The labour court, per Van Niekerk J, dealt with the Nhlapo Mofokeng v Emfuleni Municipality and Another (2023) 44 ILJ 815 (LC); (2022) 33 SALLR 276 (LC) as follows:
- s64(4) of the LRA permits an employee or a trade union, who refers a dispute about a unilateral change to terms and conditions of employment to a council or the CCMA, in such referral and for the period mentioned in s64(1)(a) (a maximum of 30 days), to (a) require the employer not to implement the unilateral change, or (b) if already implemented, require the employer to restore such terms and conditions of employment
- with reference to the aforesaid statutory provision, it is important to indicate that s64(1)(a) of the LRA determines that the right to strike and the recourse to lockout occurs if the issue in dispute has been referred to the council or the CCMA and if either a certificate of non-resolution has been issued or the period of 30 days has lapsed since the referral was received by the council or the CCMA (the maximum of 30 days)
- in terms of s64(5) of the LRA, the employer is required to comply with the requirement to restore the existing terms and conditions of employment or not to implement the anticipated changes within 48 hours of service of the referral on it – with reference to Schoeman and Another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC) and Du Randt v Ultamat SA (Pty) Ltd and Another (2013) 34 ILJ 2228 (LC), it was held that s64 only pertains to employees in a strike context (or lockout context) and not to an individual employee
Thus, unlike the scenario under the 1995 LRA, where the unilateral change to terms and conditions of employment constituted an unfair labour practice, it is apparent that the only option available to an individual employee is to challenge the employer before the labour court in terms of s77(3), read with s77A(e), of the BCEA.
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