LRALecture 9

Labour Relations Act

Introduction to Labour LawThose rules regulating the legal relationship between:employees,employers,and also between employers and employees and the Sate, regarding delivery of services under authority.

Classnotes are insufficient for study purposes.

Individual Labour Law:Regulates the relationship between individual

employers and employees. Is regulated by the common law contract of

employment, collective and statutory conditions of employment.

Collective Labour Law:Statutory and wage regulating measures which

regulates collective labour relations. Is regulated by bargaining councils, statutory councils,

etc. Also regulates strikes, unfair labour practices and unfair

dismissal, etc.

Labour Relations Act, 1995Purpose: Promote

Economic development Social justice Labour peace Democratisation of the workplace

Who is employees ito the Act? s213: Employee = Any person, excluding an independent contractor, who works for

another person or for the State and who receives or is entitled to receive any remuneration; and

Any other person who in any manner assists in carrying on or conducting the business of an employer.

Sect.200A creates a rebuttable presumption of who is an employee – when one or more of the following factors exist: Person is subject to the control or direction of another

person; Hours of work are subject to the control or direction of

another person; Person is part of the organisation; Person has worked for that person for an average of at

least 40hours over the last three months; Person is economically dependant on the person for who

he is working; Person is provided with tools of trade or work equipment; Person works for or renders services to only one person. Applicable to employees who earn less than the annual

amount prescribed by the Minister.

Classnotes are insufficient for study purposes.

Act not applicable to:NDF;National intelligence Agency;National Academy of Intelligence;South African Secret Service;South African National Academy of Intellegence;Directors and staff of Comsec. (COMSEC (formally Electronic

Communications Security (Pty) Ltd) is a company owned by the Government of South Africa through its National Intelligence Agency. COMSEC’s main task is to secure South African government communications against any unauthorized access and also from technical, electronic or any other related threats. The company also provides verification services for electronic communications security systems, products and services used by the South African government.)

Classnotes are insufficient for study purposes.

Freedom of association Fundamental right enshrined in the Bill of Rights. LRA ensures that this right is guaranteed.

An employee: Has the right to participate in the formation of a trade union and To become a member of a trade union.

An employee/member of trade union/member of federation : Has the right to participate in lawful activities of the trade union. To participate in elections of the trade union. To be elected or appointed as office-bearer, official or trade union

representative of union or federation.

An employee may not be discriminated against for exercising any of the above rights.

.Consequently, the Employer has the right to:Take part in the formation of an Employers’

Organisation;To become a member of the latter.

An Employer that is already a member of an Employers’ Organisation has the right to:Take part in the legal activities of the Organisation;Take part in elections;Take part as a candidate in such elections.

Every Trade Union & Employers’ Organisation has the right to determine its own constitution and rules, to have elections, to plan its administration, form federations and to join the latter / international organisations.

Framework of the LRABargaining - & Statutory councils are created for the purpose of collective bargaining;

CCMA, LC, LAC & above councils are responsible for dispute resolution;

Workplace Forums are created to promote worker participation in the decision making process.

Trade unions and employers’ organisations An association of employees whose principle purpose is to regulate

relations between employees and employers, including any employers’ organisations.

Employers’ organisation is any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions.

REGISTRATION of Trade Unions: Application together with the constitution of the trade union is submitted to the

Registrar of Labour Relations.

If the Registrar is satisfied that the trade union complies with all the requirements, a certificate must be issued and the name of the trade union must be entered into the register of trade unions.

.Requirements: Name must not be confusing or misleading; (ANC vs COPE) Constitution must be accepted and comply with all prescribed

requirements; Must have an address in the Republic; Must be a genuine trade union or employers’ organisation in

conformity with principles laid down by the Minister in consultation with NEDLAC;

Must be independent.

Upon registration a trade union receives the legal capacity (juristic person) to become a member of a bargaining council.

Registration will be cancelled once the Labour Court finds that the trade union is no longer independent or to be wound-up.

Bargaining councils Parties

Registered trade union/EO Application can be made to become a member of a BC.

Constitution Equal representation is required.

Registration Prescribed form with a constitution. Registrar will invite objections from the public. NEDLAC will consider and demarcate the sector. Certificate is issued and BC is noted in the register.

Cancellation of registration When council no longer perform its functions; Labour Court ordered winding-up of BC.

Functions of BC1. Conclude and enforce collective agreements;

2. Prevent and resolve labour disputes;

3. Establish and administer fund for resolving of disputes;

4. Promote, establish and administer various funds/schemes for the benefit of the parties;

5. Submit proposals to NEDLAC on policy and legislation that may affect the sector and area;

.6. Determine by collective agreement the matters which

may not be an issue in dispute for the purpose of a strike/lock out;

7. Confer on workplace forums additional matters for consultation;

8. Provide industrial support services within the sector;

9. Extend the services and functions of the council to workers in the informal sector and home workers.

Statutory CouncilsEstablishment and registration

No BC in the area.

Registered trade unions/EO with 30 % members in the area can apply for the establishment of the council.

Notice of establishment must be published in the Government Gazette and will include an invitation to trade unions and EO to serve on the council. Registrar will issue a certificate and note establishment of the SC in the register.

SC may change its status by applying to the Registrar to be registered

as a BC.

Powers of a SCPromote dispute resolution;

Promote and establish training and education schemes;

Establish and administer pension-, provident funds/schemes, etc. for the benefit of one or more of the parties to the SC or their members;

Conclude Collective agreements, extend its powers and functions to include any functions of a BC.

CCMA Established as independent juristic person in every province.

FUNCTIONS: Dispute resolution through conciliation and arbitration;

Establishment of workplace forums;

Advise parties on procedures;

Assist parties to obtain legal advice or –representation;

Accreditation of councils or private agencies and subsidise such accredited councils/agencies;

.

Conduct, oversee or scrutinise any election or ballot;

Research into matters relevant to its functions;

Compile and publish information and statistics;

Offer to resolve a dispute that has not been referred to it through conciliation;

Publish guidelines in relation to any matter dealt with in the Act.

Labour CourtExclusive jurisdiction ito any matter relating to the LRA.

Can refuse to hear a matter if no attempt has been made to conciliate the dispute.

Parties can appeal to the Labour Appeal Court.

Powers: To make an appropriate order eg. Interdict, compensation, etc. Order compliance with any provisions of the Act; To make an Arbitration award an order of court; Request CCMA to do an investigation; Dispute resolution; Condone late filing of documentation; Review; Hear an appeal.

Labour Appeal Court

Final court of appeal against decisions of the Labour Court. Can confirm, set aside or amend a judgment.

Can decide legal questions on request of Labour Court.

Decision is final and there is no right to appeal against its final judgment.

Workplaceforums Ensure worker participation in the workplace.

Consultation and joint-decision making become possible – avoids bad labour relations.

100 or more employees in the workplace can establish a WPF. All employees enjoy representation, not only trade union members.

Platform where the employer consults with all employees on broader issues within the workplace such as restructuring, work grading, policy issues, etc. NOT for quibbling over wages!

Joint-decision making is required regarding procedures, disciplinary codes and policy regarding AA.

OUTCOMESExplain which employees enjoy protection in terms of the Act.

Discuss the right to freedom of association of both employers and employees.

Discuss each body established by the LRA.