The National Education Health and Allied Workers Union v The Minister for Trade, Industry and Competition and Another

The South African Bureau of Standards (SABS), the second respondent, was placed under administration in July 2018 after losing thousands of customers and millions of Rands in revenue. On 10 March 2021, SABS issued a notice in terms of section 189(3) of the LRA, contemplating retrenchments based on operational requirements and proposing a consultation process facilitated by the CCMA. The applicant trade union, NEHAWU, participated in three facilitation meetings held on 8 April, 21 April, and 21 May 2021. During the second meeting, the union staged a walkout before SABS could present its business case. At the third meeting, after the facilitator ruled against the union's demand that SABS withdraw the section 189 notice, the union left the meeting. The consultation process was extended by 30 days from 15 May 2021. On 28 May 2021, NEHAWU brought an application in terms of section 189A(13) seeking to declare the consultation process unfair and a sham, and to interdict SABS from retrenching employees.

• Whether the application was premature given that no dismissals had yet occurred
• Whether the employer failed to comply with a fair procedure in terms of sections 189 and 189A of the LRA
• Whether the section 189(3) notice contravened the recognition agreement between the parties
• Whether the employer failed to disclose relevant information to the consulting parties
• When an application in terms of section 189A(13) may be brought
• Whether costs should be awarded against the applicant union

The application was dismissed with costs, including the costs of senior counsel where engaged, to be paid by the applicant union.

1. The 30-day time limit in section 189A(17) operates as an outer limit, not a jurisdictional trigger - applications under section 189A(13) may be brought at any time during the window period between commencement of consultation and 30 days after dismissal. 2. Section 189A(13) confers real-time supervisory jurisdiction on the Labour Court over retrenchment consultation processes, enabling judicial management and intervention during ongoing consultations, not merely ex post facto review. 3. Section 189A(13) is aimed at securing the consultation process in the interests of a fair outcome and is properly confined to instances of substantial failure or refusal to comply with statutory requirements, not unjustifiable intransigence by the employer. 4. Where a facilitator is appointed to chair the consultation process, their broad powers and duties under section 189A and the Facilitation Regulations ordinarily leave little scope for criticism of employer conduct regarding procedure, as facilitators are obliged to manage the process and ensure statutory requirements of procedural fairness are observed. 5. The LRA requires employers and unions to engage in a meaningful joint consensus-seeking process during retrenchment consultations, which is undermined by belligerent attitudes and refusal to engage constructively in the process.

Van Niekerk J observed that section 189 invites a philosophy of social partnership and the methodology of joint problem-solving to pioneer different outcomes, requiring shared interest in probing the employer's business analysis, coming to terms with viability measures, and addressing sympathetically and sensibly what this means for employees. The judge commented that the union's conduct during the consultation process and in instituting these proceedings demonstrated none of these values and ultimately subverted the purpose of sections 189 and 189A. The judge also noted that disputes regarding disclosure of information should be resolved through the self-contained dispute resolution process in section 16 of the LRA, or through the facilitator's powers under Regulation 5 of the Facilitation Regulations to order disclosure of relevant documents, with any dissatisfaction subject to urgent review if necessary. The court observed that little purpose would be served by dual consultation processes where an employer has clearly indicated that retrenchments are contemplated and invoked section 189 of the LRA, even where a recognition agreement provides for consultation on material business changes.

This judgment clarifies important procedural aspects of section 189A of the LRA, particularly regarding the timing and circumstances in which applications for judicial oversight of retrenchment consultations may be brought. It establishes that section 189A(13) applications need not wait for dismissals to occur but may be brought during ongoing consultation processes to enable real-time judicial management. The judgment emphasizes the philosophy of social partnership and joint problem-solving underlying sections 189 and 189A, and warns against using section 189A(13) as a tool to thwart legitimate retrenchment processes rather than to secure procedural fairness. It clarifies the relationship between recognition agreements and statutory consultation obligations, and underscores the central role and broad powers of facilitators in managing retrenchment consultations. The judgment also sends a strong message about the consequences of bad faith participation in consultation processes, as reflected in the costs order against the union.