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This article is an informative yet easily digestible summary of The Labour Relations Act South Africa which is guided by Section 27 of the Constitution.
The Labour Relations Act entrenches the rights of workers and employers to form organisations for collective bargaining. In conjunction with the Basic Conditions of Employment Act, it also safeguards social justice in the establishment of rights and duties of employers and employees, regulates the organisational rights of trade unions, and deals with strikes and lockouts, workplace forums and other ways of resolving disputes. Through the Commission for Conciliation Mediation and Arbitration (CCMA), Labour Court and Labour Appeal Court it also deals with strikes and lockouts, workplace forums and other ways of resolving disputes.
The Labour Relations Act applies to employers, employees, trade unions and employer organisations. However, it does not apply to members of:
Hence, the Labour Relations Act covers the laws that govern labour in South Africa and is guided by Section 27 of the Constitution, which entrenches the rights of workers and employers to form organisations for collective bargaining.
In terms of the Act, all employees and employers have freedom of association which invariably means that they reserve the right to form, join and participate in the activities of registered organisations and that their membership means that they cannot be discriminated against.
Unions that are registered with the Department of Labour (DoL) are overseen by constitutions that abide by the principle of calling for a ballot prior to holding a strike or lockout. Within the union, they also rule against racial as well as gender discrimination. While organisations do not have to be registered with the DoL, registered unions however, are entitled to more organisational rights than otherwise.
Trade union representatives reserve the right to carry out the following activities provided that such do not disrupt work activities.
Should a certain number of trade union members, that is, not less than 10 exist within the workplace, representatives can be elected to exercise organisational rights.
The higher the number of members a trade union has the higher the number of representatives it can choose, hence the more rights it will have in the workplace. Should a union have organisational rights in the workplace its representatives will be entitled to oversee certain functions as follows:
Union representatives are also entitled to a reasonable period of paid leave in order to perform such tasks.
Registered trade unions need to first follow the correct procedure in order to exercise organisational rights within the workplace. Employers should be given fair warning of the union’s intention to exercise its rights and the union should prove that there is adequate support with respect to its endeavours within the organisation.
In the case where an agreement cannot be reached in terms of granting organisational rights the matter can be referred to the CCMA. A commissioner will be appointed in an attempt to resolve the dispute through conciliation and if the dispute cannot be resolved either party can request that the matter be settled through arbitration.
Instead of approaching the CCMA a union may choose to strike. However, should it do so it will need to wait for a period of one year prior to requesting the CCMA to grant organisational rights.
Two types of agreements provide additional security and boost the bargaining power a union has.
The agency shop agreement is a system whereby non-union employees are required to pay a certain amount of money into a special fund as a result of them benefiting from the union’s activities in the workplace or sector.
The closed shop agreement entails that the employer and union both agree to compulsory union membership. Those workers who do not wish to join a union can face dismissal and expulsion from the union will also result in dismissal.
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When employees refuse to belong to a union on the grounds of conscience they are referred to as conscientious objectors. In this case, they can request that their contribution be paid into a fund managed by the Department of Labour (DoL). Where a closed shop agreement is concerned conscientious objectors who are dismissed may challenge their dismissal in the Labour Court. Should the Labour Court find in favour of the objector, the union and not the employer will be required to pay due compensation.
Should at least one third of the employees sign a petition to end the agreement at least three years after a closed shop agreement was made a ballot should be held to establish whether the agreement should continue.
The Labour Relations Act promotes what is termed: centralised collective bargaining which describes employers in a sector or area of work who join forces to bargain with one or more unions who may be representing their employees. For instance, a group of mining companies may join forces in order to negotiate with mineworkers’ unions.
Three systems are involved in collective bargaining.
The collective agreement is a simple agreement between an employer, for example, the Chamber of Mines and a union/s, for example, the National Union of Mineworkers. The collective agreement only affects these two parties concerned.
A bargaining council agreement covers a wide range of issues for example wages, benefits and grievance procedures and extends to all employers and employees within the boundaries of the council’s representation provided that certain requirements are adhered to.
A statutory council is a weaker version of the bargaining council. It cannot be extended to any parties external to the council without the approval of the Minister of Labour.
Set up by Section 35 of the Act, the Public Service Co-ordinating Bargaining Council (PSCBC) is one of the most important bargaining councils and is responsible for negotiating common issues among public service employees. It has the right to establish additional bargaining councils for various sectors involved in public service.
The Labour Relations Act also makes provision for workplace forums that encourage all employees, including non-trade union members to engage in promoting their own interests in the workplace. Workplace forums comprise elected workers who engage with interested parties regularly to discuss conditions in the workplace. Such issues handled by workplace forums are better suited to resolution through consultation as opposed to collective bargaining, for instance, education and training, job grading, criteria for increases or bonuses, product development plans and mergers or transfers of ownership.
Workplace forums also have the right to present other proposals to the employer which should be given due consideration. The employer must provide the forum with concrete reasons should such proposals be rejected.
The aim of workplace forums is to establish a dialogue in the workplace that will boost efficiency in the workplace and employers can consult workplace forums regarding various issues. While workplace forums do not remove the employer’s right to make unilateral decisions, they increase employee representation in the workplace.
Joint decision-making issues refer to certain workplace issues that are set aside by the Act which means that employers are required to consult with workplace forums regarding these particular issues as follows:
N.B. Did you know? In terms of the Labour Relations Act employees cannot strike over joint decision-making issues
As prescribed by collective agreements between employers and representative trade unions, issues can either be added to or removed from this list.
As far as such issues are concerned agreement must be reached otherwise they should be referred to the CCMA. Should the matter fail to be resolved the employer can request that it be resolved through arbitration.
Employees may not strike over joint decision-making issues.
The setting up of a workplace forum is restricted to a representative and registered trade union or group of unions and a workplace forum may only be established in a workplace consisting of more than 100 employees. The process is overseen by the CCMA who appoints a commissioner to assist both parties in coming to an agreement in terms of the functions of the forum. Should agreement not be reached the CCMA will establish a forum that abides by the rules of the Act.
Guidelines for the constitution of a workplace forum, in particular the process of electing a workplace forum can be found in Schedule 2 of the Act.
Special rights are assigned to trade unions who are recognised by employers as the bargaining agent for all employees. In this case, they may apply to the CCMA to set up a trade union based workplace forum which means that the union can appoint forum representatives without holding an election.
A workplace forum can only be dissolved if there is a private agreement that allows for this. Should there be no private agreement in place, a workplace forum can only be dissolved if a representative from the trade union requests a ballot that results in a majority vote in favour of the dissolution of the forum.
Workplace forums operate by conducting three types of meetings.
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All industrial action, including strikes, lockouts and picketing is regulated by the Labour Relations Act. The Act allows for the constitutional rights of employees to strike and provides recourse to employers to seek recourse via lockouts.
Disputes over matters of mutual interest between employers and employees may involve strikes and lockouts. Such include:
A lockout takes place when an employer decides to withdraw work from employees or closes the workplace during a labour dispute.
Refusing to work only constitutes a strike if two or more workers participate in the action. As long as the refusal to work has a common work-related purpose, the workers concerned may work for different employers. For example, a domestic worker cannot strike alone yet mineworkers working for different employers are able to do so.
Varying degrees of strike action exist, including:
Two types of strike action exist:
The first involves protected strikes which provide workers with a certain degree of security in the sense that they cannot be dismissed for striking unless they engage in activities involving misconduct during the strike and employers cannot get a court interdict to stop the strike. Employers are also not allowed to seek damages due to production losses during the strike and they must continue to provide food and accommodation should such form part of the employees’ wages, although employers can reclaim such funds by applying to the Labour Court once the strike has ended.
In terms of the Labour Relations Act workers must follow certain steps in order to commence a protected strike.
Union members may force a registered union to hold a ballot prior to holding a protected strike. A special procedure for disputes also exists which concerns refusals to bargain. In such instances workers must obtain what is termed an advisory award prior to the strike which cannot force parties to bargain.
There are certain situations whereby workers do not need to follow procedure. Such include:
If proper procedure is not followed or if any of the following apply a strike will not be protected:
A lockout takes place when an employer prevents employees from entering the workplace in an attempt to force them to accept a demand. As with strike action, there are protected lockouts and unprotected lockouts.
In the case of a protected lockout workers cannot apply to the court to get an interdict against the action and the lockout does not constitute a breach of contract on the part of the employer. As is the case with protected strikes employers are not required to pay wages while a protected lockout is underway and employees cannot sue their employers for any losses sustained. Nevertheless, an employer cannot dismiss an employee who has been locked out and replacement labour can only be hired if the lockout is in response to a strike and for the duration of the lockout. As with protected strikes, the same rules apply to food and clothing.
In order for a lockout to be protected, employers must follow proper procedure – which is the same as the procedure for holding a protected strike:
As with protected strikes, there are certain cases in which this procedure does not have to be followed. Such include:
Only a registered trade union has the right to authorise a picket and it can only be held in a public place outside of the workplace, unless the union has the employer’s permission to picket. The picket must be peaceful and must follow the Code of Good Practice on Picketing issued by NEDLAC.
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An employee can only be dismissed for misconduct, incapacity or business-related (i.e. operational) reasons. However, proper procedure for dismissal must always be followed.
Misconduct entails an employee having deliberately or carelessly broken a rule at the workplace, for example, stealing. In such cases, a person may only be dismissed once the employer has followed proper procedure for dismissal due to incapacity.
Incapacity means that the worker has been unable to perform his or her duties properly because of ill health or lack of skills, that is inability. If an employee is not doing their job properly, he or she can only be dismissed once the employer has followed correct procedures.