity of the victim, and whether less restrictive means are available to
achieve the purpose of the discrimination.
The mere differentiation in pay between employees who do similar work or work of equal value does not, in
itself, mean that an act of discrimination is being perpetrated. It is only when such differentiation is based on or
linked to an unacceptable ground that it becomes discrimination within its pejorative meaning.3 Where a link is
shown to exist between differentiation on one or more of the above listed grounds, discrimination will have been
established. If differentiation is alleged on an unlisted ground, the employee will bear the onus of proving the
differentiation and that it amounts to discrimination.4
When discrimination has been shown, a presumption of unfairness has been created, which the employer bears
the onus to rebut. Justification involves the careful consideration of the context within which the dispute arose.5
The Labour Court has concurrent jurisdiction with the Equality Court if unfair discrimination takes place in the
workplace.6
1 See Ntai v SA Breweries 2001 ILJ 214 (LC) 217E; Chizunza v MTN 2008 ILJ 2919 (LC) and Matjhabeng
Municipality v Mothupi 2011 ILJ 2154 (LC).
2 Ntai v SA Breweries supra 2171; POPCRU v Department of Correctional Services 2013 ILJ 1375 (SCA)
par 21.
3 Ntai v SA Breweries supra 219D­E; Chzunza v MTN 2008 ILJ 2919 (LC) 2928 (par 17). The employer
also has the right to raise a defence of inherent requirement of the job in defence. The raising of such
a defence by the employer cannot be elevated to the level of an onus to prove that such inherent
requirement of the job is not unfair. See Matjhabeng Municipality v Mothupi 2011 ILJ 2154 (LC) par 41.
According to Middleton v Industrial Chemical Carriers 2001 ILJ 472 (LC) implicit in the notion of unfair
discrimination is the requirement of disadvantage and prejudice. See also IMATU v Greater Louis
Trichardt Local Council 2000 ILJ 1119 (LC) 1125H­I; McInnes v Technikon Natal 2000 6 BLLR 701 (LC);
2000 ILJ 1138 (LC) 1146 et seq. Pay differentiation was found not to be discriminatory in Mzobe v
Fencerite 2016 ILJ 1767 (CCMA); Pioneer Foods v Workers Against Regression 2016 ILJ 2872 (LC) and
Govender v Umgungundlovu District Municipality 2016 7 ILJ 724 (CCMA).
4 Chizunza v MTN supra. See also fn 3 supra.
5 See Dupper 2000 ILJ 747. See also McPherson v University of KwaZulu Natal 2008 ILJ 674 (LC).
6 Strydom v Chiloane 2008 ILJ 2008 607 (T). The Equality Court operates in terms of the Promotion of
 Equality and Prevention of Unfair Discrimination Act 4 of 2000. See also par 714 post for the remedies
available in the event of unfair discrimination.

657 Permissible or fair discrimination It is not unfair to discriminate:1

(a) by taking affirmative action measures consistent with the purpose of the Employment Equity Act;2 or
(b) by distinguishing, excluding or preferring any person on the basis of an inherent requirement of a job;3 or
(c) if it is based on age when the employee has reached the retirement age.4
1 Employment Equity Act 55 of 1998s 6(2). See also the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000, which contains in ss 13 and 14 similar provisions as the Employment
Equity Act 55 of 1998. The latter is applicable to employees only and the first is applied in all other
instances where the Employment Equity Act is not applicable. The Labour Court has jurisdiction where
discrimination takes place in the workplace. See par 714 post. In Coetzer v Minister of Safety &
Security 2003 ILJ 163 (LC) the court was of the view that s 6(2) must not only be adjudicated within
the compass of the section, but the state as employer had to also show that the affirmative action
measures were in harmony with the Constitution of the Republic of SA 108 of 1996 s 205, because the
interpretation of the Employment Equity Act 55 of 1998s 6 had to enhance the values enshrined in the
Constitution. In FAGWUSA v Hibiscus Coast Municipality 2003 ILJ 1976 (LC) the court found that, if a
comparison of the relative competence qualifications, suitability and experience of one person and
another is made and due consideration has been given to employment equity considerations, the
employer may elect the best person for the job.
2 S 6(2)(a). See pars 651653 ante. An employer cannot implement any measures under affirmative
action when no implementation plan exists. In University of SA v Reynhardt 2010 12 BLLR 1272 (LAC);
2010 ILJ 2368 (LAC) the Labour Appeal Court held that an employment equity plan was a measure
that provided the achievement of equality to reflect the demographics of South Africa. Where the
equity ratio as set out in the employment equity plan was reached, the remedial measures were no
longer necessary. The court found that the university unfairly discriminated on the basis of race where
a superior candidate was not appointed and the inferior candidate was appointed, in compliance with
the employment equity plan where the equity targets were met. There was no other justification for
the appointment: PSA v Minister of Safety & Security 2004 ILJ 2373 (LC) 2375H. See Solidarity v SAPS
2010 ILJ 742 (LC); 2013 ILJ 590 (LAC) and Solidarity v Department of Correctional Services 2012 BLLR
1163 (LC). However, the matter was finally decided by the Constitutional Court in SAPS v Solidarity
2014 35 ILJ 2981 (CC). The court described the mission of the Act and the permissible character of
affirmative action measures. The court found that a core object of equity at the workplace was to
employ and retain persons who not only enhanced diversity, but who were also competent to deliver
goods and services to the public. It also prohibited policies or practices that would establish an
absolute barrier to employment or promotion of persons not from designated groups. The court held
that an employment equity plan had to be applied to advance its legitimate purpose, ie to promote and
achieve equity in the workplace and the implementation of corrective measures had to be rational. It is
not necessary for the equity plan to be approved by the Department of Labour before it is applied:
Stone v SA Police Service 2013 ILJ 1619 (LC). An arbitrary implementation of an equity plan is also
unfair: Baxter v National Commissioner: Correctional Services 2006 ILJ 1833 (LC). Once the targets
set in a plan has been achieved merit should be the norm: Willemse v Patelia 2007 ILJ 428 (LC). At
460 (par 87) the following is said: "When applying affirmative action, employers should consider a
variety of factors, of which past disadvantage is only one. Retention of skill and the efficient operation,
particularly of state organs, clearly also require consideration." See also University of SA v Reynhardt
2010 12 BLLR 1272 (LAC); 2010 ILJ 2368 (LAC) 2377 (par 30).
3 S 6(2)(b). See Lagadien v University of Cape Town 2000 ILJ 2469 (LC) 2477. In IMAWU v City of Cape
Town 2005 ILJ 1404 (LC) the court decided that requirements of safety legislation that an employer
had to adhere to had to be interpreted restrictively if it discriminated against a disabled person. The
court had to decide whether discrimination against a diabetic who wanted to join a fire­fighting unit was
justified. The employer placed a blanket debarment on all person with Type 1 diabetes to join the fire
brigade. Extensive medical evidence was heard. Not all fire­fighters were examined for diabetes. It
was common cause that fire­fighting was a hostile environment and that the employer had a legal
obligation to limit the risk. There are two stages of an investigation into unfair discrimination. First, it
had to be established if there had been unfair discrimination and then whether the unfair discrimination
was justifiable. At 1433 (par 83) the court dealt with unfair discrimination: "The impact of the
discrimination complained of on the complainant is generally the determining factor regarding the
unfairness of alleged discrimination. Factors which must be taken into account include: the position of
the complainants in society and whether they have suffered in the past from patterns of disadvantage;
the nature of the provision or power and the purpose sought to be achieved by it; the extent to which
the discrimination has affected the rights or interests of complainants and whether it has led to an
impairment of their fundamental human dignity or constitutes an impairment of a comparably serious
nature." The court then (par 99) dealt with justification of unfair discrimination: "Unfair discrimination
can be justifiable in our law. The justificatory stage is where the respondent seeks to justify otherwise
unfair discrimination. In human rights or constitutional law the notion of 'unfair' discrimination focuses
on the holder of the right, whereas justification focuses on the purposes, actions and reasons of the
government, and not the rights of the holder. Factors that would or could justify interference with the
right to equality are to be distinguished from those relevant to the enquiry about fairness. The one is
concerned with justification, possibly notwithstanding unfairness; the other is concerned with fairness
and with nothing else ­ President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC) at 36B­C."
See Dupper 2007 ILJ 747 for a discussion of this case and the concept of disability in general. In
Dlamini v Green Four Security 2006 ILJ 2098 (LC). The applicants were security guards who were
dismissed after refusing to shave their beards in terms of the employer's dress code which required all
of its employees to be neatly dressed and to have a clean­shaven facial appearance at all times. The
applicants claimed that they had been discriminated against on the basis of their religious beliefs. They
belonged to the Baptized Nazareth Group which, they alleged, did not allow them to shave or trim their
 beards. The court reasoned that if it was found that a requirement was an inherent requirement of a
post, the court should still consider a reasonable accommodation or modification of the rule, or an
exemption of the employees from it. This the court based on its understanding of s 36(1) o f t h e
Constitution. Gaibie 2011 ILJ 19 38 criticises this additional requirement: "As indicated earlier in this
article, the proportionality exercise in terms of s 36 of the Constitution is focused on the purposes,
actions, reasons, extent and necessity of the respondent's conduct, and a precondition to the
applicability of s 36(1) is that the limitation of a right must occur by way of a 'law of general
application'. Such a proportionality exercise is clearly absent in the EEA, and is inapplicable unless
there exists a limitation to a right by a 'law of general application'. Secondly, the defence is focused
primarily on the inherent requirements of the particular job and not on 'reasonable accommodation',
'modification' or 'exemptions' of any rules. Thirdly, and perhaps more importantly, the court fails to
articulate the basis of its misplaced import of the proportionality exercise in circumstances that clearly
require only the application of the defences set out in s 6(2)(a) and (b)." In Singh v Minister of Justice
& Constitutional Development 2013 ILJ 2807 (EqC) the court held that criteria used by the Magistrates'
Commission for shortlisting candidates for posts as entry level magistrates were unfairly discriminating
as a disability was not appropriately considered.
4 See Labour Relations Act 66 of 1995s 187(2)(b). An employer is entitled to unilaterally determine
retirement age: Karan v Randall 2012 ILJ 2579 (LAC).

SEXUAL HARASSMENT

658 Introduction and definition Harassment of an employee is a form of unfair discrimination and a dismissible
offence.1 In order to assist employers and employees in determining the scope and measures relating to sexual
harassment, the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace was
published by the Department of Labour. 2 Although sexual harassment may be committed against employees by
non­employees, the code does not confer jurisdiction in respect of non­employees on employers.3 Where the victim
of sexual harassment is a non­employee, he or she may lodge a grievance with the employer of the harasser.
"Sexual harassment" has been defined as unwanted conduct of a sexual nature. The unwanted nature of sexual
harassment distinguishes it from behaviour that is welcome and mutual.4 Sexual attention becomes sexual
harassment if:
(a) the behaviour is persisted in, although a single incident of harassment may constitute sexual harassment;
(b) the recipient has made it clear that the behaviour is considered offensive; and
(c) the perpetrator should have known that the behaviour would be regarded as unacceptable.5
Sexual harassment may include unwelcome physical, verbal or non­verbal conduct.6
1 Employment Equity Act 55 of 1998s 6(3) and see Vol 24(2)(3ed) par 104 post. The test for establishing
sexual harassment differs from other forms of discrimination in the sense that sexual harassment
incorporates subjective and objective elements. A complainant must subjectively feel harassed. To
objectively establish sexual harassment one has to take into consideration the social and work context,
the position of the complainant and of the perpetrator in the workforce and the surrounding
circumstances. See NUMSA v Market Toyota 2009 ILJ 458 (BCA) 468I. See Vol 24(2)(3ed) par 95 post
for the damages that the Labour Court awarded in respect of sexual harassment. In Taljaard v
Securicor 2003 ILJ 1167 (CCMA) and the cases referred to there, the concept "sexual harassment" is
discussed, although in a different context. To write offensive graffiti in respect of a co­employee on a
toilet wall represents sexual harassment: NUMSA v Duferco Steel Processing 2006 ILJ 1291 (ARB).
Repeated unwelcome remarks having a sexual undertone that has caused discomfort is sufficient to
constitute sexual harassment: Gaga v Anglo Platinum 2012 ILJ 329 (LAC) par 39. See also Grant et al
2017 ILJ 769.
2 G N 1 3 6 7 , Government Gazette 19049, 17 July 1998. The code was re­published in GN 1357,
Government Gazette 27865, 4 August 2005 and also published in 2005 ILJ 1941. The code enhances
the Employment Equity Act, as it contains guidelines on policies and procedures to eliminate sexual
harassment in the workplace.
3 In Ntsundu v Three Cities Inn on the Square 2016 ILJ 749 (CCMA) the employee was employed as a
room attendant in a hotel. The employee was sexually harassed by guests when cleaning the men's
toilets. It was found that the employer was not liable for the actions of guests.
4 See Halfkenny 1996 ILJ 213, 1994 LLNCR 1; Joubert 1996 DJ 197.
5 In FSAWU v Fedics 2015 ILJ 1078 (LC) the court found abusive and demeaning remarks to female
employees by a manager to constitute verbal sexual harassment.
6 Sexual harassment is not less serious if it is "part of the culture" of the transgressor: USAS v Transnet
Pipelines 2008 ILJ 1803 (ARB).

659 Duties of employers in preventing sexual harassment Employers should create and maintain a working
environment in which the dignity of employees is respected. A climate in the workplace should also be created and
maintained in which victims of sexual harassment will not feel that their grievances are ignored or trivialised, or in
which they fear reprisals.1
As a first step to dealing with the problem of sexual harassment, employers should adopt a sexual harassment
policy,2 which should be guided by the provisions of the Code.
Sexual harassment policies should at least state that:3
(a) sexual harassment is a form of unfair discrimination on the basis of sex, gender or sexual orientation;
(b) sexual harassment in the workplace will not be permitted or condoned;4
(c) complainants have the right to follow the procedures in the policy and the employer must take action;
 (d) it will be a disciplinary offence to victimise an employee who lodges a sexual harassment grievance in good
faith.
Employers must develop clear procedures to deal with sexual harassment, as well as other forms of unfair
discrimination.
1 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace par 6. In Piliso v
Old Mutual Life Assurance Co 2007 JOL 18897 (LC); 2007 I L J 897 (LC) the court found that an
employer had to actively investigate a complaint of sexual harassment.
2 Par 7. Management have the positive duty to implement the policy and take disciplinary action against
employees who do not comply with the policy. Policy statements on sexual harassment should be
communicated effectively to all employees: par 7.2.
3 Par 7.4.
4 See Intertech Systems v Sowter 1997 ILJ 689 (LAC) (compensation in respect of sexual harassment
complaints). In SABC v Grogan 2006 ILJ 1519 (LC) a male supervisor (54) was given a final written
warning for giving "baby kisses" and providing books described as "banal platitudes" to a woman co­
employee of 22.

660 Vicarious liability of employer Sexual harassment received the attention of the Supreme Court of Appeal.1 It
was found that an employer was vicariously liable for the actions of an employee who had sexually harassed a
secretary over several months. The court found that an employer's common­law duty to take reasonable care for
the safety of employees included the obligation to protect employees from psychological harm caused, for example,
by sexual harassment. The fact that there is legislation protecting employees or that there is a contract with the
employee does not detract from the common­law remedy to claim damages based on delict.2
1 Media 24 v Grobler 2005 ILJ 1007 (SCA). The case for Grobler was based on the employer's failure to
come to her assistance notwithstanding her requests and to act against the perpetrator notwithstanding
the fact that it was common knowledge that Grobler was sexually harassed. The employer:
(a) failed to seriously and expeditiously deal with allegations of sexual harassment;
(b) permitted a manager wide latitude in the latter's conduct towards subordinates;
(c) did not act against an employee who had a history of sexual harassment complaints against him;
(d) failed to create a climate in the workplace that sexual harassment complaints would not be
ignored;
(e) failed to protect Grobler; and
(f ) failed to prevent sexual harassment taking place when it could have been prevented.
Any of the above could be a failure to comply with the common­law duty of an employer. The liability
of employers in cases of sexual harassment was also considered in KO v Kusasa Commodities 352 CC
2016 ILJ 735 (CCMA); FSAWU v Fedics 2015 ILJ 1078 (LC); Moatshe v Legend Golf & Safari Resort
Operations 2015 ILJ 1111 (LC).
2 See also Le Roux 2004 IJL 1897; Whitcher 2004 ILJ 1907; Rycroft and Perumal 2004 ILJ 1153; Van
Jaarsveld in Nagel (ed) Gedenkbundel vir JMT Labuschagne 119.

OTHER CASES OF DISCRIMINATION

661 Medical testing Medical testing of an employee is prohibited unless legislation permits or requires the testing,
or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee
benefits or the inherent requirements of a job.1 Testing of an employee to determine that employee's HIV 2 status
is prohibited, unless such testing is determined to be justifiable by the Labour Court.3
If the Labour Court declares that the medical testing of an employee is justifiable, the court may make any order
that it considers appropriate in the circumstances, including imposing conditions relating to:
(a) the provision of counselling;
(b) the maintenance of confidentiality;
(c) the period during which the authorisation for any testing applies; and
(d) the categories of jobs or employees in respect of which the authorisation for testing applies.4
1 Employment Equity Act 55 of 1998s 7(1). To test a person who wants to become a fire fighter is
justifiable in the light of the risk the work entails for the employee and members of the public: IMAWU
v City of Cape Town 2005 ILJ 1404 (LC) 1426 (par 64).
2 See par 670 post.
3 S 7(2). The wording of this section was criticised in Joy Mining Machinery v NUM 2002 ILJ 391 (LC) in
that it did not make it clear that the Labour Court had jurisdiction. The court, however, accepted that it
had jurisdiction. The prohibition is there to protect the employee against testing by the employer, for
the employer to know the HIV status of the employee or not: Irvin & Johnson v TLFU 2003 ILJ 565
(LC). It was also decided in the latter case that s 7(2) was intended for compulsory testing and not for
voluntary testing.
4 S 50(4). I n EWN v Pharmaco Distribution 2016 ILJ 449 (LC) the court found the instruction to an
employee suffering from bipolar disorder to undergo psychiatric examination to determine if she was
fit to do her work was unlawful as it was not justifiable under one of the exceptions to the prohibition in
s 7(1)(a) or (b).

662 Psychometric testing Psychometric testing and other similar assessments of an employee are prohibited
unless:
(a) the test or assessment being used has been scientifically shown to be valid and reliable;1
 (b) it can be applied fairly to all employees;2
(c) it is not biased against any employee or group of employees;3 and
(d) has been certified by the Health Professions Council of South Africa or any other authorised body.4
1 Employment Equity Act 55 of 1998s 8(a).
2 S 8(b).
3 S 8(c).
4 S 8(d).

663 Applicants for employment The prohibition against unfair labour discrimination, medical testing and
psychometric testing is also applicable when a person applies for employment.1
1 Employment Equity Act 55 of 1998s 9. In the Employment Equity Regulations regs 2­7 of 1 August
2014, the Minister of Labour published the criteria and methodology for assessing work of equal value
as contemplated in s 6(4).
A list of factors justifying differentiation in terms and conditions of employment was also published and
includes factors such as length of service, qualifications, performance and scarcity of skills: reg 7.

664 Differentiation in employment terms and conditions Any differentiation in the employment terms and
conditions between employees of the same employer performing substantially the same work or work of equal
value, that is based on any one of the listed prohibited grounds, constitutes unfair discrimination.1
1 Employment Equity Act 55 of 1998s 6(4). The minister may prescribe the criteria to assess work of
equal value: s 6(5). A Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value has
been promulgated in GN 448, Government Gazette 38837, 1 June 2015.

DISPUTE RESOLUTION PROCEDURE

665 General Any party to a dispute concerning unfair discrimination, medical testing or psychometric testing or
other similar assessment, excluding a dispute concerning an unfair dismissal,1 may refer the dispute in writing to
the Commission for Conciliation, Mediation and Arbitration (CCMA) within six months after the act or omission that
allegedly constituted the unfair discrimination taking place.2 On good cause shown the CCMA may permit a party to
refer a case after the six­month period referred to above.3
The party referring the dispute must satisfy the CCMA that a copy of the application has been served on every
other party to the dispute and that the applicant endeavoured to resolve the dispute.4 The CCMA must attempt to
resolve the dispute through conciliation,5 but if that does not succeed, the matter could be referred to the Labour
Court for adjudication6 or, if the parties agree, to arbitration before the CCMA. 7 However, in a case of sexual
harassment or if the employee earns less than the section 6(3) threshold of the Basic Conditions of Employment
Act,8 the employee may refer the dispute to the CCMA for arbitration.9
Whenever unfair discrimination is alleged on a listed ground in terms of the Employment Equity Act, the employer
against whom the allegation is made must establish that either the discrimination did not take place or that the
discrimination is fair or justifiable.10 If the discrimination is based on an arbitrary ground, the onus is on the
employee to prove that the conduct amounts to discrimination and is unfair.11
1 See Employment Equity Act 55 of 1998 s 10(1). A person who is dismissed unfairly based on
discrimination could act in terms of the Labour Relations Act 66 of 1995 to challenge his or her
dismissal and approach the Commission for Conciliation, Mediation and Arbitration for relief because of
the discriminatory act. There are two remedies available to such a person. The one does not exclude
the other. See Dial Tech CC v Hudson 2007 ILJ 1237 (LC) par 63 et seq; Ditsamai v Gauteng Shared
Services Centre 2009 ILJ 2022 (LC) 2074 et seq confirmed on appeal in Gauteng Shared Services
Centre v Ditsamai 2012 ILJ 348 (LAC). See also Goussard v Impala Platinum 2012 ILJ 2898 (LC).
2 EEA 55 of 1998s 10(2). It is possible to refer a dispute relating to unfair discrimination to the CCMA
after a dispute for an unfair dismissal had been determined by the CCMA. See Ditsamai v Gauteng
Shared Services Centre supra. See also par 654 ante for a discussion of the concept "unfair".
3 S 10(3).
4 S 10(4).
5 S 10(5).
6 S 10(6)(a). The powers, process and orders that could be made in terms of s 10(7) are set out in the
Labour Relations Act 66 of 1995ss 133­166. A dispute should be referred within 90 days from the date
that a certificate was issued that the dispute was not resolved. Condonation for late filing is possible on
good cause shown. The Labour Appeal Court found that s 136 of the Labour Relations Act was with the
necessary changes applicable in terms of the Employment Equity Act 55 of 1998s 10(7) with regard to
a dispute flowing from the Employment Equity Act: NEHAWU v Charlotte Theron Children's Home 2004
ILJ 2195 (LAC). In Masango v Liberty Group 2012 ILJ 414 (LC), without reference to the Labour Appeal
Court's decision, the court found that there is no time limit prescribed within which the matter should
be referred to the Labour Court. This case is clearly in conflict with the Labour Appeal Court case that
referral should be within 90 days. In Minister of Safety & Security v Govender 2011 ILJ 1145 (LC) it
was argued that a certificate that the matter remained unresolved could not be issued because the
matter was not properly conciliated. The court decided: "The fact that s 10(7) specifically refers to
parts C and D of chapter VII of the Labour Relations Act (Act 66 of 1995) means that s 135(5) of the
Labour Relations Act is applicable and this section provides that if conciliation has not succeeded or 30
days have lapsed a certificate could be issued that the dispute has not been resolved."
7 Employment Equity Act 55 of 1998s 10(6)(b).
8 75 of 1997.
 9 Employment Equity Act 55 of 1998s 10(6)(aA). From here an appeal lies to the Labour Court: s 10(8).
10 S 11(1). It is implicit that the applicant will have to prove that there was discrimination. See IMAWU v
City of Cape Town 2005 ILJ 1404 (LC) 1433D­F where it was decided that the onus placed on the
employer by s 11 remained with the employer to prove fairness. See also par 657 ante.
11 S 11(2).

AFFIRMATIVE ACTION

Terminology Of Employment Equity Act

666 Affirmative action measures "Affirmative action measures" are measures designed to ensure that suitably
qualified people from designated groups have equal employment opportunities and are equitably represented in all
occupational levels in the workforce of a designated employer.1
Where discrimination is alleged and the employer concedes that there is discrimination, the employer has to
show that the discrimination was fair. It was decided 2 that, where discrimination had been proved and the
employer relied on affirmative action to justify such discrimination, it had to be proved that:
(a) it had acted according to standards that had been developed to achieve a specific object;
(b) the standards were aimed at the adequate protection and advancement of groups or categories of
persons; and
(c) the rights of other persons and the efficiency of the employer had not been undermined.
Section 15 obliges an employer to take measures to eliminate unfair discrimination in the workplace. In Naidoo v
Minister of Safety & Security 3 the court found: "The Employment Equity Act does not provide for disparate treatment
of members of a designated group on the basis of degrees of disadvantage suffered in the past within and
between the designated groups, nor does the Act recognise the notion of multiple disadvantages which for example
is the condition of women presently in South Africa." It was further indicated that affirmative action should not
create a barrier for designated groups.4 It was not competent to pursue an individual claim based on unfair
discrimination on account of the employer's failure to adhere to an employment equity plan until the enforcement
provisions provided in chapter V of the Act had been exhausted.5
Affirmative action is a defence for an employer who applied affirmative action according to the Employment Equity
Act.6 Where discrimination is not supported by any collective agreement or policy document, such discrimination
cannot be justified in terms of the Employment Equity Act.7
1 Employment Equity Act 55 of 1998s 15(1). See also par 654 ante. Regarding the two­fold purpose of
these measures and the employment equity plan, see Solidarity v SAPS 2014 ILJ 416 (SCA); 2014 ILJ
2981 (CC).
2 Eskom v Hiemstra 1999 ILJ 2362 (LC).
3 2013 ILJ 2279 (LC) par 123. This judgment was not upheld on appeal, but on different grounds and
these principles are still good in law.
4 See also, in this regard, Munsamy v Minister of Safety & Security 2013 ILJ 2900 (LC) in which case it
was also confirmed that numerical targets may be set, but not quotas. See also Solidarity v
Department of Correctional Services 2012 BLLR 1163 (LC) and Solidarity v SA Police Service 2013 ILJ
2943 (LC).
5 In Harmse v City of Cape Town 2003 ILJ 1130 (LC) par 47 the court decided that an individual could
also use the Employment Equity Act to support a claim that such individual is entitled to be appointed
in a position to further affirmative action. Tip AJ did not agree with Harmse's interpretation in Dudley v
City of Cape Town 2004 ILJ 305 (LC). In Dudley v City of Cape Town 2008 ILJ 2685 (LAC) the view
expressed by Tip AJ was confirmed by the Labour Appeal Court and the Harmse case was overruled.
This was followed in Minister of Safety & Security v Govender 2011 ILJ 1145 (LC).
6 This proposition was supported in Du Preez v Minister of Justice & Constitutional Development 2006 ILJ
1811 (SE) ­ a case dealing with a shortlist that was compiled in an unfair manner and Willemse v
Patelia 2007 ILJ 428 (LC). Where an employee was retrenched she could not rely on the affirmative
action principles to be excluded from the retrenchment exercise: Thekiso v IBM (SA) 2007 ILJ 177
(LC).
7 Biggs v Rand Water 2003 ILJ 1957 (LC) 1961C. The Employment Equity Act does not provide for
affirmative action based on religion: Stulweni v SA Police Service (Western Cape Province) 2003 ILJ
883 (CCMA).

667 Designated employer "Designated employer" means:1

(a) a person who employs 50 or more employees;
(b) a person who employs fewer than 50 employees, but has a total annual turnover that is equal to or above
the applicable annual turnover of a small business in terms of Schedule 4 to the Employment Equity Act;2
(c) a municipality as referred to in the Constitution;3
(d) an organ of state as defined in the Constitution,4 but excluding the National Defence Force and the State
Security Agency; and
(e) an employer bound by a collective agreement in terms of the Labour Relations Act,5 which appoints it as
designated employer in terms of the Employment Equity Act, to the extent provided for in the agreement.
1 Employment Equity Act 55 of 1998s 1.
2 Sch 4 contains the following thresholds of total annual turnover per sector:
­ agriculture: R6 million;
 ­ mining and quarrying: R22,50 million;
­ manufacturing: R30 million;
­ electricity, gas and water: R30 million;
­ construction: R15 million;
­ retail and motor trade and repair services: R45 million;
­ wholesale trade, commercial agents and allied services: R75 million;
­ catering, accommodation and other trade: R15 million;
­ transport, storage and communications: R30 million;
­ finance and business services: R30 million; and
­ community, social and personal services: R15 million.
3 Constitution of the Republic of SA 108 of 1996 ch 7.
4 S 239, which defines "organ of state" as any department of state or administration in the national or
provincial sphere of government, or any other functionary or institution exercising a power or
performing a function in terms of the Constitution or a provincial constitution, or exercising a public
power or performing a public function in terms of any legislation, but does not include a court or a
judicial officer.
5 66 of 1995: ss 23 31. S 23 sets out the legal effect of a collective agreement. Eg, if an employer is a
member of a registered employers' organisation, and such registered employers' organisation enters
into an agreement stating that all employers registered with the organisation will be designated
employers for the purposes of the Employment Equity Act 55 of 1998, then such employer will be a
designated employer even if he or she did not agree to the collective agreement. S 31 of Labour
Relations Act 66 of 1995 sets out the binding nature of collective agreements entered into at
bargaining councils. The example given above is also applicable in respect of an employer who is a
member of a registered employers' organisation forming part of a bargaining council. Bargaining
council agreements may be extended to employers who are not registered members of employers'
organisation. The fact that reference is only made to s 31 and not s 32, which deals with the extension
to non­parties of collective agreements concluded at a bargaining council creates the impression that
an employer cannot become a designated employer through the extension of a bargaining council
agreement in terms of s 32. See also AMCU v Chamber of Mines 2017 6 BCLR 700 (CC); 2017 ILJ 831
(CC).

668 Designated groups "Designated groups" means1 Black people, women2 and people with disabilities3 who:
(a) are citizens of South Africa by birth or descent; or
(b) became citizens of South Africa by naturalisation before 27 April 1994.4
"Black people" is a generic term which means Africans, Coloureds and Indians.5 As there is no definition for
Africans, Coloureds and Indians, in practice it may be difficult to dispute the race classification of a white male who
for example claims that he or she is Coloured.
1 Employment Equity Act 55 of 1998s 1.
2 Biggs v Rand Water 2003 ILJ 1957 (LC). There is a distinction between white women and designated
groups. See Solidarity v SAPS 2014 ILJ 2981 (CC).
3 "People with disabilities" are people who have a long­term or recurring physical or mental impairment,
which substantially limits their prospects of entry into, or advancement in, employment: s 1. S e e
Christianson 2004 ILJ 879. In NEHAWU v Department of Health (WC) 2004 ILJ 2091 (BCA) 2099I the
following is said: "The general objective of the statutory arrangements ­ both in the LRA and of course
in the EEA ­ is to promote procedural and substantive fairness in relation to 'people with disabilities'
and to encourage employers to keep people with disabilities in employment if these can reasonably be
accommodated." And at 2101I, in respect of an employer's duty to a disabled person: "In terms of the
EEA, 'reasonable accommodation' is a statutory right to 'any modification or adjustment to a job or to
the working environment that will enable a person from a designated group to have access to or
participate or advance in employment'." It is not expected of the employer to identify work
opportunities beyond its own workplace: 2103C. "The employer and the employee should adopt a
collaborative problem­solving approach to modify employment practices to give the employee with the
disability opportunities for job performance that would be similar, if not equal to a similarly situated
employee who does not have any disabilities": 2103D. See also Standard Bank of SA v CCMA 2008 ILJ
1239 (LC); Abels v Dialogue Group 2009 ILJ 2167 (CCMA) and par 699 post.
4 A person acquiring naturalisation after 27 April 1994, but who would have been entitled to acquire it
before this date and were precluded from it because of the policies of the previous government.
5 Reference is not made to "disadvantaged" persons. Black persons from outside South Africa is
therefore also designated: Auf der Heyde v University of Cape Town 2000 ILJ 1758 (LC) 1774. The Act
however prescribes citizenship as a requirement to be included as part of a designated group.

669 Employment policy or practice "Employment policy or practice"1 includes, but is not limited to:
(a) recruitment procedures, advertising and selection criteria;
(b) appointments and the appointment process;
(c) job classification and grading;
(d) remuneration, employment benefits and terms and conditions of employment;
(e) job assignments;
(f ) the working environment and facilities;
(g) training and development;
(h) performance evaluation systems;
 (i) promotion;
( j) transfer;
(k) demotion;
(l) disciplinary measures other than dismissal; and
(m) dismissal.2
1 Employment Equity Act 55 of 1998s 1.
2 Regarding conduct in breach of policy, see SAMWU v Kopanong Local Municipality 2014 ILJ 1378 (LC).

670 Other key concepts Certain other key concepts are defined in the Employment Equity Act.1 "Family
responsibility" means2 the responsibility of employees in relation to their spouse or partner, dependent children or
other members of their immediate family who need their care or support.
"HIV" means3 the Human Immunodeficiency Virus.
"Medical testing" includes4 any test, question, enquiry or other means designed to ascertain or which has the
effect of enabling the employer to ascertain whether an employee has any medical condition.
"Pregnancy" includes5 intended pregnancy, termination of pregnancy and any medical circumstances related to
pregnancy.
"Reasonable accommodation" means6 any modification or adjustment to a job or to the working environment
that will enable a person from a designated group to have access to or participate or advance in employment.
1 55 of 1998.
2 S 1. See also par 362 ante.
3 S 1. See Lacob 1996 DR 396. See also Heywood and Hassan 1999 ILJ 845.
4 S 1.
5 Ibid.
6 Ibid.

APPLICATION AND INTERPRETATION

671 Application of the Employment Equity Act Chapter 2 of the Employment Equity Act,1 dealing with the
prohibition of unfair discrimination, applies to all employees and employers.2 Except where chapter 3, dealing with
affirmative action, provides otherwise, chapter 3 applies only to designated employers3 a n d p e o p l e f r o m
designated groups.4 The Employment Equity Act does not apply to members of:
(a) the National Defence Force; or
(b) the State Security Agency.5
1 55 of 1998.
2 S 4(1).
3 See par 667 ante.
4 S 4(2). See par 668 ante.
5 S 4(3).

672 Interpretation of Act The Employment Equity Act 1 must be interpreted in compliance with the Constitution2
so as to give effect to its purpose, taking into account any relevant code of good practice issued in terms of the
Employment Equity Act or any other employment law,3 and in compliance with the international law obligations of
the Republic, in particular those contained in the International Labour Organisation Convention concerning
Discrimination in Respect of Employment and Occupation.4
1 55 of 1998.
2 Constitution of the Republic of SA 108 of 1996. S e e a l s o Solidarity v Department of Correctional
Services 2014 ILJ 504 (LC) (content of right to equality).
3 Employment law means the provisions of the Employment Equity Act 55 of 1998, o r a n y o f t h e
following Acts: the Unemployment Insurance Act 63 of 2001; the Skills Development Act 97 of 1998;
the Occupational Health and Safety Act 85 of 1993; the Compensation for Occupational Injuries and
Diseases Act 130 of 1993; the Labour Relations Act 66 of 1995; the Basic Conditions of Employment
Act 75 of 1997 and any other Act whose administration has been assigned to the Minister of Labour.
4 Ie, ILO Convention 111: Employment Equity Act 55 of 1998s 3. In Mbana v Shepstone & Wylie 2015 6
BCLR 693 (CC); 2015 ILJ 1805 (CC) the Constitutional Court restated the established test for fair
unfair discrimination.

AFFIRMATIVE ACTION MEASURES

673 Application of affirmative action measures Except where specifically otherwise provided for, only designated
employers1 need comply with the provisions of the Employment Equity Act 2 dealing with affirmative action.3
An employer who is not a designated employer may notify the Director­General of Labour that it intends to
comply voluntarily with the affirmative action measures set out in the Employment Equity Act as if it were a
designated employer.4
1 See par 667 ante for the definition of a "designated employer". The Employment Equity Act 55 of
 1998ss 12­33 cannot be enforced by an employee and therefore he or she has no direct access to the
Labour Court. It is only the Department of Labour that can enforce these provisions: Dudley v City of
Cape Town 2004 ILJ 305 (LC); Dudley v City of Cape Town 2008 ILJ 2685 (LAC) and Cupido v Glaxo
SmithKline SA 2005 ILJ 868 (LC).
2 55 of 1998. See also Solomon 1999 SAMLJ 231.
3 S 12.
4 S 14.

674 Affirmative action measures "Affirmative action measures" are measures designed to ensure1 that suitably
qualified people2 from designated groups3 have equal employment opportunities and are equitably represented in
all occupational categories and levels in the workforce of a designated employer.4 Affirmative action measures to be
implemented by a designated employer must include:5
(a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely
affect people from designated groups;
(b) measures designed to further diversity in the workplace based on equal dignity and respect of all people;
(c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy
equal opportunities and are equitably represented in the workforce of a designated employer; and
(d) taking measures that include preferential treatment 6 and numerical goals, but excluding quotas7 to:
(i) ensure the equitable representation of suitably qualified people from designated groups in all
occupational levels in the workforce; and
(ii) retain and develop people from designated groups and to implement appropriate training measures
for skills development.8
A designated employer is not required to take any decision concerning his or her employment policy or practice9
that will establish an absolute barrier to the prospective or continued employment or advancement of people who
are not from designated groups.10 Affirmative action must also be applied rationally.11
1 If the measures do not achieve their objectives they must be adapted. The Code of Good Practice:
Preparation, Implementation and Monitoring of Employment Equity Plans published in GN 393,
Government Gazette 40817, 28 April 2017, par 7 contains steps that could be taken in setting and
implementing affirmative action measures. See also George v Liberty Life Association of Africa 1996
ILJ 571 (IC) 590 (positive racial discrimination); PSASA v Minister of Justice 1997 ILJ 241 (T). The
purpose of affirmative action measures was considered in SAPS v Solidarity obo Barnard 2014 ILJ 2981
(CC).
2 See par 675 post.
3 See par 668 ante.
4 Employment Equity Act 55 of 1998s 15(1). S e e p a r 667 ante for the meaning of "designated
employer". The definition of affirmative action in s 15 indicates a role for affirmative action that goes
beyond the passivity of its status as a defence. Affirmative action measures include measures to
"eliminate employment barriers", to "further diversity" in the workplace and to ensure "equitable
representation". It includes pro­activeness and self­activity on the part of the employer. The Act
obliges an employer to take measures to eliminate unfair discrimination in the workplace: Harmse v
City of Cape Town 2003 ILJ 1130 (LC) 1141J­1142A. In FAGWUSA v Hibiscus Coast Municipality 2003
ILJ 1976 (LC) the court found that, if a comparison of the relative competence qualifications, suitability
and experience of a person and another is made and due consideration has been given to employment
equity considerations, the employer may elect the best person for the job. An employment equity plan
must be applied in accordance with the principles of fairness and with due regard to the affected
individual's constitutional right to equality. It is therefore not appropriate to apply, without more, the
numerical goals set out in an employment equity plan. That approach is too rigid. Due consideration
must be given to the particular circumstances of individuals potentially adversely affected. In this
regard, the need for representivity must be weighed up against the affected individual's rights to
equality and a fair decision made. See Solidarity v SAPS 2010 ILJ 742 (LC); 2014 ILJ 416 (SCA); 2014
ILJ 2981 (CC).
5 S 15(2).
6 Preferential treatment is in principle unfair, but is justified because of the reasons set out in the
preamble. See par 651 ante.
7 S 15(3). A numerical goal sets an objective. If the objective is not reached there is no sanction. If a
quota were to be set, it would entail setting a fixed target with possible sanctions if the target were not
met. See Solidarity v SA Police Service 2013 ILJ 2943 (LC) and Munsamy v Minister of Safety &
Security 2013 ILJ 2900 (LC). Numerical quotas are prohibited.
8 A retrenched employee cannot pursue a complaint in terms of ch 3 of the Act alleging that the
retrenchment is a breach of the employer's affirmative action obligations. See Thekiso v IBM SA 2007
ILJ 177 (LC) par 46. The Thekiso case followed PSA v SA Police Service 2007 ILJ 158 (LC) where the
court came to the conclusion that an individual did not have a right to affirmative action; affirmative
action places an obligation on the employer to implement it at the workplace. The court in Thekiso also
substantiated its decision with reference to the following statement in the judgment of Revelas J in
Robinson v Price Waterhouse Coopers 2006 ILJ 836 (LC): "Affirmative action is not and never has
been a legitimate ground for retrenchment". Rycroft discussed these cases in 2007 ILJ 81.
9 See par 669 ante.
10 S 15(4). It seems as though a designated employer may set barriers as long as they are not absolute
barriers. Thus, an employer may still appoint, eg, white males, and train and promote them. However,
such appointments should fit into the affirmative action plan and not negate the objectives set by the
employer in his or her employment equity plan. See Vol 24(2)(3ed) par 14 et seq post. There is no
right to affirmative action: Dudley v City of Cape Town 2008 ILJ 2685 (LAC); PSA v SAPS 2007 ILJ 158
(LC); Abbott v BCMI 1999 ILJ 330 (LC); FAGWUSA v Hibiscus Coast Municipality 2003 ILJ 1976 (LC).
 11 PSA v MEC for Agriculture 2012 BLLR 805 (LC). In this case, the applicant em­ployee applied for a
vacant post and was recommended by the selection panel, having been allocated the highest score of
the candidates interviewed. The first respondent decided instead to appoint the second rated
candidate, a female. She, however, lacked a qualification described as essential in the advertisement.
The desire to appoint a female may have been defensible on equity grounds, but the female should not
have been short­listed. This had prejudiced the applicant employee. The applicant employee was
awarded compensation. In Solidarity v SA Police Service 2012 BLLR 637 (LC) an Indian female was
appointed above a higher rated white male. This was done to correct the gender imbalance in the
service although Indian females were already "over­represented". The court also took into
consideration that service delivery would not adversely be affected.

675 Suitably qualified person A suitably qualified person is a person who is qualified for a job as a result of any
one or any combination of the following:1
(a) formal qualifications;
(b) prior learning;
(c) relevant experience; or
(d) capacity to acquire, within reasonable time, the ability to do the job.2
When determining whether a person is suitably qualified for a job, an employer must review all the factors listed
above and determine whether that person has the ability to do the job.3 An employer may not discriminate solely
on a person's lack of experience.4
1 Employment Equity Act 55 of 1998s 1 read with s 20(3) (4). The definition of "suitably qualified person"
is only relevant in the event of affirmative action; it is not generally applicable: Matjhabeng
Municipality v Mothupi 2011 ILJ 2154 (LC).
2 S 20(3). This is the most difficult criterion to apply. A person may have the capacity to become a
medical doctor but the question arises whether it is reasonable to appoint such person because he or
she will be able to do the job within seven years? Harmse v City of Cape Town 2003 ILJ 1130 (LC)
1143F: "Section 20(3)­(5) outlines the factors to be taken into account in the determination of whether
a person is 'suitably qualified' ". Cooper 2003 ILJ 1307 is of the view that an applicant alleging indirect
unfair discrimination would have to show that a failure to appoint solely on the basis of lack of relevant
experience would have a disproportionately adverse effect on the members of a group (in this case
black people) and would therefore amount to unfair discrimination on the basis of race.
3 S 20(4).
4 S 20(5). See Harmse v City of Cape Town supra. The Act provides for affirmative action, but does not
set the parameters of affirmative actions. See also pars 666674 fn 7 ante.

DUTIES OF DESIGNATED EMPLOYERS

676 Overview Every designated employer must, in order to achieve employment equity, implement affirmative
action measures1 for people from designated groups2 and must:3
(a) consult 4 with its employees as required by the Employment Equity Act;5
(b) conduct an analysis of employment policies, practices, procedures and the working environment;6
(c) prepare an employment equity plan;7 and
(d) report to the Director­General of Labour on progress made in implementing its employment equity plan.8
1 See par 674 ante.
2 Employment Equity Act 55 of 1998s 13(1). See par 668 ante.
3 Alleged non­compliance with duties, see Solidarity v Department of Correctional Services 2014 ILJ 504
(LC).
4 S 13(2).
5 See s 16; par 677 et seq post.
6 See s 19; par 680 post.
7 See s 20; pars 681­682 post.
8 See s 21; par 683 post.

677 Consultation with employees and their representatives A designated employer1 must take reasonable
steps to consult and attempt to reach agreement on the matters mentioned below2 with:3
(a) a r e p r e s e n t a t i v e t r a d e u n i o n4 r e p r e s e n t i n g m e m b e r s a t t h e w o r k p l a c e a n d i t s e m p l o y e e s o r
representatives nominated by them; or
(b) if no representative trade union represents members at the workplace, with its employees or
representatives nominated by them.
If there is a workplace forum establish in terms of the Labour Relations Act 5 the obligations set out in that Act 6
to consult in order to reach consensus with the workplace forum must also be complied with.7
The employees or their nominated representatives with whom the employer consults, taken as a whole, must
reflect the interests of:8
(a) employees from all occupational levels of the employer's workforce;
(b) employees from designated groups; and
 (c) employees who are not from designated groups.
1 See par 667 ante.
2 See par 678 ante.
3 Employment Equity Act 55 of 1998s 16(1).
4 "Representative trade union" is defined as a registered trade union, or two or more registered trade
unions acting jointly, that are sufficiently representative of the employees employed by an employer in
a workplace: s 1.
5 66 of 1995.
6 S 86.
7 Employment Equity Act 55 of 1998s 16(3).
8 S 16(2).

678 Matters for consultation A designated employer1 m u s t c o n s u l t 2 w i t h t h e e m p l o y e e s a n d t h e i r

representatives in respect of the following matters:3
(a) the conduct of an analysis required by the Employment Equity Act;4
(b) the preparation and implementation of the equity plan;5 and
(c) the report to be submitted to the Department of Labour in terms of the Employment Equity Act.6
1 See par 667 ante.
2 In consulting the employer and employees must attempt to reach agreement. If agreement cannot be
reached, the position of the employer will prevail.
3 Employment Equity Act 55 of 1998s 17.
4 See s 19; par 680 post.
5 See s 20; par 681 post.
6 See s 21; par 683 post.

679 Disclosure of information When a designated employer engages in consulting the employees, the employer
must disclose to the consulting parties relevant information that will allow those parties to consult effectively.1 The
employer must notify the trade union representative in writing if any information disclosed is confidential.2 A n
employer is not required to disclosed information that:
(a) is legally privileged;
(b) the employer cannot disclose without contravening a prohibition imposed on him or her by any law or order
of any court;
(c) is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
(d) is private personal information relating to an employee, unless that employee consents to the disclosure of
the information.3
If there is a dispute about what information is required or to be disclosed, any party to the dispute may refer the
dispute in writing to the Commission for Conciliation, Mediation and Arbitration (CCMA). The party who refers the
dispute to the CCMA must satisfy it that a copy of the referral has been served on all parties to the dispute.4 The
CCMA must attempt to resolve the dispute through conciliation but, if the dispute remains unresolved, it may be
referred to arbitration by the CCMA.5 In deciding whether information should be supplied or not, the CCMA must
balance the harm that disclosure is likely to cause to an employee or employer against the harm that the failure to
disclose is likely to cause.6
1 Employment Equity Act 55 of 1998s 18(1). An employer is only obliged to provide information to a
majority trade union because s 16(1) of the Labour Relations Act 66 of 1995 (LRA) provides that only a
majority trade union is by law entitled to information. See par 620 ante.
2 Employment Equity Act 55 of 1998s 18(2) read with s 16 of the LRA.
3 LRA s 16(5).
4 S 16(6) (7).
5 S 16(8) (9).
6 S 16(11).

680 Analysis of employment policies, practices and procedures A designated employer must collect information
and conduct an analysis as prescribed by regulation of its employment policies and practices1 and the working
environment, in order to identify employment barriers which adversely affect people from designated groups.2 Such
an analysis must include a profile, as prescribed by regulation, of the designated employer's workforce within each
occupational category and level in order to determine the degree of under­representation of people from
designated groups in various levels in that employer's workforce.3 A form4 is prescribed5 w h i c h s h o u l d b e
completed by each employee on a confidential and voluntary basis.6
Form EEA13 annexed to the regulations defines and sets out the following occupational categories that may be
used for analysis purposes:
(a) top management;
(b) senior management;
(c) professionals/middle management;
(d) skilled technicians/junior management;
(e) semi­skilled employees; and
 (f ) unskilled employees.
These levels are further described by reference to the Paterson, Peromnes, Hay and Castellion levels of
categorisation.
1 S e e p a r 669 ante. The Code of Good Practice: Preparation, Implementation and Monitoring of
Employment Equity Plans (see Vol 24(2)(3ed) par 14 post fn 1) item 6.1.3.2(a) provides that:
"The first step in conducting an analysis of the workforce profile is to differentiate between employees
of the various groups, both in terms of the designated (ie Blacks, women and persons with disabilities)
and non­designated groups by using the EEA1 form, contained in the regulations, for employees to
declare their status."
In Gebhardt v Education Labour Relations Council 2013 ILJ 1183 (LC) it was indicated that not to follow
this guideline could result in an unfair labour practice in terms of the Employment Equity Act 55 of
1998.
2 S 19(1). See par 668 ante.
3 S 19(2).
4 Form EEA1.
5 By regulation published in GN R595, Government Gazette 37873, 1 August 2014.
6 Reg 8 prescribes the manner in which the form must be completed. Instead of completing the form, an
employer may use dependable records of its own: reg 8(3).

681 Employment equity plan A designated employer must prepare and implement an employment equity plan
which will achieve reasonable progress towards equity in that employer's workforce.1 The employment equity plan
must contain the following:2
(a) the objectives to be achieved for each year of the plan. The employer should set the objectives after
consultation.3 It must be remembered that the plan will be measured against the plans of other employers in
similar businesses;4
(b) the affirmative action measures5 to be implemented;
(c) where underrepresentation of people from designated groups has been identified by the analysis,6 the
numerical goals to achieve the equitable representation of suitably qualified people7 from designated groups8
within each occupational level of the workforce, the timetable within which this is to be achieved and the strategies
intended to achieve those goals;
(d) the timetable for each year of the plan for the achievement of goals and objectives other than numerical
goals;
(e) the duration of the plan, which may not be shorter than one year or longer than five years;
(f ) the procedures that will be used to monitor and evaluate the implementation of the plan and whether
reasonable progress is being made towards implementing employment equity;
(g) the internal procedures to resolve any dispute about the interpretation or implementation of the plan;
(h) the persons in the workforce, including senior managers, responsible for monitoring and implementing the
plan; and
(i) any other matter prescribed by regulation by the Minister of Labour.
1 Employment Equity Act 55 of 1998s 20(1). The Code of Good Practice: Preparation, Implementation
and Monitoring of Employment Equity Plans was published by the Minister of Labour after consulting the
Employment Conditions Commission in GN R1394, Government Gazette 20636, 23 November 1999
and replaced by GN 393, Government Gazette 40817, 28 April 2017. In Coetzer v Minister of Safety &
Security 2003 ILJ 163 (LC) it was found that affirmative action should take place according to an
employment equity plan. In this case posts were not filled because not enough designated candidates
could be found. The employer could not without a plan refuse to appoint employees for promotion on
the basis of their race. It is advisable to set goals for specific sections of a business. To set goals for
the business as a whole may result in the fact that the goal for the business may have been achieved
but that there may be departments or sections in the business where this is not achieved. If the goal,
eg, at a specific level of management has been achieved, it would be open to attack if the fact that the
goal was not achieved in the rest of the business is used to apply affirmative action at the level of
management where it has been achieved. See, eg, Willemse v Patelia 2007 ILJ 428 (LC). The extent to
which the implementation of employment equity plans may discriminate against or adversely affect
individuals is limited by law. The terms of the Employment Equity Act require the application of its
provisions to be done in a manner that is both rational and fair. Due recognition must be given to the
affected individual's rights to equality. In the implementation of an employment equity plan, due
recognition must be given to the right of affected persons to dignity. See Solidarity v SAPS 2010 ILJ
742 (LC) 756; Solidarity v SAPS 2014 ILJ 416 (SCA); Solidarity v SAPS 2014 ILJ 2981 (CC) (regarding
its two­fold purpose).
2 S 20(2). Regarding the validity of the employment equity plan, see SAPS v Solidarity (CC) supra.
3 Pars 677­678 ante.
4 Par 693 post.
5 Par 674 ante.
6 S e e Solidarity v Department of Correctional Services 2014 I L J 504 (LC) (national demographics);
Solidarity v Department of Correctional Services 2016 ILJ 1995 (CC); Devenish 2017 Obiter 222.
7 Par 675 ante.
8 Par 668 ante.

682 Other matters concerning the employment equity plan An employment equity plan may contain any other
measures that are consistent with the purposes of the Employment Equity Act.1 An employer must make a copy of
the employment equity plan available to its employees for copying and consultation.2 Before the end of the term of
any current employment equity plan, a designated employer must prepare a subsequent employment equity plan.3
The Labour Court may impose a fine on an employer if he or she fails to prepare or implement an employment
equity plan.4
A plan must be retained for three years, unless the employer employs fewer than 150 persons in which case it
must be kept for two years.5
1 55 of 1998: s 20(6).
2 S 25(3).
3 S 23.
4 S 20(7).
5 Reg 3.2.

683 Submission of report to Director­General of Labour Each designated employer must submit a report to the
Director­General of Labour. 1 The report must be signed by the chief executive officer of the designated employer
and must contain the information prescribed by regulation.2 The report must be in form EEA2, prescribed by
regulation.3 Form EEA2 requires the following details:
(a) a workforce profile;
(b) details of workforce movement, that is recruitment, promotions and termination of employment;
(c) skills development;
(d) numerical goals and targets;
(e) monitoring and evaluation.
Every report that is to be submitted to the Director­General of Labour is a public document.4 A designated
employer must submit its report to the Director­General of Labour once every year, on the first working day of
October.5
Every designated employer that is a public company must publish a summary of the report in that employer's
annual financial report.6 The Minister of Labour must keep a register of designated employers7 that have submitted
the reports.8 The register is open to the public.9
1 Employment Equity Act 55 of 1998s 21(1).
2 S 21(4).
3 GN R595, Government Gazette 37873, 1 August 2014, reg 10. An employer whose operations extend
across different geographical areas, functional units, workplaces or industry sectors may elect to
submit a consolidated or separate report for each of these: reg 10(4) (5).
4 S 21(6). The report must be sent to the Employment Equity Registry, Private Bag X117, Pretoria, 0001.
Reg 10.
5 S 21(1). See also s 21(3) regarding the dates for first reports. In a footnote to s 21, it was stated that
the first report will refer to the initial development of and consultation around an employment equity
plan. The subsequent reports will provide detail of the progress made in implementing the employment
equity plan. Code of Good Practice on the Preparation, Implementation and Monitoring of Employment
Equity Plans par 8(d).
6 S 22(1).
7 See par 667 ante.
8 S 41(1).
9 S 41(2).

684 Categories for reporting purposes For reporting purposes a further categorisation is given:1
(a) top management;
(b) senior management;
(c) professionally qualified and experienced specialists and mid­management;
(d) skilled technical and academically qualified workers, junior management, supervisors, foremen and
superintendents;
(e) semi­skilled and discretionary decision­making;
(f ) unskilled and defined decision­making.
For each of the above categories the workforce is divided into male and female employees. Each of these
divisions is subdivided into African, Coloured, Indian and White employees, with further subdivisions for disabled
persons and foreign nationals.
1 Form EEA10, annexed to the regulations. See par 680 ante for details of the regulations.

685 Assigned manager to monitor and implement employment equity plan Every designated employer must
assign one or more senior managers to take responsibility for monitoring and implementing the employment equity
plan, provide the managers with the authority and means to perform their functions and take reasonable steps to
ensure that the managers perform their functions.1 The fact that a manager is appointed does not relieve the
designated employer of any duty imposed by the Employment Equity Act or any other law.2
1 Employment Equity Act 55 of 1998s 24(1).
 2 S 24(2).

686 Duty to inform employees and keep records An employer must display at the workplace where it can be
read by employees a notice in a form prescribed by regulation,1 informing the employees about the provisions of
the Employment Equity Act.2 A designated employer must place the following in prominent places accessible to all
employees in each of its workplaces:3
(a) the most recent report submitted by that employer to the Director­General of Labour;
(b) any compliance order, arbitration award or order of the Labour Court concerning the provisions of the Act
in relation to that employer; and
(c) any other document concerning the Act that may be prescribed by regulation.
An employer must establish and maintain for the prescribed period records in respect of its workforce, its
employment equity plan and other records relevant to its compliance with the Act.4
1 Employment Equity Regulations reg 11 and the form as contained in annexure EEA3 to the Regulations.
2 Employment Equity Act 55 of 1998s 25(1).
3 S 25(2).
4 S 26.

687 Income differentials Every designated employer, when reporting to the Director­General of Labour, 1 must
submit a statement as prescribed by regulation2 to the Employment Conditions Commission, established in terms of
the Basic Conditions of Employment Act,3 on the remuneration and benefits received in each occupational level of
the employer's workforce.4
Where disproportionate income differentials are reflected in the statement sent to the Employment Conditions
Commission, a designated employer must take measures progressively to reduce such differentials, subject to such
guidance as may be given by the Minister of Labour.5 The measures that an employer could take may include:6
(a) collective bargaining;
(b) compliance with sectoral determinations made by the Minister of Labour in terms of the Basic Conditions of
Employment Act;7
(c) applying the norms and benchmarks set by the Employment Conditions Commission;
(d) the relevant measures contained in skills development legislation.8
The Employment Conditions Commission must research and investigate norms and benchmarks for appropriate
income differentials and advise the Minister of Labour on appropriate measures for reducing disproportional
differentials.9 The commission may not disclose any information pertaining to individual employees or employers.10
Parties to a collective bargaining process may request the information for collective bargaining purposes.11
1 As required by Employment Equity Act 55 of 1998s 21. See also par 683 ante.
2 Employment Equity Regulations reg 12 and form EEA4. This form requires income differentials per
occupational category as well as per occupational levels. It requires the average of the five highest
and the average of the five lowest paid employees in each category. The categories are: top
management, senior management, professionals or middle management, skilled technical or junior
management, semi­skilled and unskilled employees. If an employer employs 150 and more
employees, the form must be kept for 3 years. If the employer employs fewer than 150 employees,
the form must be kept for 2 years.
3 75 of 1997. See pars 408­411 ante.
4 Employment Equity Act 55 of 1998s 27(1).
5 S 27(2).
6 S 27(3).
7 75 of 1997: s 51.
8 See Skills Development Act 97 of 1998.
9 Employment Equity Act 55 of 1998s 27(4).
10 S 27(5).
11 S 27(6). Such information is subject to the Labour Relations Act 66 of 1995s 16(4) (5).

MONITORING AND ENFORCEMENT OF ACT

688 Monitoring Any employee or trade union representative may bring an alleged contravention of the
Employment Equity Act 1 to the attention of another employee, an employer, a trade union, a workplace forum, a
labour inspector, the Director­General of Labour or the Commission for Employment Equity. 2 A labour inspector
acting in terms of the Employment Equity Act has the authority to enter, question and inspect as provided for in the
Basic Conditions of Employment Act.3
1 55 of 1998.
2 S 34. See NUMSA v ABB SA 2011 ILJ 761 (BCA).
3 75 of 1997ss 64 66: Employment Equity Act 55 of 1998s 35. See pars 402­403 ante.

689 Undertaking to comply A labour inspector must request and obtain a written undertaking from a designated
employer to comply with the following requirements within a specified period, if the inspector has reasonable
grounds to believe that the employer has failed to:
 (a) consult with the employers in respect of an employment equity plan, the analysis that preceded it and on
the report to the Director­General;1
(b) conduct an analysis of the workforce;2
(c) publish its report as required;3
(d) assign responsibility to one or more senior managers as required;4
(e) inform its employees as required;5 or
(f ) keep records as required.6
1 Employment Equity Act 55 of 1998s 36(a) read with s 16.
2 S 36(b) read with s 19.
3 S 36(f ) read with s 22.
4 S 36(h) read with s 24.
5 S 36(i) read with s 25.
6 S 36( j) read with s 26.

690 Circumstances in which compliance order may be issued A labour inspector may issue a compliance order
to a designated employer, if the employer has failed to comply with his or her duties 1 as designated employer. 2 A
compliance order must set out the following:3
(a) the name of the employer and the workplaces to which the order applies;
(b) the provisions of the Employment Equity Act which the employer has not complied with and the details of
the conduct constituting non­compliance;
(c) any written undertaking given by the employer and any failure by the employer to comply with the written
undertaking;
(d) any steps that the employer must take and the period within which those steps must be taken;
(e) the maximum fine,4 if any, that may be imposed on the employer for failing to comply with the order; and
(f ) any other information prescribed by the Minister of Labour by regulation.
A copy of the compliance order must be served on the employer named in it.5
1 In terms of Employment Equity Act 55 of 1998s 36. See par 676 ante.
2 S 37(1).
3 S 37(2).
4 The fines that may be imposed are set out in Sch 1.
5 S 37(3).

691 Obligations of designated employer in respect of compliance order A designated employer who receives a
compliance order must:
(a) display a copy of that order prominently at a place accessible to the affected employees at each workplace
named in it;1 and
(b) comply with the compliance order within the time period stated in it, unless the employer objects to the
order.2
If a designated employer does not comply with a compliance order within the period stated in it, or does not
object to that order, the Director­General of Labour may apply to the Labour Court to make the compliance order an
order of the court.3
1 Employment Equity Act 55 of 1998s 37(4).
2 S 37(5).
3 S 37(6).

692 Compliance order prohibited A labour inspector may not issue a compliance order in respect of a failure to
comply with the provisions dealing with affirmative action if:1
(a) the employer is being reviewed by the Director­General in order to determine whether the employer
complies with the Employment Equity Act;2 or
(b) the Director­General of Labour has referred an employer's failure to comply with a recommendation to the
Labour Court.3
1 Employment Equity Act 55 of 1998s 38.
2 See s 43.
3 See s 45.

ASSESSMENT AND REVIEW

693 Assessment of compliance In determining whether a designated employer 1 is implementing affirmative

action measures,2 all of the following must be taken into account:3
(a) the extent to which suitably qualified people 4 from and amongst the different designated groups5 a r e
equitably represented within each occupational level in the employer's workforce in relation to the demographic
profile of the national and regional economically active population;
(b) reasonable steps taken by the employer to train suitably qualified persons from designated groups;
(c) reasonable efforts made by a designated employer to implement its employment equity plan;
(d) the extent to which the designated employer has made progress in eliminating employment barriers that
adversely affect people from designated groups;
(e) reasonable steps taken by the employer to appoint and promote suitably qualified people from the
designated groups; and
(f ) any other prescribed factor.6
In any assessment of its compliance with the Act, an employer may raise any reasonable justification for its
failure to comply.7
1 See par 667 ante and Employment Equity Act 55 of 1998s 15.
2 See par 674 ante; Director­General Department of Labour v Comair 2009 ILJ 2711 (LC) par 32 ­
officials of the Department of Labour are required to bring value judgments on the degree of
compliance as well as the pace at which the objectives of the Act are being accomplished.
3 S 42(1). See Director­General Department of Labour v Comair supra pars 34 43 46. The factors must
be weighed cumulatively, ie, all the factors must be considered. This is a mandatory obligation.
4 See par 675 ante.
5 See par 668 ante.
6 The minister may issue regulations to be taken into account when assessing compliance with this Act: s
42(2) (3).
7 S 42(4).

694 Review by Director­General of Labour The Director­General of Labour may conduct a review to determine
whether an employer is complying with the provisions of the Employment Equity Act.1 In order to conduct the
review, the director­general may request:
(a) an employer to submit to him or her a copy of its current analysis or employment equity plan;2
(b) an employer to submit to him or her any book, record, correspondence, document or information that could
reasonably be relevant to the review of the employer's compliance with the Employment Equity Act;3
(c) a meeting with an employer to discuss its employment equity plan, the implementation of its plan and any
matters relating to compliance with the Employment Equity Act;4 or
(d) a meeting with any employee or trade union consulted in terms of the Employment Equity Act, a workplace
forum or other person who may have information relevant to the review.5
1 55 of 1998: s 43(1).
2 S 43(2)(a).
3 S 43(2)(b).
4 S 43(2)(c).
5 S 43(2)(d) and s 16.

695 Outcome of review Subsequent to a review by the Director­General of Labour, he or she may:
(a) approve a designated employer's equity plan;1 or
(b) make a recommendation to an employer in writing stating:2
(i) s t e p s w h i c h t h e e m p l o y e r m u s t t a k e i n c o n n e c t i o n w i t h i t s e m p l o y m e n t e q u i t y p l a n o r t h e
implementation of that plan, or in relation to its compliance with any other provisions of the Employment Equity Act;
(ii) the period within which those steps must be taken; and
(iii) any other information that may be prescribed by regulation.
If an employer fails to comply with a request made by the Director­General of Labour, or a recommendation made
by the director­general, he or she may refer the employer's non­compliance to the Labour Court.3
1 Employment Equity Act 55 of 1998s 44(a).
2 S 44(b).
3 S 45.

PROTECTION OF EMPLOYEE RIGHTS

696 Victimisation No person may discriminate against an employee who exercises a right conferred by the
Employment Equity Act.1 In this regard, no person may threaten to or do any of the following:
(a) prevent an employee from exercising a right conferred by, or from participating in, any proceedings in terms
of the Employment Equity Act;2 or
(b) prejudice an employee because of past, present or anticipated:
(i) disclosure of information that the employee is lawfully entitled to or required to give to another
person;
(ii) exercise of any right confirmed by the Employment Equity Act; or
 (iii) participation in any proceedings in terms of the Employment Equity Act.3
No person may favour, or promise to favour, an employee in exchange for that employee not exercising any right
conferred by, or not participating in, any proceedings in terms of the Employment Equity Act.4 However, it is
possible for parties to a dispute to settle the dispute through agreement, and this shall not be regarded as a
favour or promise to favour.5
The protection afforded by the Employment Equity Act applies to former employees and to persons applying for
employment.6
1 55 of 1998: s 51(1).
2 S 51(2)(a).
3 S 51(2)(b).
4 S 51(3).
5 S 51(4).
6 S 51(5).

697 Procedure for disputes If there is a dispute about the protection of employee rights as provided for in
section 51 of the Employment Equity Act,1 any party to the dispute may refer it in writing to the Commission for
Conciliation, Mediation and Arbitration (CCMA).2 T h e C C M A m u s t a t t e m p t t o r e s o l v e t h e d i s p u t e t h r o u g h
conciliation.3 If the dispute remains unresolved after conciliation, any party to the dispute may refer it to the Labour
Court for adjudication or all the parties to the dispute may consent to arbitration of the dispute by the CCMA.4 The
procedure prescribed by the Labour Relations Act 5 applies when a dispute is referred to the CCMA and the Labour
Court.6
1 55 of 1998.
2 S 52(1).
3 S 52(2).
4 S 52(3).
5 66 of 1995ss 133­166.
6 Employment Equity Act 55 of 1998s 52(4).

MISCELLANEOUS PROVISIONS

698 State contracts Every employer that makes an offer to conclude an agreement with an organ of state for the
furnishing of supplies or services to that organ of state or for the hiring or letting of anything must:
(a) if it is a designated employer, comply with the non­discrimination and affirmative action provisions of the
Employment Equity Act;1 or
(b) if it is not a designated employer, comply with the non­discrimination provisions of the Employment Equity
Act;2 and
(c) attach to that offer either:
(i) a certificate issued by the Minister of Labour 3 confirming that employer's compliance with the non­
discrimination provisions or the non­discrimination provisions and the affirmative action provisions, depending on
whether the employer is a designated employer or not. Such certificate is conclusive evidence of compliance with
the relevant chapters of the Employment Equity Act;4 or
(ii) a declaration by the employer that it complies with the relevant chapters of the Employment Equity
Act, which, when verified by the Director­General of Labour, is conclusive evidence of compliance.5
Failure to comply with the relevant provisions of the Employment Equity Act is sufficient ground for rejection of
any offer to conclude an agreement with the state or for cancellation of the agreement.6
1 55 of 1998: s 53(1)(a)(i).
2 S 53(1)(a)(ii) and ch 11 of the EEA.
3 A certificate of compliance issued by the Minister of Labour is valid for 12 months from the date of
issue or until the next date on which the employer is obliged to submit a report to the director­general
as required by s 21, whichever period is the longer: s 53(3).
4 S 53(1)(b)(i).
5 S 53(1)(b)(ii).
6 S 53(4).

699 Codes of good practice The Minister of Labour may, on advice of the Commission for Employment Equity,
issue, change or replace any code of good practice.1 In a footnote to this provision, it is stated that the
Employment Equity Act is an enabling Act and that codes of good practice are intended to provide employers with
information that may assist them in implementing the Employment Equity Act, particularly chapter III dealing with
affirmative action. Any code of good practice or any change or any replacement of a code of good practice must be
published in the Government Gazette.2
1 Employment Equity Act 55 of 1998s 54(1)(a). In August 2002 the Department of Labour published a
Code of Good Practice on the Employment of People with Disabilities (GN 1064, Government Gazette
23718, 19 August 2002). For an appraisal of this code see Ngwena and Pretorius 2003 ILJ 1816; Smith
v Kit Kat Group 2017 ILJ 483 (LC). A Code of Good Practice on the Integration of Employment Equity
into Human Resource Policies and Practices was issued by the Department of Labour in GN 1358,
Government Gazette 27866, 4 August 2005 and also published in 2005 ILJ 1911, dealing with job
analysis and job descriptions, recruitment and selection, induction, probation, medical, psychological
 and other similar assessments, terms and conditions of employment, remuneration, job assignments,
performance management, skills development, promotion and transfer, confidentiality and disclosure
of information, retention, scope, impact on employment equity, harassment, discipline, grievance and
dispute resolution, terminating employment and exit interviews. These are guidelines to enable
employers to ensure that their human resource policies and practices are based on non­discrimination
and reflect employment equity principles at the commencement of employment, during employment
and when terminating employment. A Code of Good Practice on the Handling of Sexual Harassment
Cases in the Workplace was issued on 4 August 2005 in GN 1357, Government Gazette 27865, Code of
Good Practice on HIV and AIDS and the World of Work was published in GN 451, Government Gazette
35436, 15 June 2012. The Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value
was published on 1 June 2015, GN 448, Government Gazette 38837.
2 S 54(2).

700 Regulations The Minister of Labour may, by notice in the Government Gazette and on the advice of the
Commission for Employment Equity, make regulations regarding any matter that the Employment Equity Act 1 may
require or permit to be prescribed and any other administrative or procedural matters that may be necessary or
expedient to achieve the proper and effective administration of the Employment Equity Act.2 The minister must, by
notice in the Government Gazette, make regulations providing for separate and simplified forms and procedures for
employers employing 150 or fewer employees. These regulations must be made in respect of the following:3
(a) the analysis of the working environment of the employee;
(b) the employment equity plan;
(c) the report to be delivered on a regular basis to the Director­General of Labour informing him or her of the
progress made in the implementation of the Employment Equity Act;
(d) ways and means for such employers to inform their workforce of compliance and progress in respect of the
Employment Equity Act; and
(e) the keeping of records by such employers.
1 55 of 1998. Regulations were published in GN R1360, Government Gazette 20626 dated 23 November
1999; GN R995, Government Gazette 21583, 2 October 2000 and again amended in GN 480,
Government Gazette 28858, 26 June 2006. The current applicable Regulations were published on
1 August 2014, GN R595, Government Gazette 37873. These regulations deal, inter alia, with
consultations, collecting information, implementation of the equity plan, duty to inform, reporting and
enforcement.
2 S 55(1).
3 S 55(2) read with ss 19 20 21 25 26.

701 Delegation of powers and duties The Minister of Labour may delegate any power confirmed or assigned to or
any duty imposed upon him or her, except the following:
(a) the appointment of the Commission for Employment Equity;
(b) the appointment of a chairperson of the Commission for Employment Equity;
(c) the conditions of appointment of members of the Commission for Employment Equity;
(d) the issuing of a certificate confirming compliance with the Employment Equity Act 1 in order to be able to
enter into a contract with the state;
(e) the issuing of codes of good practice;
(f ) the making of regulations; and
(g) amending the fine for undue influence of any person who is exercising a power or performing a function in
terms of the Employment Equity Act or who knowingly gives false information.2
A delegation or assignment must be in writing and may be subject to any conditions or restrictions determined by
the minister.3 The minister may, at any time, withdraw a delegation or assignment made by him or her or withdraw
or amend any decision made by a person exercising a power or performing a duty delegated or assigned to such
person.4 Similarly, the Director­General of Labour may delegate any power conferred to or assign any duty imposed
upon him or her to any employee of the Department of Labour. The director­general has similar powers as the
minister to delegate and amend such delegations.5
1 55 of 1998.
2 S 56(1) read with ss 29(1) (5) (7) 54 55 59(4) 61(4).
3 S 56(2).
4 S 56(3).
5 S 56(4) (5).

702 Temporary employment services Temporary employment services are also known as labour brokers.
Temporary employment services engage persons to deliver services to their clients.1 Although the person providing
his or her services does so under the control of the client, the labour broker and the client are fully responsible for
the payment of the person providing the services to the client. If a person is placed by a temporary employment
service with a client and that person is employed by the client for an indefinite period or for a period of three
months or longer, such person will be regarded as an employee of the client and must be counted as part of the
affirmative action analysis, plan and report.2 Where a temporary employment service, on the express or implied
instructions of a client, commits an act of unfair discrimination, the temporary employment service and the client are
jointly and severally liable.3
1 See also par 87 ante. The Labour Relations Act 66 of 1995s 198 provides for temporary employment
services.
2 Employment Equity Act 55 of 1998s 57(1).
3 S 57(2).

703 Breach of confidentiality Any person who discloses any confidential information acquired in the performance
of a function in terms of the Employment Equity Act 1 commits an offence.2 It is not an offence if the information is
disclosed to enable a person to perform a function in terms of the Employment Equity Act or must be disclosed in
terms of the Employment Equity Act or any other law or by court order. 3 A person convicted of an offence with
regard to a breach of confidentiality may be sentenced to a fine not exceeding R30 000.4 The Minister of Labour
may, by notice in the Government Gazette, amend the maximum amount of the fine of R30 000 in order to counter
the effect of inflation.5
1 55 of 1998.
2 S 59(1).
3 S 59(2).
4 S 59(3).
5 S 59(4).

704 Liability of employers If it is alleged that an employee, while at work, contravened a provision of the
Employment Equity Act 1 or engaged in any conduct that, if engaged in by that employee's employer, would
constitute a contravention of the Employment Equity Act, the alleged conduct must immediately be brought to the
attention of the employer. 2 The employer must consult with all relevant parties and must take the necessary steps
to eliminate the alleged conduct in order to comply with the provisions of the Act.3 If the employer fails to take the
necessary steps and it is proved that the employee contravened the relevant provisions, the employer will also be
deemed to have contravened the provision.4 However, an employer will not be liable for the conduct of an
employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the
employee would not act in contravention of the Employment Equity Act.5
1 55 of 1998. The term "while at work" was considered in Biggar v City of Johannesburg 2011 ILJ 1665
(LC). The court found that: "In terms of s 60 an employer is responsible for the discriminatory conduct
of its employees at a housing facility provided by the employer to its employees although it is not at
the workplace. Such housing facility is within the remit of the employer's disciplinary powers."
2 S 60(1). In Piliso v Old Mutual Life Assurance Co 2007 JOL 18897 (LC); 2007 ILJ 897 (LC) the court
found that s 60 created vicarious liability for the employer. Ngcukaitobi 2007 ILJ 2178 criticises this
judgment. Where the employee's claim in terms of the Act was bad, the court seemed to have used s
23 of the Constitution of the Republic of SA 108 of 1996, as a "stop­gap": "Given that there are no
specific provisions on remedies under the Constitution, he was also driven to find a remedy under
'constitutional damages'." The writer is of the opinion that this is wrong in law. In Makoti v Jesuit
Refugee Service SA 2012 ILJ 1706 (LC) the employee did not bring the matter to her employer's
attention until after her dismissal and, as a result, the employer was never afforded an opportunity to
address the improper behaviour when it took place. The court found it would be unduly onerous to
order the employer to pay the employee's damages.
3 S 60(2). S e e Ntsabo v Real Security CC 2003 ILJ 2341 (LC). Non­compliance with s 60 could be a
cause of action for damages. If the employer took steps to eliminate conduct that amounted to sexual
harassment that is the end of the matter especially where the employer can prove that no further
harassment took place: Mokoena v Garden Art 2008 ILJ 1196 (LC).
4 S 60(3).
5 S 60(4). In Moatshe v Legend Golf & Safari Resort Operations 2015 ILJ 1111 (LC) the employer was
found to have complied with the requirements of s 60 and was not held liable after it has taken all
reasonable steps.

705 Obstruction, undue influence and fraud No person may obstruct or attempt to improperly influence any
person who is exercising a power or performing a function in terms of the Employment Equity Act,1 or knowingly
give false information in any document or information provided to the Director­General of Labour or a labour
inspector in terms of the Employment Equity Act.2 No employer may knowingly take any measure to avoid becoming
a designated employer. 3 A person who contravenes this provision commits an offence and may be sentenced to a
fine not exceeding R30 000.4 The Minister of Labour may, by notice in the Government Gazette, amend the fine of
R30 000 in order to counter the effect of inflation.5
1 55 of 1998.
2 S 61(1).
3 S 61(2).
4 S 61(3).
5 S 61(4).

706 Fines The fines for contravening the Employment Equity Act 1 are set out in Schedule 1 to the Act and range
from a minimum of R1 500 000 to a maximum of R2 700 000, depending on the nature and number of previous
contraventions of the Act.
1 55 of 1998.
707 Conflicts with other laws If any conflict relating to a matter dealt with in the Employment Equity Act 1 arises
between the provisions of the Employment Equity Act and the provisions of any other law other than the
Constitution2 or an Act of Parliament expressly amending the Employment Equity Act, the provisions of the
Employment Equity Act will prevail.3
1 55 of 1998.
2 Constitution of the Republic of SA 108 of 1996.
3 Employment Equity Act 55 of 1998s 63.

708 Transitional arrangements Any dispute concerning an unfair labour practice as defined in the Labour
Relations Act 1 that arose before the commencement of the Employment Equity Act,2 must be dealt with as if the
repealed provisions of the Labour Relations Act had not been repealed.3
1 66 of 1995: Sch 7 item 2(1)(a).
2 55 of 1998.
3 Sch 3 item 2.

COMMISSION FOR EMPLOYMENT EQUITY

709 Establishment and composition The Commission for Employment Equity is established in terms of the
Employment Equity Act.1 It consists of a chairperson and eight other members appointed by the Minister of Labour
on a part­time basis,2 including:
(a) two people nominated by the voting members of the National Economic Development and Labour Council
(NEDLAC)3 who represent organised labour;
(b) two people nominated by the voting members of NEDLAC who represent organised business;
(c) two people nominated by the voting members of NEDLAC who represent the state; and
(d) two people nominated by those voting members of NEDLAC who represent the organisations of community
and development interests in the development chamber of NEDLAC.4
1 55 of 1998: s 28.
2 S 29(1).
3 See pars 39­45 ante.
4 S 29(2).

710 Members The members of the Commission for Employment Equity must be appointed with due regard to the
representivity of people from designated groups.1 The chairperson and each member of the commission must have
experience and expertise relevant to advising the Minister of Labour on good practices issued by the minister in
terms of the Employment Equity Act, regulations made by the minister in terms of the Act and policy and other
matters concerning the Act.2 The chairperson and members must act impartially when performing any function of
the commission.3 They may not engage in any activity that may undermine the integrity of the commission and may
not participate in forming or communicating any advice on any matter in respect of which they have direct financial
interest or any other conflict of interest.4
The Minister of Labour determines the term of office of each member of the commission, as well as the
remuneration and allowances payable.5 The Minister of Labour may also determine any other condition of
appointment.6 A member's appointment is terminated when:
(a) such person resigns;7 or
(b) such person is found guilty of serious misconduct;
(c) becomes permanently incapacitated;
(d) is absent from three consecutive meetings of the commission without the prior permission of the
chairperson except on good cause shown; or
(e) engages in any activity that may undermine the integrity of the commission.8
1 Employment Equity Act 55 of 1998s 29(3).
2 S 29(4)(a) read with s 30(1).
3 S 29(4)(b).
4 S 29(4)(c) (d).
5 S 29(7)(a) (b).
6 S 29(7)(c).
7 S 29(8).
8 S 29(9).

711 Functions and powers of commission As well as advising the Minister of Labour on codes of good practice,
regulations and policy matters,1 t h e C o m m i s s i o n f o r E m p l o y m e n t E q u i t y m a y m a k e a w a r d s r e c o g n i s i n g
achievements of employers in furthering the purposes of the commission, research and report to the Minister of
Labour on any matter relating to the application of the Employment Equity Act or perform any other function
prescribed by regulation.2
The commission may call for written representations from members of the public and hold public hearings at
which it may permit members of the public to make oral representations.3 The commission must submit an annual
report to the Minister of Labour.4
The commission is financed by the fiscus.5
1 Employment Equity Act 55 of 1998s 30(1).
2 S 30(2).
3 S 32.
4 S 33.
5 S 31.

LEGAL PROCEEDINGS

712 Conflict of proceedings If a dispute has been referred to the Commission for Conciliation, Mediation and
Arbitration (CCMA)1 by a party concerning an unfair discrimination complaint in terms of the Employment Equity Act 2
and the issue to which the dispute relates also forms the subject of a referral to the Labour Court by the Director­
General of Labour, 3 the CCMA proceedings must be stayed until the Labour Court makes a decision on the referral
by the Director­General of Labour.4
If a dispute has been referred to the CCMA by a party in terms of chapter 2 and that same matter is reviewed by
the director­general,5 conciliation or adjudication in respect of the dispute must be stayed until the review has been
completed and the employer has been informed of the outcome.6 Disputes concerning contraventions of the
Employment Equity Act by the same employer may be consolidated.7
1 Established in terms of the Labour Relations Act 66 of 1995s 112.
2 55 of 1998.
3 In terms of s 45. See par 695 ante.
4 S 46(1).
5 In terms of s 43. See par 694 ante.
6 S 46(2).
7 S 47.

713 Powers of commissioner A commissioner of the Commission for Conciliation, Mediation and Arbitration may,
in any arbitration proceedings in terms of the Employment Equity Act,1 make any appropriate arbitration award that
gives effect to the provisions of the Act.2
1 55 of 1998.
2 S 48.

714 Powers of Labour Court The Labour Court 1 has exclusive jurisdiction to determine any dispute about the
interpretation or application of the Employment Equity Act,2 except where the Act specifically provides otherwise.3
The Labour Court may make any appropriate order. 4 The determination of appropriate relief requires that the court
duly consider various interests, including the need to redress the wrong caused by the infringement, the deterrence
of future violations, the dispensation of justice which is fair to all those who might be affected, and the necessity of
ensuring that the order can be complied with.5
The court may make the following orders:
(a) making a compliance order by a labour inspector or the Director­General of Labour an order of the Labour
Court or late referral of a dispute;
(b) condoning the late filing of a document;
(c) directing the Commission for Conciliation, Mediation and Arbitration to conduct an investigation that could
assist the Labour Court and to submit a report;
(d) awarding compensation;
(e) awarding damages;6
(f ) ordering compliance with the Employment Equity Act;
(g) imposing a fine;7
(h) reviewing an administrative action in terms of the Employment Equity Act on any grounds permissible in
law;
(i) hearing appeals where the Employment Equity Act allows appeals;8 and
( j) dealing with any matter necessary or incidental to performing its functions in terms of the Employment
Equity Act.
The Labour Court, in making any order, may take into account any delay on the part of the party who seeks relief
in processing a dispute in terms of the Act.9
If the Labour Court decides that an employee has been unfairly discriminated against, the court may make any
appropriate order that is just and equitable in the circumstances, including:10
(a) payment of compensation by the employer to the employee;11
(b) payment of damages by the employer to the employee;12
(c) an order directing the employer to take steps to prevent the same unfair discrimination or a similar practice
occurring in the future in respect of other employees;
 (d) an order directing the removal of the employer's name from the register kept by the Minister of Labour of
designated employers who have submitted a report concerning consultation around the employment equity plan
and progress made in implementing the employment equity plan; and
(e) the publication of the Labour Court's order.
1 Established in terms of the Labour Relations Act 66 of 1995s 151.
2 55 of 1998.
3 S 49. See Strydom v Chiloane 2008 ILJ 2008 607 (T).
4 S 50(1). S 50(1) does not, generally speaking, purport to deal with the jurisdiction of the Labour Court
and with causes of action. That is, eg, in a case such as where the director­general refers a matter of
non­compliance to the Labour Court in terms of the enforcement procedure set out in ch 5. The only
possible exception to this general thread in s 50(1) is s 50(1)(h), but even that may arguably be said
to relate to powers and not causes of action and jurisdiction: Dudley v City of Cape Town 2004 ILJ 305
(LC) and Dudley v City of Cape Town 2008 ILJ 2685 (LAC) 2705 (par 49). See also Karriem v SAPS
2007 ILJ 158 (LC); Cupido v GlaxoSmithKline SA 2005 ILJ 868 (LC) and Thekiso v IBM SA 2007 ILJ 177
(LC).
5 Christian v Colliers Properties 2005 ILJ 234 (LC) 240G­F.
6 In Intertech Systems v Sowter 1997 ILJ 689 (LAC) an employee had resigned after being employed for
19 months. The evidence showed that she had been harassed in a sustained and continuous manner
both in and away from the workplace. She was awarded R92 088 but the award included special
damages of R36 733,49 which, although incurred, could not for causal reasons be attributed to the
employer. In Ntsabo v Real Security CC 2003 ILJ 2341 (LC), the applicant, a 34­year old mother, had
been subjected to sexual harassment by her supervisor for most of the 7 months of her employment.
This had consisted of his frequently touching her breasts, buttocks and genital area. There was one
incident of simulated intercourse by the supervisor culminating in his ejaculating on her uniform. As a
result of this harassment she had undergone a character change, become intolerant towards her
family, developed fears of sleeping alone, experienced nightmares of rape, suffered from regular
headaches and loss of appetite, developed an extremely negative self­image and formed suicidal
tendencies and acute psychological symptoms. She was awarded R50 000 for general damages. In
Grobler v Naspers Bpk 2005 ILJ 1007 (SCA), the plaintiff had, over a 7­month period, been sexually
harassed by a trainee manager. He attempted to kiss her, touched her, made intimate suggestions to
her, followed her when she went to the toilet and, on one occasion, got into her car and attempted to
force her, at gunpoint, to have sex with him. He had written numerous intimate letters, asked her to
marry him, fondled her and threatened to have her two children killed should she report his harassing
activities. She was awarded R150 000 as general damages. In Christian v Colliers Properties supra
242A­B the court gave the following guidelines: "It would also be unwise to attempt an exhaustive list
of the factors to be taken into account. These would include the duration, extent and frequency of the
harassment, the extent to which the acts of harassment are blatant and intrusive, the arrogance and
maliciousness attributable to the harassing party, and the consequences to the victim, but these are by
no means the only factors which could play a role." It awarded R10 000 due to the short duration of
the harassment. In Evans v Japanese School of Johannesburg 2006 I L J 2607 (LC) an amount of
R200 000 was awarded for discrimination based on age. In Piliso v Old Mutual Life Assurance Co 2007
JOL 18897 (LC); 2007 ILJ 897 (LC) damages were awarded in the amount of R45 000 for breach of the
employee's right to fair labour practices as enshrined in the Constitution of the Republic of SA 108 of
1996. In Dial Tech CC v Hudson 2007 ILJ 1237 (LC) the court awarded R58 080 (12 months' salary)
where a managing director placed pornographic material on his computer that was linked to the
computer of the employee. In Smith v Kit Kat Group 2017 ILJ 483 (LC) the employee was unfairly
discriminated against by his employer based on his disabilities and awarded R1,5 million in damages.
7 See par 690 ante.
8 See s 40; par 697 ante.
9 S 50(3).
10 S 50(2). In Biggar v City of Johannesburg 2011 ILJ 1665 (LC) the court expressed the view that a
court is not bound to follow only one of the possible remedies set out in s 50; a combination of
different remedies with different aims may be used to alleviate the situation. In Smith v Kit Kat Group
supra the court held that it had a discretion to award compensation and damages.
11 S 50(2)(a). See also SAA v Jansen van Vuuren 2014 ILJ 2774 (LAC).
12 S 50(2)(b). See SAA v Jansen van Vuuren supra. A claim for damages as a result of a contravention of
s 6 can be brought simultaneously with a dispute where the employee avers that she was
discriminated against, based on her age: Bedderson v Sparrow Schools Education Trust 2010 ILJ 1325
(LC). In Evans v Japanese School of Johannesburg 2006 ILJ 2607 (LC), Bedderson v Sparrow Schools
Education Trust supra and Ehlers v Bohler Uddeholm Africa 2010 ILJ 2383 (LC) an automatically unfair
dismissal in terms of the Labour Relations Act 66 of 1995s 187 was also held to amount to unfair
discrimination in an employment policy or practice which contravened the Employment Equity Act 55 of
1998s 6(1). In Wallace v Du Toit 2006 BLLR 757 (LC) par 20 the court remarked: "It seems to me that
where a solatium is claimed or awarded under the ambit of compensation to compensate for the
automatic unfairness of the dismissal, which in this situation embodied the unfair discrimination, and
such claim is made in addition to a claim for damages for unfair discrimination arising out of the same
facts then there is a duplication that works unfairly against a respondent which a court must be careful
to avoid."
Hibbert v ARB Electrical Wholesalers 2013 ILJ 1190 (LC) pars 28 29 followed the Wallace case:
"28 To award compensation simply because the employer's conduct amounts to discrimination
warranting compensation under either Act, does not in my mind mean that the employee is entitled to
compensation for the same wrong under both.
29 That leaves the question of damages. It can still be argued that even if an employee cannot expect
compensation under both the LRA and the EEA, he or she might still be entitled to claim damages for
the unfair discrimination under the EEA, which unlike the LRA, recognises such a claim. Accepting that
proposition is correct, the employee must still prove his damages."
In Lewis v Media 24 2010 ILJ 2416 an employee claimed damages based on religious discrimination in
that he was prevented from observing the Shabbat. The court decided that in order to hold an
employer liable for damages the latter must have known of the religious beliefs of the employee and
he discriminated against the employee. If the employer does not have knowledge of the employee's
religious beliefs damages cannot be awarded. See also POPCRU v Department of Correctional Services
2010 ILJ 2433 (LC); Smith v Kit Kat Group supra.