ABV List questions:
Chapter 1
Employment Relationship will be improved by:
1.Mutual interests
2.Mutual support
3.Understanding trust
4.Meaningful communication
5. Shared goals and values
Discuss the employment relationship (factors to discuss):
1. What is the relationship (Relationships between people within a work
situation)
2. It is forced as a human relationship
3. How it can be improved
4. It has uniqueness
5. Economic bases of the relationship
6. Impersonal relationship
7. The relationship is complex and paradoxical
How can the negativity of the employment relationship be
increased:
1. A markedly uneven distribution of wealth
2. If employees cannot see themselves as being advantages by the
increased profitability of the undertaking
3. If too much power rests with some of the participants
4. If, in extreme, employees regard the situation as an ‘unfair’ deal
brought about by an ‘unfair’ system
Factors impacting the interactions between the parties in the
employment relationship:
1. Degree to which parties acknowledge that they have [common
interest] and agree to co-operate with one another
2. Level of [conflict] in the relationship [and] the emphasis placed on
[collective bargaining]
3. Distribution of power (dynamic) between the parties and the type
of power applied
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4. Degree to which participants, and union members in particular, are
free to make their own decisions versus their allegiance to the
collective ([freedom of individual vs allegiance to collective])
The five forms of power:
1. Coercive power → threat/punishment/harm [least desirable & most
primitive]
2. Reward power → ability to bestow favours on other person [power
of not bestowing reward = coercive power]
3. Legitimate power → obtained by being in position of authority [relies
heavily on use of punishment and reward]
4. Expert power → resting on knowledge and experience
5. Referent power → obtained when others identify with person/value
system and look up to him
Conflict centres on matters such as:
1.
2.
3.
4.
5.
Role and status definition
Decision-making powers
Accountability structures
Flexibility and control
Conflict of personal values, goals, beliefs and ideologies
Amount of power wielded by either party at any particular time
is dependent on certain power variable. Most important:
▪
▪
▪
▪
Dependence
Importance
Scarcity
Non-substitutability
Intrinsic factors that regulates the employment relationship
1.
2.
3.
4.
Custom and tradition
Legislation
Mutual agreement
Ethical considerations: Trust, integrity and fairness
Trust is achieved by:
1.
2.
3.
4.
Respect
Faith in integrity
Recognition of value, power, ability and legitimacy
Assurance that neither will abuse position
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5. Agreement → both view situations from balanced perspective, will
not attempt any treason, will keep word and act consistently in light
of own beliefs and values
Criteria for fairness (between parties):
▪
▪
▪
▪
▪
▪
Exchange and balance
One should not obtain benefits to loss of other
Equitable exchange of substance and behaviour
Should receive equal treatment and consideration
Same criteria and judgement should apply
Treatment should be consistent
External influences that impact the employment relationship:
1.
2.
3.
4.
Socio-political system
Societal influence
Economic dispensation
Influence of Trade Unions
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Chapter 2
Major components of LR system:
1.
2.
3.
Parties to relationship (Employer, Employee, State)
Processes → Collective Bargaining & workers participation
Legal system governing the relationship
Differences in legal frameworks found in:
o Varying degrees of compulsion
o Different forms of protection granted to employers and employees
o Differences in application of freedom of association and rights to
bargain collectively
o Differing concepts of fairness and differences in legislation pertaining
to this concept
Two main ideological poles that impacts on LR
1. Individualism - individual shapes society
2. Communitarianism - society shape individuals
Role of State
1. Represents the society at large
2. Perceived as being embodied in systems of government → state/
government the same
3. Democratic systems → government elected by people, but
democracy based on principle majority rule → government elected
not representative of those who constitute state (does not represent
all)
4. Can be pro-labour or pro-capital → NB → determine degree of
interference in conduct of relationship
Voluntarism VS Mandatorism:
•
•
Principle of voluntarism presupposes minimal or no interference in
conduct of relationship [societies operating
to <> degree on free-market principle]
Principle of mandatorism rests on maximal government control of
all aspects of ER [in practise, nowhere in
world]
Mandatory elements in voluntary system:
1. Establishing legal framework for society → impacts on ER
2. ER unfair (if left to main participants)
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3. State steps in to restore power balance
4. Conduct of ER impact society and economy
5. LR involves politics
Degree and type of interference in LR by particular government
will depend on:
-
Ideological base
Political objectives
Socio-political and economic circumstances
Strength of union movement
Forms of State interference
1.
2.
3.
4.
5.
6.
Market individualism
Institutionalised voluntarism
Pro-capital interventionism
Corporatism
Pro-labour interventionism
Pro-labour mandatorism
Roles (categories) adopted by the state:
1.
2.
3.
4.
5.
6.
7.
Employer
Legislator
Conciliator
Regulator
Advisor
Judiciary
Police
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Chapter 3
Those which establish basic principles for conduct of the
relationship:
1. The Declaration of Philadelphia
2. Convention Concerning the Freedom of Association and Protection
of the Right to Organise
3. Convention Concerning the Application of Principles of the right to
Organise and to Bargain Collectively
The three main parts of the Declaration of Philadelphia
• Part 1: Labour is not a commodity; Poverty anywhere constitutes a
•
•
danger to prosperity everywhere
Part 2: Affirms ideological premise of ILO
Part 3: Promoting full employment and raising the standards of living
of all people
According to the declaration of Philadelphia, how can the
standards of living be raised:
1.
2.
3.
4.
5.
Promoting training
Facilitating the transfer of labour
Setting policies regarding wages and conditions of service
Recognising the right to collective bargaining
Promoting c-operation between workers and employers in deciding
on social and economic measures
6. Establishing social security measures
7. Instituting comprehensive medical care
8. Protecting the life and health of worker
9. Making provision for child welfare and maternity protection
10. Making provision for adequate cultural facilities for all employees
What are the principles of ILO Conventions 87 and 98 reflected
in South African Labour Legislation:
• Convention No 87: Concerning the Freedom of Association and
Protection of the right to Organise
• Convention No 98: Concerning the Application of the Principles of the
right to Organise and to Bargain Collectively (safeguard against antiunion discrimination)
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Sections in Bill of Rights which affect labour relations and
labour legislation
• Section 9 → Equality - No person shall be unfairly discriminated
against, directly, indirectly (Affirmative action initiatives will not be
regarded as unfair discrimination)
• Section 10 → respect for and protection of dignity
• Section 14 → Privacy (home, property, possessions, communication)
• Section 15 → Freedom of speech and expression
• Section 17→ Assembly, demonstrate with others peacefully and
unarmed and to present petitions
• Section 18 → Freedom of Association
• Section 22 → freedom of trade, occupation and possession
• Section 23 → Labour relations
• Section 26 → right to freely engage in economic activity and to
pursue a livelihood anywhere in national territory
• Section 29 → an environment which is not detrimental to health or
wellbeing
Section 23 relates specifically to labour relations and provides
that
Everyone has right to fair labour practises
Every worker has right to form/join/participate TU & strike
Every employer has right to form/join/participate in EO
Every TU & EO (workers and employers) have right to organise,
bargain collectively
5. Workers have right to strike for purpose of CB
6. National Legislation (employers recourse to lockout for purpose of
CB shall not be reduced) → subject to limitations
1.
2.
3.
4.
What is NEDLAC:
NEDLAC ➔ The National Economic Development and Labour Council
• to be bringing together of labour, business, government and
development actors In order to “ensure consensus on all matters
relating to economic policy”
and to “consider all proposed labour legislation”
The functions of NEDLAC:
1. Promote economic growth
2. Consensus on socio and economic policy
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3. Consider all labour legislation
4. Consider changes to society
5. Formulate co-ordinated social/economic policy
Four chambers of NEDLAC:
1.
2.
3.
4.
The Labour Market Chamber
The Trade and Industry Chamber
The Public Finance and Monetary Policy Chamber
The Development Chamber
LRA provides for certain individual rights:
1. Right not to be dismissed without valid reason and fair hearing
2. Right not to be victimised for trade union membership
3. Right not to be arbitrarily and peremptorily retrenched
Core conditions of the Act:
1.
2.
3.
4.
5.
6.
7.
Max working hours (45)
Family and responsibility leave
Health and safety
Child labour
Sick leave
Maternity leave
Annual leave
Contracts which are voidable at Common Law:
Cannot conclude contracts which are:
- Illegal (against the law)
- Immoral (against morals of society)
- Contrary to public policy
Contracts are voidable where consent of one party improperly obtained
by:
- Misconduct
- Coercion
- Undue influence
What remedies are there for breach in contract:
1.
2.
3.
4.
5.
Damages
Specific performance
cancellation
interdict
criminal sanction
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Reasons for termination of contract:
-
Reasonable notice by either party
Consent of both parties
Death or incapacity of employee
Insolvency of employer
LRA provisions
Common Law duties of Employer:
•
•
•
•
•
Pay the employee
Provide safe and healthy working conditions
Provide work for employee
Not make employee do work junior to status for which employed
Not contract employee’s service to another employer without
employee’s consent
Common Law duties of Employee:
•
•
•
•
Perform his work faithfully and diligently
Obey reasonable orders given in normal course of employment
Not deal dishonestly with the property of the employer
Not compete in his private capacity with the business of the employer
Employee has right:
1.
2.
3.
4.
5.
To remuneration
To work
Not to be demoted
Not to be forced to work for any other employer but his own
To safe and healthy working conditions
The employer has right to expect that employee:
1.
2.
3.
4.
Does the work to best of his ability
Obeys reasonable orders
Is honest
Does not compete with employer’s business
Functions of the Employment Equity Act (EEA)
1. Employers must take steps to end unfair discrimination
2. Unfair discrimination is prohibited
3. Harassment is unfair discrimination
4. Prohibition of unfair discrimination is applicable at all levels, policies
and practices
5. Medical testing is prohibited unless justified
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6. Discrimination is not unfair where inherent requirements for job are
applicable
7. Employers must prepare an Employment Equity Plan (EEP) if they
employ more than 50 people
8. The EEP must specify specific affirmative action measures
9. Designated employers must report to Dept of Labour (DOL)
10. Enforcement of equity obligations by inspectors of Labour Court
11. Employees are protected against victimisation
12. Commission for Employment Equity is established
Page 10 of 21
Chapter 4
Classification of Trade Unions (TU)
1. Occupational unions
1.1 Craft unions (Example: South African Typographical Union)
1.2 Promotion unions (Example: Footplate Workers’ Association )
1.3 Unskilled and semi-skilled unions
1.4 White collar and professional unions (Example: Insurance and
Banking Staff Association)
2. General unions
3. Industrial / sectoral unions
Advantages of Industrial / sectoral unions:
1.
2.
3.
4.
Leads to stronger unions
Helps to eliminate inter-union competition
Reduces number of unions with which employers have to bargain
Brings correspondence between union organisation and employer
organisation
5. Facilitated centralised bargaining
6. Leads to improved industrial sectoral planning
Trade union objectives
1.
2.
3.
4.
Meet their major goals
Maintaining and improving the economic status of its members
Job security
Socio-political involvement
Trade union major goals:
All are related to the concept of “decent work” for their members:
- Higher & equitable salaries
- Job security & Regulation
- Protection from arbitrary and discriminatory action
- Training & development of members/employees
- Access to sustainable pension/ provident funds
- A safe & healthy working environment & access to health care
- Reasonable working hours that contribute towards a work life
balance
- Equality in the workplace with regards to gender, parental and other
rights
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The Role of the Shop Steward
What does he do?
1. He performs union duties (in the course of his employment)
2. He is the one office bearer who can directly represent workers’
interests towards both management and the union.
3. He acts as a link between the union and the workers & the union
and management.
Qualities of a Good Shop Steward
He/she should have:
• Respect & trust of the union, fellow-employees and management
• Be an effective communicator
• Be able to make independent, objective judgements and to reach
rapid decisions
• Be committed, diligent and fair minded
• Be knowledgeable in union, employee and even management
affairs
Shop Steward Duties
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Recruiting new members
Assisting and representing members in grievance and disciplinary
procedures
Consulting and negotiating with management on plant level
matters
Obtaining mandates from members before and during these
negotiations.
Assisting with the organisation of ballots, like strike ballots
Ensuring that management adheres to wage and other
agreements
Organising and attending union meetings at plant level and branch
level
Participating in workplace forums or committees
Participating in health and safety committees
Advising fellow-employees
Keeping employees informed of union policies and plans
Keeping the union informed of the situation in the organisation
Collecting trade union dues
Working at branch level
Shop Steward Rights
1. The shop stewards are allowed greater flexibility than other
employees
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2. Are permitted to leave their posts at short notice if a workplacerelated matter requires attention.
3. As employees, they need to ask permission to leave their place of
work, but permission should not be unreasonably withheld.
4. Also, a law or agreement may provide for shop stewards to be given
time off for training or to attend to union business.
What are the functions of an Employer Organisation?
•
•
•
•
•
•
•
•
Provide a forum for the development of a coordinated strategy in
dealing with organised labour
Negotiate with unions for the purpose of standardising minimum
wages & conditions of service &procedures in an industry/sector
Assist members by providing them with information on issues
such as procedures, legislative changes, handling of
labour action and the administration of collective agreements
Provide a coordinated system of employee benefits such as
pension funds and medical aid schemes
Coordinate training in the industry
Lobby government to pass legislation which serves the interests
of employers
Liaise with trade union federations at centralised level over issues
of national interest
Engage the media as a means of promoting support for the
polices and position of the employers’ organisation on
various issues and also counteract any unfavourable publicity
Most common reasons for forming an Employers Organisation:
•
•
•
•
•
Balance collective power of Union(s)
Standardise conditions of service in an industry
Put wages out of competition
Have negotiations conducted by persons with expertise
Have their interests represented at macro-level
Page 13 of 21
Chapter 6
Basic grievance procedure and to deal with grievances
effectively in the workplace
1. Step 1:
The employee verbally raises a complaint with his immediate
supervisor. The supervisor undertakes - investigate the complaint &
to furnish the employee with his opinions & suggestions.
If the employee has difficulty in explaining the grievance, he may, at
this stage, speak through a representative, but this is not usually
necessary.
2. Step 2:
If the employee is not satisfied with the supervisor’s suggestions, he
lodges – with/without the assistance of a representative – a formal
written grievance.
This is for the attention of the supervisor or the next level of
management (e.g section head). The supervisor/section head will:
- Investigate the matter
- Discusses the matter with the employee
- Records his findings &recommendations.
3. Step 3:
If - the employee remains dissatisfied = the written grievance &
report of the supervisor /section head, is given to-next level of
management.
The manager studies:
• Written documents
• Interviews the employee & other persons involved
• Gathers all relevant information.
When he is satisfied & has considered all the aspects:
• He presents his recommendations/proposed solution to the
employee & his/her representative.
• The manager is obliged to report in writing on his investigation,
recommendations & final outcome
• The employee either accept or reject the recommendation.
4. Step 4:
An unresolved grievance is then channeled to the next level of
management (e.g production manager) where procedure is
repeated.
The danger of a dispute now exists - the procedure may allow for a
representative body – a workers’ committee or union – to become
Page 14 of 21
involved in discussions about the employee grievance.
The HR manager/a senior member of the HR department may be
invited to sit in on discussions. (The HR department may already
have become involved in an advisory capacity at an earlier stage.)
5. Step 5:
In final stage :
grievance is brought to the attention of top management.
Discussions held various management representatives the
employee and his representative or delegates from a representative
body.
The meetings = form of negotiations.
If no solution = employee may either back down/declare a dispute.
If he declares a dispute:
The issue will be processed through the plant-level dispute
procedure/through the statutory dispute settlement mechanism
(provide for mediation, arbitration or judicial adjudication)
3 Fair reasons for lawful termination
1. Misconduct (by employee)
2. Incapacity (of employee)
3. Operational requirement (Retrenchment)
Procedural requirements for dismissal due to misconduct
1. Employee must be informed about changes in manner he/she can
understand. Employee should be given sufficient time to prepare for
hearing
2. The union should be consulted before commencing an inquiry into
an employee who is a shop steward or office bearer of the union.
3. The employee must be given a chance to state his/her case.
4. The employee has the right to be assisted by a shop steward or a
fellow employee at the hearing.
5. After the inquiry, the employer should notify the employee in writing
of the decision with clear reasons.
6. If the employee is not satisfied after being dismissed, the employer
has to inform the employee of his/her right to appeal and thereafter
to refer the matter to the relevant council or CCMA within 30 days
or, if it is a later date, within 30 days of the making of a final decision
to dismiss or uphold the dismissal.
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Examples of misconduct
1.
2.
3.
4.
Gross dishonesty (fraud)
Physical assault
Sexual harassment
Persistent and unwanted sexual advances
If employers retrench employees, they are obliged to inform
employees:
❖
❖
❖
❖
❖
❖
Reason for retrenchment
Alternatives considered before reaching decision to retrench
Number of employees to be affected
Proposed method for selection of retrenches
Proposed severance pay & assistance to employees
Possibility of future employment
Substantive fairness
1.
2.
3.
4.
5.
The employee was aware of the rule of conduct that he/she broke
The rule was reasonable/valid
Employees should have been aware of the rule
Employer applied the rule consistently
Dismissal is appropriate step instead of less serious disciplinary
actions
6. Dismissal must take place after repeated offences
7. If serious misconduct then dismissal may be appropriate for a first
offence
8. Each case should be judged on its own merits
Procedural Fairness
1.
2.
3.
4.
5.
The employee was aware of the nature of the offence
The employee must be informed of the charge
The employee was given the opportunity to state their case
The employee has been allowed representation
The employee must be informed of the reason for the decision
given.(In writing)
6. The employee is a union bearer or official the Union must be notified
of the pending action.
Automatically unfair dismissals
1.
Victimisation
Page 16 of 21
2.
3.
4.
5.
6.
7.
8.
9.
That the employee engaged or intended to engage in a protected
(legal) strike or demonstration
That the employee refused or expressed his or her intention to
refuse to perform the work of another employee engaged in a legal
strike
That the employer wishes to force the employee to agree to a
demand related to any matter of mutual interest
That the employee took steps or intended to take steps to enforce
any right or to participate in activities in terms of the Act
That the employee is pregnant (or for any other reason related to
her pregnancy)
That the employer is discriminating against an employee on
arbitrary grounds, including (but not limited to):
o Race
o Gender
o Sex
o Ethnic/social origin
o Colour
o Sexual orientation
o Age
o Disability
o Religion
o Conscience
o Belief
o Political opinion
o Culture
o Language
o Marital status or family responsibilities (such dismissal will not be
unfair, however, if the reason is related to the inherent requirements
of the job or if an employee has reached pensionable age)
The transfer of a contract from an old employer to a new employer,
or any reason related to a transfer
A disclosure made by the employee in terms of the Protected
Disclosures Act
Chapter 12
Page 17 of 21
Reasons why a dispute may arise
1.
2.
3.
4.
5.
6.
7.
Failure to agree to the establishment of a relationship
Disagreement about procedures
Failure to agree on terms & conditions of employment
Failure to abide by the terms of an agreement
Denial of the other party’s rights
Poor treatment of the other party
Any other action/event which negatively affects the relationship
Two types of labour disputes
1. Dispute of rights
2. Dispute of interest
The labour relationship, rights are ensured by:
•
•
•
•
•
Common law
Labour legislation
The terms of the contract
Legally enforceable agreements
Customary practices at the place of work
Typical issues of rights dispute
•
•
•
•
•
•
•
•
The failure of one party to abide by the contract of employment
Failure to implement legally determined conditions & procedures min working hours, prescribed notice periods
Failure to implement the terms of a legally enforceable agreement
The non-implementation of an arbitration award/wage
determination
The transgression of any other legal determination, such as the
prohibition on victimisation or interference with the freedom of
association
Transgression of the common law
A unilateral change in accepted or customary practices
Codified unfair dismissals & labour practices
The three forms of dispute settlement procedures
1. Conciliation
2. Mediation
3. Arbitration
Characteristics of a good mediator:
◦
Be knowledgeable in matters related to negotiations
Page 18 of 21
◦
◦
◦
◦
◦
◦
◦
◦
Be acquainted with the organisational structures, strategies
&attributes of both parties
Have up to date knowledge of Labour legislation and of
collective agreements or determinations
Be conversant with the latest developments in the economic,
socio-political and technological spheres
Be able to exercise tact & diplomacy
Be sensitive to nuances
Possess the necessary powers of persuasion
Be an effective communicator
Be of strong character
Kochan’s mediation process stages:
1. Introduction and establishment of credibility
2. Steering the Negotiation Process
3. Movement towards a final settlement
When is mediation less successful?
•
•
•
•
︎ Conflict has reached a high level
︎ Matters of principle are at stake
︎ The dispute originated from a negative settlement range
︎ The dispute concerns economic issues
Types of arbitration:
1.
2.
3.
4.
5.
Judicial Arbitration
Interest Arbitration
Conventional Arbitration
Final offer / pendulum Arbitration
Issue-by-issue Arbitration
The functions of the CCMA are to:
1. Attempt, by conciliation or mediation, to resolve any dispute
referred to ito the Act
2. Arbitrate on disputes referred to it
3. Provide assistance in the establishment of workplace forums
4. Provide advice regarding procedures ito the Act
5. Assist any party to a dispute in obtaining legal advice, assistance or
representation
6. Offer to conciliate in a dispute not referred to it
7. Accredit Bargaining councils and private agencies
Page 19 of 21
8. Conduct, supervise or scrutinise elections for a union or employers’
association
9. Publish guidelines regarding any matter regulated by the Act
10. Conduct and publish research concerning any matter related to its
work and regarding sexual harassment
11. Compile and publish information and statistics concerning its
activities
Commission also provide advice and training to any party
regarding:
o
o
o
o
o
o
conclusion of collective agreements
workplace forums
the prevention of disputes and grievances o disciplinary procedures
procedures regarding to dismissal
restructuring of workplace
a programme for affirmative action
Chapter 13
Section 213 of Labour Relations Act defines a strike as:
1. “partial or complete concerted refusal to work
2. Or retardation or obstruction of work
3. By persons who are /have been employed by same employer or by
different employers
4. For purpose of remedying a grievance or solving a dispute
5. in respect of any matter of mutual interest between employer and
employee
6. and every reference to work in this definition includes overtime
work, where compulsory or voluntary
Reasons for strike:
1.
2.
3.
4.
5.
6.
7.
8.
General dissatisfaction among employees
Economic concerns
Dissatisfaction with conditions of service
Personal problems
Solidarity with other employees
Lack of consultation
Socio-economic issues
The need to demonstrate strength
Page 20 of 21
Different types of collective action:
1. Economic strikes
2. Grievance strike
3. Demonstration strike
4. Recognition strike
5. Procedural strike
6. Strategic strike
7. Go-slow strike
8. Overtime bans
9. Sympathy or solidarity strike
10. Socio-political strike
11. Grasshopper strike
12. Sit-down strike
Dismissal of unprotected strikers:
◦ Inform employees they are participating in unprotected strike
◦ State clearly what is required (return to work) also “no work no
◦
◦
◦
◦
◦
pay”
Give reasonable time to return (cool off period : at least 48 hours)
State sanction if they don’t return to work, will be dismissed
Ultimatum must be very clear
Give them time to respond to ultimatum
If they fail to return at expiry time of ultimatum HR department
starts preparing dismissal notices
Page 21 of 21