AUTHOR: MICHELLE POSEMANN
PUBLICATION DATE: AUG 19, 2025
1. Introduction
Recognising that the various pieces of legislation covering employment law needed updating, the Labour Market Chamber of NEDLAC established a Labour Law Reform Task Team, comprising organised labour, organised business and government, to develop proposed legislative amendments and recommendations on the way forward, where required.
This process terminated in October 2024 and the final NEDLAC report on the process, together with the proposed Amendment Acts were released in the last week of February 2025.
One of the proposed amendments to the Labour Relations Act 66 of 1995 (LRA) is the further limitation of the scope of the unfair labour practice definition.
This thought paper considers the impact of these amendments, which were opposed by labour and agreed to by government and business, and which ostensibly erode the employee’s rights to protection during the course of the employment relationship.
2. History – unfair labour practice under the 1956 LRA
Under the previous LRA, unfair labour practice meant:
“any act or omission, other thana strike or lock-out, which has or may have the effect that:
- any employee or class of employees is or may be unfairly affected or that his or their employment opportunities or work security is or may be prejudiced or jeopardized thereby;
- the business of any employer or class of employers is or may be unfairly affected or disrupted thereby;
- labour unrest is or may be created or promoted thereby;
- the labour relationship between employer and employee is or may be detrimentally affected thereby.”
This provided for the commission of an unfair labour practice by employers, employees and/or trade unions.
Despite section 23(1) of the Constitution of the Republic of SA, 1996 providing that “everyone” has the right to fair labour practices”, the definition was curtailed in the 1995 LRA to allow the unfair labour practice to extend to acts of the employer only.[i]
With the introduction in the 1995 LRA of section 186(2), a closed list of unfair labour practice disputes was introduced, limiting the right even further.
3. What does the constitutional right to ‘fair labour practices’ then mean?
“The concept of fair labour practice is incapable of precise definition. This problem is compounded by the tension between the interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept.”[ii]
“The concept of a fair labour practice, as it was understood in our law from its introduction in the Labour Relations Act 28 of 1956 (including successive definitions), recognizes the rightful place of equity and fairness in the workplace. In particular the concept recognizes that what is lawful may be unfair. T Poolman neatly summarises the strength and nature of the concept. He says in Principles of Unfair Labour Practice (Juta) at 11:
‘The concept `unfair labour practice’ is an expression of the consciousness of modern society of the value for the rights, welfare, security and dignity of the individual and groups of individuals in labour practices. The protection envisaged by the legislature in prohibiting unfair labour practices underpins the reality that human conduct cannot be legislated for in precise terms. The law cannot anticipate the boundaries of fairness or unfairness of labour practices. The complex nature of labour practices does not allow for such rigid regulation of what is fair or unfair in any particular circumstance’.”[iii]
4. The Proposed Amendments to s 186(2) of the LRA
The Labour Relations Amendment Bill seeks to further limit the defined scope of the unfair labour practice dispute by removing:
section 186(2)(a) – unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; and
section 186(2)(c) – a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.
The proposed remaining section provides that:
“(2) Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
In an attempt to mitigate the impact of the limitation, it is proposed that a transitional provision be inserted into Schedule 7 to the LRA delaying its application to the public service for one year to allow collective agreements dealing with issues such as promotion disputes to be negotiated in the public service bargaining councils.[iv]
5. Where to from here?
If the indication in the public sector is that, going forward, the rights to fair labour practices must be addressed and protected in collective agreements, various questions arise:
- where does this leave the private sector, and will the common law of contract be developed further?
- will there be greater direct reliance on section 23 of the Constitution? If so, this will necessitate the further development of the jurisprudence already set out in:
- Pretorius & another v Transport Pension Fund & others (2018) 39 ILJ 1937 (CC) that there may be direct reliance without having to show that the LRA 1995 is deficient;
- Maoke & another v Telkom (SOC) Ltd & another (2020) 41 ILJ 2414 (GP) where the court stated at para 28:
There is a tension between the judgment in Pretorius on the one hand and the judgments in SANDU, NEHAWU and NAPTOSA on the other. After all, SANDU concerned s 23(5), which does not oblige the legislature to pass any legislation. SANDU also endorsed the more general principle arising from NAPTOSA. And NEHAWU concluded that the LRA gives effect to s 23(1) and that the contours of unfair labour practices should primarily be left to the legislature and the specialist tribunals in terms of the LRA. SANDU, NEHAWU and NAPTOSA are not cited or discussed in Pretorius. Pretorius is, however, the latest pronouncement on the topic from our highest court.
[29] Pretorius was decided on exception, and the court in that matter was anxious not to close the door on potential, novel claims in circumstances where all the facts had not yet been placed before the court and the outer contours of the principle of subsidiarity had not been fully defined. …
[30] The Constitutional Court did not offer detailed guidance as to the test to be applied to assess whether subsidiarity can find any application in the context where a party claims that conduct which falls outside the definition of an unfair labour practice in the LRA (as was the case in Pretorius) is actionable under the Constitution. Given, however, that the court was prepared to send the matter to trial, it is plain that there is no peremptory bar against relying directly on s 23(1) of the Constitution rather than challenging the constitutionality of the LRA. This appears to be reinforced by academic commentary. John Grogan writing in the Bill of Rights Handbook states that a person may rely directly on s 23(1) ‘if the LRA does not provide for the unfair labour practice complained of. For example, the unfair labour practice definition makes no mention of unfair transfers’” - The court in Kapari & others v Office of the Chief Justice & another (2020) 41 ILJ 2473 (LC) disagreed with Maoke finding that a claimant may not rely on Constitution directly without having to show that the LRA 1995 deficient. This is set out at para 15:
“To disregard the principle of subsidiarity and grant access to this (and other superior courts) on the basis of a direct application of the constitutional right to fair labour practices raises significant issues of principle. Halton Cheadle, who was instrumental in drafting both the LRA and the Constitution, observes that a right to fair labour practices is ‘an odd right to include in a Bill of Rights’ and that its insertion into the interim Constitution was part of a package of provisions to secure the support of the public service for the new constitutional dispensation, and in particular, the restructuring and transformation of the public sector (Davis, Cheadle & Haysom Fundamental Rights in the Constitution: Commentary and Cases at 212).
Should the constitutional right to fair labour practices be held to extend beyond the traditional triad (ie to test the validity of legislation that gives effect to the right, to interpret that legislation and to develop the common law), and should it become the basis for the development of new, substantive rights, there is a clear danger that the finely balanced agreement that the LRA represents may be unravelled by well-meaning but enthusiastic judges. This is especially so where persons covered by the legislation concerned seek to develop a definition of unfair labour practice beyond that which already exists. Not least, there is the prospect of a ‘two-stream’ development of labour law, an issue that the LRA sought to eliminate and address by establishing a specialist labour court.”
6. Conclusion
No doubt, and as always with our labour law amendments, reached often as a result of compromise, the unintended consequences of this amendment will find its way through the various courts in due course.
Should you need advice on a potential unfair labour practice dispute, contact our team at Garlicke & Bousfield.
[i] National Entitled Workers Union v Commission for Conciliation, Mediation & Arbitration & others (2007) 28 ILJ 1223 (LAC).
[ii] National Union of Health and Allied Works v University of Cape Town & others (2003) 24 ILJ 95 (CC) at para 33.
[iii] National Entitled Workers Union v Commission for Conciliation, Mediation & Arbitration & others (2003) 24 ILJ 2335 (LC) at 2339 B – I.
[iv] (34) Amendment of unfair labour practice definition delayed for public service
“(1) Notwithstanding the repeal of section 186(2)(a), an unfair act or omission that arises between an employee and an employer contemplated in sub-item (2) that involves unfair conduct relating to promotion remains in force for a year after this Act comes into force in order to permit those employers and trade unions to conclude collective agreements to regulate promotion and the resolution of disputes concerning promotion.
(2) The employers to whom sub-item (1) applies are:
(a) employers within the public service, as contemplated in section 8 of the Public Service Act, 1994 (Proclamation No.103 of 1994);
(b) employers within local government;
(c) employers covered by the Employment of Educators Act,1998 (Act No. 76 of 1998); and
(d) the South African Police Service.
(3) Any dispute that arises during the period referred to in sub-item (1) must be dealt with as if section 186(2)(a) has not been repealed.”
Tel: +27 21 023 4262 Email: michelle.posemann@gbcape.co.za