“The process of regulating the relationship between the parties to the employment contract”

Employment law

Outcomes & References

Explain purpose role and functions of LRAct.– Freedom of association– Collective bargaining– Strikes & lockouts– Workplace forums– Dispute resolutions– Unfair dismissals and unfair labour practices

• Text book ~ Pages 87 – 107

THE LABOUR RELATIONS ACT no 66 OF 1995

Provides mechanisms and structuresTo manage and resolve conflict

Text book: Pages 87 ~ 107

Reading and interpreting law

• Read and gain an understanding • Read the question and look for your

answer in the piece of law• When answering ………..

– Section 14 (1) states that an employee must be given an hour meal time after working continuously for five hours.

– , therefore the employee is within the law for asking for an hour lunch break

• The union and the company agree in writing to reduce the lunch break to thirty minutes. Would Kasthuri be correct if She complained that management were unfair by not allowing her a full hour lunch break?

Exercise

Divide into 2 groups

Employer Union

1. What is your roles and duties?

2. How will you use the law to your advantage

To advance economic development, social justice, labour peace & the democratization of the work place:

1. To support employee’s constitutional rights.

2. To support the International Labour Organisation.

3. To provide for collective bargaining.

4. To promote participative management, and the resolution of disputes.

*CHAPTER 1 : PURPOSE OF THE ACT*CHAPTER 1 : PURPOSE OF THE ACT

CHAPTER 2 : FREEDOM OF ASSOCIATION & CHAPTER 2 : FREEDOM OF ASSOCIATION & GENERAL PROTECTIONS:GENERAL PROTECTIONS:

1. Grants employees the right to join a trade union

2. Grants employers the right to join an employers association

3. Grants work seekers full protection of the law

CHAPTER 3 : COLLECTIVE BARGAININGCHAPTER 3 : COLLECTIVE BARGAINING

Promotes collective bargaining by:Promotes collective bargaining by:

Allowing trade union access to the workplace

Deductions of trade union subscriptions

The election of shop stewards

Leave for trade union activities

Duty of employer to disclose information during collective

bargaining

Formation of agency shop and closed shop agreements

Establishment of Bargaining and Statutory Councils

Agency shop agreement Employer and representative trade union may agree to:

• Allow deductions of an agency fee for non union members

• Employee does not have to join the union

• Paid into separate account of the union

• May not be used for political purposes

• Used for advancing socio economic interests of employees

Closed shop agreement

Employer and representative trade union may agree to:

• All members to become member of the trade union

• A two thirds majority must vote in favour

• May not be used for political purposes

• Used for advancing socio economic interests of employees

Bargaining CouncilsDEFINITION:Employers and Unions form bargaining council to deal with collective

agreements, generally industry based.

POWERS & FUNCTIONS;1. Agree and enforce collective agreements; 2. Resolve labour disputes; 3. promote and establish training and education

schemes; 4. Establish and administer benefit schemes, pension,

medical, sick pay etc5. make and submit proposals on policies and laws that

affect a sector or area.

STATUTORY COUNCILAn interim bargaining council

*Chapter 4: Strikes & lockouts*Chapter 4: Strikes & lockouts

Strike: “partial or complete refusal or retardation of work for the purpose of remedying a grievance or dispute of interest”

Lockout: “exclusion of the workers by an employer to force employees to accept a demand”

A protected strike is where the strikers have followed all legal steps and procedures.

Right to strike/lockoutRight to strike/lockout

Every employee has the right to strike & employer the recourse to lockout if:

1. The dispute has been referred to a council or CCMA

2. A certificate stating that it remains unresolved has been issued, or

3. 30 days has elapsed

4. At least 48 hours written notice of commencement of the strike

5. If the state is the employer 7 days written notice must be given.

Limitations on the right to strike/lockoutLimitations on the right to strike/lockoutNo person may take part in a strike if:

1. A collective agreement prohibits a strike2. If an agreement requires dispute to be resolved via

arbitration3. The issue is to be referred to the labour court4. If person is employed in an essential or maintenance

service.

Essential services: ~ are those that society cannot do without because of the potential loss of life.

Maintenance services:~ are those that if interrupted would have the effect of material physical destruction of any working area, plant or machinery.

Secondary strikesSecondary strikes

Also known as sympathy strikes, where employees of another employer go out on strike in support of the original strike.

To be protected by law:• The original strike needs be protected

• 7 days written notice must be given

• The secondary strikers employer must have some effect on the primary employer

PicketingPicketing

Strikers in a protected strike have the right to gather support for their cause through peaceful picketing using placards.

– In a public place outside the companies premises, or if agreed

– On the premises of the company

They may not intimidate the public nor company service providers

Replacement labour Replacement labour (Scabs)(Scabs)

• May use temporary labour to ensure the survival of the company

• MAY NOT use replacement labour– Where workplace is deemed a maintenance service,

or – Where employees have been locked out by management

CHAPTER 5 : WORKPLACE FORUMSCHAPTER 5 : WORKPLACE FORUMS

Allows for workplace forums in organizations with 100+ Allows for workplace forums in organizations with 100+ employees:employees:

1. To seek and promote interests of all employees in workplace

2. Have to be initiated by a representative trade union

3. Consult on issues such as:

Restructuring, changes of work, job grading, education and

training, retrenchments, introduction of new technology,

export promotion

CHAPTER 6 : TRADE UNIONS & EMPLOYER CHAPTER 6 : TRADE UNIONS & EMPLOYER ORGANIZATIONSORGANIZATIONS

Allows for the registration and regulation of Unions and Allows for the registration and regulation of Unions and Employer Associations;Employer Associations;

Processes rules and regulations of registering, and running of

TU’s and EA’s

CHAPTER 7 : DISPUTE RESOLUTIONCHAPTER 7 : DISPUTE RESOLUTION

Allows for dispute resolution via;Allows for dispute resolution via;

CCMACCMA = is for quick resolution of non technical legal disputes

LABOUR COURTLABOUR COURT = superior court deals with more technical legal disputes

LABOUR APPEAL COURTLABOUR APPEAL COURT= final court of appeal

*Commission for Conciliation, Mediation and Arbitration

FUNCTIONS:

1. Resolution of disputes through conciliation

2. Resolution through arbitration

3. Assist in establishing workplace forums

4. Make arbitration awards

5. Advice and training on, collective bargaining forums, disciplinary procedures, prevention of disputes, affirmative action, restructuring, retrenchments, sexual harassment

CHAPTER 8 : UNFAIR DISMISSAL AND UNFAIR CHAPTER 8 : UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICESLABOUR PRACTICES

Provides guidelines in dismissing employees and what Provides guidelines in dismissing employees and what constitutes unfair labour practices;constitutes unfair labour practices;

1. Automatically unfair dismissals

2. Unfair labour practices

3. Dismissal guidelines based on;

Operational reasons

Misconduct

Incapacity

~ Poor performance

~ ill health or injury

AUTOMATICALLYAUTOMATICALLY UNFAIR DISMISSALS UNFAIR DISMISSALS s187s187

1. Due to participation in a protected strike

2. Refusal to do work of any person participating in a protected strike

3. To compel employee to accept a demand made by ER

4. For exercising his rights as per the act

5. The EE’s pregnancy or intended pregnancy

6. That the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, age, disability, religion, political opinion, marital status, family responsibility, etc

Dismissal Dismissal s186(1)s186(1)

1. Termination of a contract with or without notice by the employer

2. Where an employee reasonably expected a renewal of a contract, but the employer offered a renewal on less favourable conditions or did not renew.

3. An employer does not allow a female to return to work after maternity leave

4. Where after dismissing a group of employees for the same reason the employer offers to re-employ a select few

5. An employee is forced to resign due to the company making employment intolerable

6. Where an employee terminates employment after a business transfer, due to the employer offering work that is substantially less favourable than the previous employer

*UNFAIR LABOUR PRACTICE *UNFAIR LABOUR PRACTICE s186(2)s186(2)

1. Unfair conduct by employer – promotion, demotion, probation or training relating to benefits of employee.

2. Unfair suspension or unfair discipline short of dismissal

3. A failure to reinstate or re-employ a former employee in terms of an agreement

4. An occupational detriment in contravention of the protected disclosures act

Thank you

Good meeting you chaps!

Revision lecture, 12th July

Cheers,

Colin