scholarly journals BREACH OF A COLLECTIVE AGREEMENT: DOES THE LRA PROVIDE A REMEDY IN SECTION 24? Minister of Safety and Security v Safety and Security Sectoral Bargaining Council [2010] 6 BLLR 594 LAC

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Adriaan van der Walt ◽  
Glynis van der Walt
Keyword(s):  
Dispute Resolution ◽  
Case Note ◽  
Collective Agreement ◽  
Labour Relations ◽  
Appeal Court

In a recent judgment of the Labour Appeal Court the application of section 24 of the Labour Relations Act (66 of 1995, hereinafter “the LRA”) was considered, and curtailed. In this case note the judgment of Minister of Safety and Security v Safety and Security Sectoral Bargaining Council ([2010] 6 BLLR 594 LAC, hereinafter “Minister of Safety and Security”) is evaluated. In addition, an amendment to section 24 is proposed with a view to clarifying the ambit of the dispute-resolution procedure contained in that section of the LRA.

scholarly journals TOWARDS AN EFFECTIVE KENYAN LABOUR DISPUTE RESOLUTION SYSTEM: A COMPARISON WITH THE SOUTH AFRICAN LABOUR DISPUTE RESOLUTION SYSTEM

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Johana K Gathongo ◽  
Adriaan van der Walt
Keyword(s):  
Dispute Resolution ◽  
Comparative Approach ◽  
Labour Relations ◽  
Resolution System ◽  
Labour Dispute ◽  
Wide Range ◽  
Labour Standards ◽  
International Labour Standards ◽  
The Government ◽  
Dispute Resolution System

There have been notable concerns in the current dual dispute resolution system in Kenya. The problems include protracted referral timeframes for dismissal disputes, non-regulation of maximum timeframes for the agreed extension after 30 days conciliation period has lapsed, the absence of statutory timeframes for appointing a conciliator/ commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government through the Ministry of Labour. There is still no independent statutory dispute resolution institution as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increase in strikes and lockouts.This article examines the effectiveness of the Kenyan labour dispute resolution system. The article evaluates the provisions of international labour standards relevant to labour dispute resolution. The article illuminates and describes the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. A comparative approach with South Africa is adopted to see how independent institutions, such as the Commission for Conciliation, Mediation and Arbitration, Bargaining Councils and specialised Labour Courts can lead to effective dispute resolution. In view of that, a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study are made. Systematically, the article provides suggestions and possible solutions for a better institutional framework and processes to address them.

scholarly journals Analysing the Onus Issue in Dismissals Emanating from the Enforcement of Unilateral Changes to Conditions of Employment

2017 ◽  
Vol 14 (7) ◽  
pp. 146
Author(s):  
Riaz Ismail ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
South Africa ◽  
South African ◽  
Labour Relations ◽  
Appeal Court ◽  
The Core ◽  
The United Kingdom ◽  
Mutual Interest ◽  
Core Section ◽  
The Right ◽  
Conditions Of Employment

The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee. The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature.

Is mediation the preferred procedure in labour dispute resolution systems? Evidence from employer–employee matched data in China

2019 ◽  
Vol 62 (1) ◽  
pp. 81-103 ◽  
Author(s):  
Jiaojiao Feng ◽  
Pengxin Xie
Keyword(s):  
Dispute Resolution ◽  
National Level ◽  
Organizational Factors ◽  
Individual Level ◽  
Labour Relations ◽  
Labour Dispute ◽  
Structure Factors ◽  
The Individual ◽  
Matched Data ◽  
The Relationship

This study explores procedural preferences in the historical development of labour dispute resolution systems at the national level and employees’ pre-experience preference to resolve disputes at the individual level. Drawing on two datasets – one from national public statistics and one from China’s employer–employee matched data – we find that mediation has fluctuated in its use and efficacy, and it has re-emerged as an important method to stabilize labour relations. Employees choose internal mediation only if they feel that the enterprise’s mediation committee is selected fairly. Organizational structure factors, such as the enterprise’s size and the effectiveness of the Staff and Workers Representative Congress, moderate the relationship between employees’ perceptions of justice and procedural preferences. This study contributes to the dispute resolution literature by highlighting the interactions between individual perceptions of justice and organizational factors of procedural preference. Additionally, practical implications are offered to aid in the design of dispute resolution systems and improve organizational justice.

scholarly journals The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC)

2017 ◽  
Vol 14 (2) ◽  
pp. 206
Author(s):  
Kobolo J Selala
Keyword(s):  
Full Range ◽  
Case Note ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Employment Contracts ◽  
Sex Worker ◽  
Appeal Court ◽  
Vexed Question ◽  
The Right

The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee’s contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court’s decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court’s reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court’s judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee’s constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect - hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.

scholarly journals Legal Pitfalls of Incompatibility in the Workplace: An Examination of the Landmark Ruling on Racism in Rustenburg Platinum Mine v SAEWA obo Meyer Bester 2018 (5) SA 78 (CC)

Obiter ◽  
2020 ◽  
Vol 41 (2) ◽  
pp. 429-435
Author(s):  
Konanani Happy Raligilia ◽  
Unathi Nxokweni
Keyword(s):  
South African ◽  
Focal Point ◽  
Good Practice ◽  
Case Note ◽  
African National Congress ◽  
Labour Law ◽  
Labour Relations ◽  
Racial Harassment ◽  
Contract Of Employment ◽  
Legislative Framework

In South African labour law, as is the position in other international jurisdictions, the contract of employment is founded on an employment relationship between employer and employee. This case note discusses the nature and scope of the implied term of trust and confidence in the relationship in relation to managerial employees, with particular emphasis on breach of fiduciary obligations as well as incompatibility (MacGregor “Racial Harassment in the Workplace: Context as Indicata SA Transport and Allied Workers Union obo Dlamini & Transnet Freight Rail” 2009 Industrial Law Journal 650). This obligation of mutual trust and confidence cuts both ways (Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280) and means that the employer must not behave arbitrarily or unreasonably, or so as to destroy the necessary basis of mutual confidence (Malik v BCCI [1998] AC 20 35 and Woods v WM Car Services (Peterborough) Ltd 1981 IRLR 347).Since the dawn of democracy in 1994 and influenced by constitutional changes in government, South African labour law has been drastically transformed. The new government, led by the African National Congress, had to come up with a legislative framework to deal with racism. Although the Labour Relations Act 66 of 1995 (LRA) does not explicitly deal with the question of racism at work, the importance of forging harmonious employment relationships is covered in the misconduct and incapacity in Schedule 8 of the LRA (Code of Good Practice: Dismissal). To this day, racism at the workplace remains a scourge and for this reason this case note examines the Rustenburg Platinum Mine v SAEWA obo Bester 2018 (5) SA 78 (CC)) case as its focal point. The effect of racism requires that a balance be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly and improperly exploited.

scholarly journals The Role of the Secretary of a Parity Committee

2014 ◽  
Vol 7 (4) ◽  
pp. 323-333
Author(s):  
Raymond Gérin
Keyword(s):  
Collective Agreement ◽  
Social Conscience ◽  
Labour Relations

In this article, the author wishes to show the important role that the secretary of a parity committee, by his functions, must play. These functions vary from one parity committee to another, but generally are those determined by the Collective Agreement Act and suggested by the sample regulations recommended by the Department of Labour. In addition to these duties, the secretary takes part in the conduct and orientation of the parity committee, not only as administrator but also as a specialist in a sector of labour relations possessing an awakened social conscience. In order to act with efficiency and durability, he must be particularly rich in qualities and resources and thus be able to assure the continuation and orientation of this organization with which he is entrusted.

scholarly journals Kai kurios kolektyvinio sutartinio darbo santykių reguliavimo problemos Rusijoje

Teisė ◽  
2008 ◽  
Vol 69 ◽  
pp. 22-36
Author(s):  
Никита Лютов
Keyword(s):  
Collective Bargaining ◽  
Dispute Resolution ◽  
Legal Status ◽  
Collective Agreement ◽  
Union Democracy

Straipsnyje analizuojama kolektyvinio sutartinio darbo santykių reguliavimo situacija Rusijoje. Ypatin­gas dėmesys skiriamas kolektyvinių sutarčių teisiniam statusui ir ginčų, kylančių nevykdant šių sutarčių, nagrinėjimo ypatumams. Straipsnyje taip pat analizuojama menko darbuotojų jungimosi į profesines sąjungas problema bei kritikuojama Rusijoje esama teisinė situacija, sukurianti pagrindą diskriminuoti mažas, nedaug narių turinčias profesines sąjungas. This article focuses on certain problems of collective bargaining legislation in Russia. First issue under discussion is the vague legal status of collective agreement leading to problems of conflicting dispute resolution procedures concerning the application of the agreements. Other problem is the scope of the agreement which currently discourages workers from joining the union. Author further criticizes the ab­sence of norms concerning the union democracy and inter-union relations and collective bargaining procedures that lead to the discrimination of minority unions.

scholarly journals The evasion of Section 187(1)(c) of the Labour Relations Act: National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC)

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 642-650
Author(s):  
Rasheed Keith-Bandath
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
National Union ◽  
Labour Relations ◽  
Appeal Court ◽  
The Supreme Court ◽  
First Time ◽  
Court Of Appeal ◽  
Conditions Of Employment

Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), has over the years proven to be a controversial section. At the heart of the controversy is the question as to whether an employer may terminate employees’ contracts of employment based on operational requirements in circumstances where they refuse to accept changes to terms and conditions of employment. This question came before the courts on a number of occasions and answered in the affirmative by the Labour Appeal Court in Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA ((2003) 21 ILJ 133 (LAC)), and confirmed on appeal by the Supreme Court of Appeal in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005 (5) SA 433 (SCA)). However, the LRA has since been amended with the Labour Relations Amendment Act 6 of 2014 (LRAA). Whether an employer may, in light of the amendments, adopt this approach, was recently considered by the LabourAppeal Court in National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) ((JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) (Aveng case (LAC)). The judgment is noteworthy as it is the first time that the Labour Appeal Court (LAC) delivered judgment relating to section 187(1)(c) of the LRA post-amendment, thus providing a degree of judicial certainty on the interpretation to be accorded to the amended section.

scholarly journals Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)

2021 ◽  
Vol 24 ◽  
pp. 1-20
Author(s):  
Kamalesh Newaj
Keyword(s):  
South Africa ◽  
Case Note ◽  
The Other ◽  
Constitutional Court ◽  
National Union ◽  
Test Set ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
Chemical Workers ◽  
The One

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.

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