LABOUR LAW Theme 8 THEME 8 DISPUTE

LABOUR LAW Theme 8

THEME 8 DISPUTE RESOLUTION PGL (2006: 319 -354) ; WL (2009: 425 -442) PLL (2005: 357 -365; 339 -386);

THEME 8 (LEARNING OUTCOMES) • • • Discuss the different structures for dispute resolution. Be acquainted with matters concerning the Commission for Conciliation, Mediation and Arbitration (CCMA). Be acquainted with matters pertaining to the accreditation and jurisdiction of, and subsidy to, councils and private agencies. Be acquainted with matters pertaining to the resolution of disputes under the auspices of the CCMA with reference to conciliations, arbitrations, con/arb, and pre-dismissal arbitrations. Be acquainted with matters pertaining to the Labour Court. Be acquainted with matters pertaining to the Labour Appeal Court. Be acquainted with matters pertaining to general provisions applicable to courts established by the Labour Relations Act. Explain the consequences of private dispute resolution. Discuss relevant case law.

LIFE IS NOT ALWAYS WHAT IT SEEMS TO BE!

THEME 8 (INTRODUCTION) • Disputes between employer and employee occur frequently. • Must have procedures in place through which disputes can be channelled as and when they arise. • CCMA was introduced with LRA. • Recognition of private dispute resolution procedures. • In principle: all disputes must be conciliated. Then sometimes arbitrated, sometimes adjudicated. • Con-arb and pre-dismissal arbitration also introduced by LRA.

THEME 8 (STRUCTURES FOR DISPUTE RESOLUTION) • Structures o. Bargaining or statutory councils o. CCMA o. Labour Court o. Labour Appeal Court • • • LRA prescribes conciliation and arbitration/adjudication. Private dispute resolution encouraged. I. t. o. agreement. Agreement takes precedence over LRA. Sect 147(6) Referral by CCMA if agreement on private dispute resolution. Conciliation: Neutral 3 rd party acts as facilitator and assists parties to settle dispute. Settlement agreement. Outcome certificate. Arbitration: Neutral 3 rd party makes final award. No appeal. Arbitration by CCMA/council – LRA. Private arbitration – LRA & Arbitration Act

LEARN!

THEME 8 (PRIVATE DISPUTE RESOLUTION) • Parties bound by existing collective/any other agreements which designate private arbitration. Agreed procedures override relevant provisions of LRA. • Section 147(6) authorises CCMA to refer dispute to appropriate person/body for resolution through private procedures if it finds that there is private agreement between parties governing issues in dispute.

THEME 8 (TWO-STEP PROCEDURE) • Conciliation –Fail? • Arbitration or adjudication or industrial action, depending on the type of dispute. The second step can only be taken if the first step fails.

THEME 8 (DISPUTE RESOLUTION BY COUNCILS I) Accreditation • Must be accredited by CCMA before resolving disputes. • Factors influencing accreditation: o Human and financial resources • Accreditation for conciliation only or conciliation and arbitration. • No council i. r. o. disputes on organisational rights, workplace forums, ministerial determinations and demarcation issues. • CCMA if above/no accreditation/no jurisdiction/no council. • Upon accreditation, panel of conciliators and arbitrators will be appointed.

THEME 8 (DISPUTE RESOLUTION BY COUNCILS II) Jurisdiction • Accredited council resolves dispute in its registered scope: • Generally speaking councils conciliate and arbitrate the following types of disputes: 1. Parties to council: Resolution according to council’s constitution. 2. Non-parties but within scope: Resolution according to constitution. 3. One/more parties outside scope: Referred to CCMA. 1. 2. 3. 4. Dismissal for misconduct Dismissal for incapacity/poor work performance Constructive dismissal Dismissal where the employee does not know the reason for dismissal 5. Unfair labour practice disputes 6. Disputes about the interpretation or application of council’s constitution/ collective agreements. • Sometimes council may have jurisdiction to conciliate…but then it must be referred to LC for adjudication (dismissal for operational requirements, automatically unfair dismissals, dismissals for unprotected strike, infringement of freedom of association etc. )

THEME 8 (DISPUTE RESOLUTION BY COUNCILS III) Referral of dispute • In writing (and in prescribed form for CCMA…not council). Serve copy on opposing party. • Within time-frame. (Dismissals – 30 days. ULP – 90 days. ) • Condonation

THEME 8 (DISPUTE RESOLUTION BY COUNCILS IV) Subsidies, fees and confidentiality • Fee according to tariff of fees by CCMA. • Accredited council may apply for subsidy from CCMA. • Non-disclosure of confidential info except by court order.

THEME 8 (LABOUR COURT EXCLUSIVE JURISDICTION – CAN’T ARBITRATE) NB • Dismissal: Operational Requirements (more than 2 employees) • Automatically unfair dismissal • Dismissal: Unprotected Strike • Disputes about freedom of association

THEME 8 (DISPUTE RESOLUTION BY CCMA I) Jurisdiction • If not within jurisdiction of council/no council – CCMA has jurisdiction. • 1. 2. 3. 4. 5. 6. CCMA also has jurisdiction over: Dismissal for misconduct Dismissal for incapacity/poor work performance Constructive dismissal Dismissal for reason unknown to employee Dismissal of probationary employee (con-arb) ULP • CCMA has EXCLUSIVE JURISDICTION over: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Dispute over disclosure of info to trade unions Dispute over exercise of organisational rights Dispute over application/interpretation or organisational rights Dispute over application/interpretation of collective agreement Dispute over application/interpretation of agency shop/closed shop agreement Dispute over failure to admit trade union to closed shop agreement Dispute over application/interpretation of ministerial determination Dispute over application/interpretation of collective agreements of council not in operation anymore Dispute over demarcation of sectors and areas of councils Dispute over application/interpretation of bargaining councils and statutory councils Dispute over picketing Dispute over proposal to be subject of joint decision-making Dispute over disclosure of info to WPF Dispute where one/more of parties do not fall within registered scope of council

THEME 8 (DISPUTE RESOLUTION BY CCMA II) Conciliation • Parties: Trade union/employee v employers’ organisation/employer. • Any part my refer dispute. Only employee may refer for dismissal/ULP. Only employer for joint decision-making and WPF. • LRA Form 7. 11. Party referring = applicant. Must be served on opposition (respondent) • Dismissal – within 30 days. ULP – within 90 days. • CCMA must conciliate within 30 days. • Commissioner is appointed. (Specific commissioner with essential service) • Conciliation = mediation/fact-finding exercise/advisory arbitration award • Informal – no legal representation. (Member/office bearer/official of union) • Party to dispute must appear in person and may also be represented. • See rules for absence of parties on PGL 324. • Outcome certificate. • Parties must sign settlement agreement if conciliation was successful.

THEME 8 (DISPUTE RESOLUTION BY CCMA III) Arbitration • In conciliation failed, with outcome certificate refer within 90 days for arbitration (LRA Form 7. 13). (Essential services – within 30 days) • Commissioner appointed. Parties may apply for commissioner of choice within 48 hours after outcome certificate. May apply to CCMA for senior commissioner. • Formal and final. • May give evidence, call witnesses, cross-examine and address concluding arguments. • Arbitration may be suspended and referred back for conciliation. • May be represented by legal practitioner etc. Must apply for legal representation. • Absence: Applicant – dismissal/postponement of matter. Respondent – continue in absence/postponed.

THEME 8 (DISPUTE RESOLUTION BY CCMA IV) • Commissioner must issue award within 14 days of conclusion of arbitration. Brief reasons. • Must have regard to code of good practices issued by NEDLAC/CCMA. • May include order for costs. (Law & fairness) • Settlement agreement may be made arbitration award. • Final and binding. Same as order of LC (except if it was only advisory arbitration award). • May be varied/rescinded – award erroneously sought/made in absence of party/mistake common to parties. • May be reviewed – misconduct/gross irregularity/exceeding of powers.

THEME 8 (DISPUTE RESOLUTION BY CCMA V) Powers of commissioner • May subpoena, administer oath, enter/inspect any premises, examine books. • May make any appropriate finding when party is in contempt.

THEME 8 (CON-ARB) 1. Combination of conciliation and arbitration. As soon as conciliation is concluded with outcome certificate, arbitration must commence. 2. Speedily resolution. 3. Compulsory with dismissal/ulp relating to probation. 4. Can object against process in other instances of dismissal.

THEME 8 (PRE-DISMISSAL ARBITRATION) • Takes the place of a disciplinary hearing. • Dismissal for misconduct/incapacity – employer may apply to CCMA with consent of employee (LRA Form 7. 19) • Prescribed fee (R 3000 p/d) • Same as arbitration. Final – no referral to CCMA/Council. • Use for senior management staff! (May already agree in contract of employment)

THEME 8 (DISPUTE RESOLUTION OF SPECIFIC DISPUTES) • See schedule p 328 – 337 • This is a useful guide for practice!

NEXT LECTURE • Individual labour disputes: Unfair Labour Practices