PRESENTATION TO PARLIAMENTARY PORTFOLIO COMMITTEE LABOUR RELATIONS ACT: PRESENTATION TO PARLIAMENTARY PORTFOLIO COMMITTEE

Who is covered by the Act? Almost all employers and employees, jobseekers and former employees. The Act does not apply to members of the National Defence Force, the National Intelligence Agency and the South African Secret Service.

Presumption of who is an employee These factors are whether or not a person is an employee: falls under the control or direction of the employer; works hours which are subject to the control of another person; forms part of an organisation; has worked for another person for an average of at least 40 hours per month over the last 3 months; is economically dependant on the employer; is provided with tools of trade or equipment; or only works for one employer.

Organisations of Employers and Employees Strong organisations are essential for effective collective bargaining. The Act supports and protects trade unions and employers’ organisations The LRA attempts to strengthen trade union organisation in two ways: - by supporting freedom of association rights which enable employees and jobseekers to participate freely in union activities; and by supporting organisational rights which make it easier for unions to organise employees. The LRA also supports the right of employers to join together to form employers’ organisations

Registration of employers’ organisations and unions Employers’ organisations and unions do not have to register with the Department of Labour, but they are advised to do so. If they do not register, there is no guarantee for members that there will be a proper constitution or control over finances. Registration provides some check on abuse, corruption and unconstitutional practices, such as racism. Registration also affects the rights of unions

Requirements for registration there must be provision in the constitution for a ballot of members before a strike or lock-out is called; and there must not be any provision in the constitution that discriminates on the grounds of race or sex. a trade union wishing to register must also be independent A number of founding members who attend the inaugural meeting(s) and complete signed registers indicating their names and places of work The means by which the constitution of the trade union was drafted and adopted Election of an executive committee or council of members and the election of office bearers

Membership of a trade union LRA does not create any threshold for membership The size of membership may be an indication that a trade union is not a genuine trade union, however declining membership does not indicate a trade union is non-genuine The fact that a trade union has not sought to gain a critical mass of members in any particular workplace or bargaining unit that would allow it to gain organisational rights may be an indication of a non-genuine trade union To regulate relations between employees and employers a trade union must recruit members. The fact that a significant number of employees become members after termination of their employment is an indication that the trade union is not genuine The size of membership may be an indication that a trade union is not a genuine trade union, however declining membership does not indicate trade union is non-genuine

Principles for genuineness Independent from employer(s): (is not direct or indirect control of any employer or employers’ organisation(s) and is free from their interference or influence) Association of employees: (establish and ensure effective functioning of branches; hold meetings; elect shop-stewards or workplace representatives and office bearers) Association not for gain: (unrealistic high salaries and allowance; interest free loans or no interest loans and loans are not paid; income is not used for benefit of organisation and its members)

Rights of registered unions Registered unions have more rights than unregistered ones under the LRA. Some of the important rights of registered unions are: organisational rights awarded by the Commission for Conciliation, Mediation and Arbitration (CCMA); a right to be a member of a bargaining or statutory council, subject to the admission requirements of the council; a right to enter into agency and closed shop agreements; - a right to establish workplace forums; and a right to conclude collective agreements as defined under the Act.

Winding-up and cancellation of registration If a trade union or employers’ organisation is unable to continue functioning, it may be wound up by the Labour Court on the application of the registrar of labour relations or any member of the trade union or employers’ organisation. A trade union or employers’ organisation may also resolve to wind up its affairs, and it may apply to the Labour Court to give effect to that resolution.

Organisational rights The Act provides for the following organisational rights: Trade union access to a workplace. This includes the right of unions to: enter an employer’s premises to recruit or meet members; - hold meetings with employees outside their working hours at the employer’s premises; and - conduct elections or ballots among its members on union matters. Deductions from employees’ wages of trade union subscriptions by the employer for the trade union (stop-order facilities). Enter into agency shop and close shop agreements

Centralised collective bargaining Centralised collective bargaining occurs when employers in a sector get together and bargain with one or more unions representing the employees of those employers. Centralised collective bargaining can also occur at the level of a group of companies or at the national or regional level of a company

How does the Act promote centralised collective bargaining The Act provides for three options: Collective agreements Bargaining Councils Statutory councils

Establishment of a bargaining council It could be determined by factors such as: - the degree of union and employer organisation in the sector and area of the proposed council; - the nature of the sector; - the number of employees employed by members of the employers’organisation; and - the ability of the unions and employers’ organisations to represent the different interests of employers and employees to be covered by the proposed council.

Workplace forums The general functions of workplace forums are: to promote the interests of all employees in the workplace -not only of trade union members; to enhance efficiency in the workplace; to be consulted by the employer on certain matters; and to participate in joint decision-making on other matters.

Matters for consultation restructuring the workplace; changes in the organisation of work; partial or total plant closures; mergers and transfers of ownership; dismissal of employees for operational reasons; exemptions from any collective agreement or law; job grading; criteria for merit increases and bonuses; education and training; product development plans; and export promotion.

Matters for joint decision-making disciplinary codes and procedures; workplace rules not relating to employees’ conduct; affirmative action measures; and rules regulating social benefit schemes (such as provident funds or housing) where these are controlled by the employer:

Issues on which employees could strike wage increases; and a demand to establish or join a bargaining council; a demand to recognise a union as a collective bargaining agent; and a demand for organisational rights; a demand to suspend or negotiate unilateral changes to working conditions; and an unprotected lock-out

Protected strike The issue in dispute must be referred in writing to the CCMA or to a bargaining council The CCMA or council must try to settle the dispute by conciliation within 30 days; If this fails, the CCMA or council must issue a certificate saying that the dispute has not been resolved; and At least 48 hours notice in writing of the proposed strike must be given to the employer, or seven days if the state is the employer The employees may then strike. It is not necessary to hold a ballot to make the strike protected, unless it is required by the union’s constitution

Situations when procedures in the LRA for a protected strike do not have to be followed the parties to the dispute are members of a council and the dispute has been dealt with by that council in accordance with its constitution; the strike conforms with the procedures in a collective agreement; the strike is in response to an unprocedural lock-out; or the employer intends unilaterally to change the employees’ employment conditions, or has changed them, and refuses to change them back again within 48 hours of a written request to do so.

Limitations on strikes a collective agreement prohibits a strike in respect of the issue in dispute; an agreement requires that the issue in dispute be referred to arbitration; the issue in dispute is one that the Act says may be referred to arbitration or to the Labour Court; the parties are bound by an arbitration award or collective agreement that regulates the issue in dispute; the parties are bound by a sectoral determination that regulates the issue in dispute and the determination is less than one year old; the parties are engaged in an essential service (see below); or the parties are engaged in a maintenance service

Compensation for loss attributable to a strike or lock-out An employer or employees can claim compensation from the Labour Court if they suffer any loss as a result of an unprotected strike or lock-out or as a result of any conduct connected to the strike or lock-out that does not comply with the Act. The Labour Court will consider: what attempts were made by the parties to comply with the provisions of the LRA; whether the strike or lock-out was premeditated; whether the strike or lock-out was in response to unjustified conduct by another party to the dispute; the duration of the strike or lock-out; and the financial position of the employer, trade union or employees.

CODE OF GOOD PRACTICE ON PICKETING It is intended to be a guide to those who may be contemplating, organising or taking part in a picket and for those who as employers or employees or members of the general public that may be affected by it The Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed Does not impose any legal obligations and the failure to observe it does not by itself render anyone liable in any proceedings

Conduct in the picket Must be authorised by a registered trade union; Only members and supporters of the trade union may participate in the picket; Must be to peacefully demonstrate in support of any protected strike or in opposition to any lock-out; It may only be held in a public place outside the premises of the employer or, with the permission of the employer, inside its premises. The permission of the employer is subject to overrule by the CCMA, if such permission is unreasonably denied.

Picketing rules When they negotiate an agreement on picketing rules the following factors should be considered: the nature of the authorisation and its service upon the employer; the notice of the commencement of the picket including the place, time and the extent of the picket; the nature of the conduct in the picket and the number of picketers and their location; the modes of communication between marshals and employers and any other relevant parties; access to the employers premises for purposes other than picketing e.g. access to toilets, the use of telephones, etc;

Pickets on the employer’s premises Factors that determine whether the decision of the employer to withhold the permission is reasonable are: the nature of the workplace e.g. a shop, a factory, a mine etc; the particular situation of the workplace e.g. distance from place to which public has access, living accommodation situated on employer premises, etc; the number of employees taking part in the picket inside the employer’s premises, the areas designated for the picket and time and duration of the picket; - the proposed movement of persons participating in the picket and the proposals by the trade union to exercise control over the picket and the conduct of the picketers.

In relation to dispute resolution Requiring disputes to go through a phase of conciliation, with trained conciliators, where the parties are encouraged, with the assistance of an outside, skilled conciliator, to settle the dispute   Empowering bargaining councils to resolve their own disputes and those of non-parties if they have been accredited by the CCMA;  Setting up the Labour Court and Labour Appeal Court as specialist labour courts.

Dispute resolution (continues) Con/arb Unless there are objections, arbitration will follow on immediately after conciliation has failed to resolve the dispute, resulting in a ‘con-arb’ process (for dismissal and unfair labour practice disputes). Employers and employees will have an option to request by mutual consent that the CCMA or a bargaining council appoint an arbitrator to conduct a final and binding disciplinary enquiry in cases relating to an employee’s conduct or capacity only, thus dispensing with a conciliation and arbitration process. [new S188A]

CODE OF GOOD PRACTICE: DISMISSAL Guidelines for maintaining workplace discipline May vary in accordance with the size and specific needs of organisations Ensures fair and consistent disciplining of employees Is corrective rather than punitive Based on procedural and substantive fairness Articulates acceptable behaviour and standard

DISCIPLINARY PROCEDURE Informal reprimand (employee commits first breach of the disciplinary code) Written warning (similar breach of disciplinary code – and written warning last for six months) Serious written warning (another similar breach of disciplinary code or a very serious transgression of the disciplinary code) Dismissal or suspension (another similar breach of disciplinary code after a serious warning or in the event of misconduct of very serious nature)

Principles of fairness in the hearing Procedural fairness: Inform employee of the following- nature of transgression; date, time and place of enquiry; right to an interpreter; right to be represented by fellow employee or union official; right to call witnesses & cross examination; and right to state one’s case and defend it Substantive fairness: Reasons for disciplining the employee

Guideline for misconduct dismissal Whether the employee contravenes a rule or standard regulating conduct If a rule or standard was contravened, whether or not: - the rule was valid or reasonable employee was aware or could reasonably be expected to have been aware rule or standard has been applied consistently dismissal was an appropriate sanction for contravention of the rule or standard

Guideline for Incapacity: Poor work performance Whether or not the employee failed to meet a performance standard; and If the employee did not meet a required standard whether or not employee was aware or could reasonably be expected to have been aware o the required performance or standard; employee was given a fair opportunity to meet required performance standard; and dismissal was an appropriate sanction for not meeting the required performance standard An employee on probation should not be dismissed unless: there is appropriate evaluation, instruction, training, guidance or counselling; and - after a reasonable period of time for improvement the performance continues to be unsatisfactory

Guidelines in a dismissal case arising from ill health or injury Ascertain whether or not the employee is capable of performing his or her work If employee is not capable: the extent to which the employee is able to perform the work the extent to which the employee’s work circumstances might be adapted to accommodate disability or where this is not possible, extent to which the employee’s duties might be adapted the availability of any suitable alternative work

Reasons for retrenchments Economic considerations arise as a result of a decrease in production and/or the demand for goods and services, accompanied by a possible large-scale increase in labour costs. An employer may decide to relocate the organisation. A specific industry or organisation may consider terminating or changing some of its activities due to factors beyond its control, such as increased competition or an economic recession. Technological development and mechanisation may require restructuring of an organisation. Takeovers and mergers may require restructuring of an organisation and consequently a reduction in labour.

Dismissals based on operational requirements When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult. - any person whom the employer is required to consult in terms of a collective agreement; - if there is no collective agreement that requires consultation, a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; and - if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose

The consulting parties must attempt to reach consensus on Appropriate measures - to avoid the dismissals - to minimise the number of dismissals - to change the timing of the dismissals; and to mitigate the adverse effects of the dismissals. The method for selecting the employees to be dismissed; and The severance pay for dismissed employees.

The employer must disclose in writing the reasons for the proposed dismissals; the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss;

The employer must disclose in writing (continues) the time when, or the period during which, the dismissals are likely to take effect; (f) the severance pay proposed; (g) any assistance that the employer proposes to offer to the employees likely to be dismissed; and (h) the possibility of the future re-employment of the employees who are dismissed.

Disclosure of information The employer must allow the other consulting party an opportunity during consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing The employer must select the employees to be dismissed according to selection criteria - that have been agreed to by the consulting parties; or - if no criteria have been agreed to, criteria that are fair and objective

END THANK YOU