WPP NH FIFIITIIBIH UNIVERSITY EXAMINER(S) MANAGEMENT; BACHELOR OF OFFICE MANAGEMENT AND TECHNOLOGY. ZlBHUR; 07BOMT FACULTY OF HUMAN SCIENCES

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1 I FIFIITIIBIH UNIVERSITY OF SCIENCE nno TECHNOLOGY FACULTY OF HUMAN SCIENCES DEPARTMENT OF SOCIAL SCIENCES QUALIFICATIONS: BACHELOR OF HUMAN RESOURCES; BACHELOR OF HUMAN RESOURCES MANAGEMENT; BACHELOR OF OFFICE MANAGEMENT AND TECHNOLOGY QUALIFICATION CODES: 07BHRM; ZlBHUR; 07BOMT LEVEL: 5 COURSE CODE: LAL 112 S COURSE NAME: LABOUR LAW 13 SESSION: NOVEMBER 2017 PAPER: THEORY DURATION: 2 HOURS MARKS: 100 FIRST OPPORTUNITY EXAMINATION QUESTION PAPER EXAMINER(S) MM van Zyl S de Villiers MODERATOR: H von Alten INSTRUCTIONS This paper consists of 8 (eight) questions. WPP NH All questions are compulsory. All questions must be answered in your Examination Book Read all questions carefully before answering. Incorrect spelling and illegible handwriting may prevent mark allocation. 1. Calculator PERMISSIBLE MATERIALS THIS QUESTION PAPER CONSISTS OF 10 PAGES (Including this front page)

2 QUESTION 1 Choose the correct answerfrom the given options in each of the following questions. There is only ONE correct answer for each question. Negative marking will not be applied but answers to questions will not be marked where more than one answer has been given. Only write the chosen letter next to the corresponding question number in your examination book. 1.1 Constructive dismissal can be defined as: (c) The dismissal of an employee due to circumstances beyond the employer, for example, financial difficulties. the control of The resignation of an employee after negotiations for an increase in salary had failed. The resignation of an employee, not by choice, but due to personal circumstances of the employee such as the transfer of the employee s spouse to another town. The resignation of an employee due to intolerable circumstances at work attributable to the employer. The dismissal of an employee for having exercised a right conferred to him or her in terms of the Labour Act 11 of (2) 1.2 One of the procedural requirements for a fair dismissal based on operational requirements is to notify certain parties of the intended dismissal(s). Unless a collective agreement provides for more favourable procedures, Section 34 of the Labour Act 11 of 2007 prescribes as follows: (c) The employer represented at the workplace. must inform the Labour Commissioner and all trade unions At least 3 (three) months before the intended dismissals are to take place, the employer must inform, among others, the Labour Commissioner ofthe intended dismissals. At least four weeks before the intended dismissals are to take place, the employer must inform, among others, the Labour Commissioner and any trade union recognised as the exclusive bargaining agent dismissals. of the intended A notice about the intended dismissal based on operational requirements must indicate, among others, the names ofthose employees whose services will be terminated. None of the above. (2)

3 1.3 In the context of termination of employment on notice, choose the correct statement from the following: An employer may not give notice oftermination during any period of leave an employee is entitled to. The period of notice is always dependent on the period ofemployment of a particular employee. If the contract ofemployment expressly stipulates a notice period, summary termination will not be possible. A notice period must always commence on the 1St of a month. All of the above. (2) 1.4 A collective agreement binds: The parties to the agreement. Members of the parties to the agreement. All the employees in the bargaining unit ifthe agreement was concluded by an exclusive bargaining agent. Any employee or employer who becomes a member ofthe respective trade union or employers organisation after the agreement became binding. All of the above. (2) 1.5 The minimum number of workplace union representatives that may be elected at a workplace where there is a total of 32 employees trade union: who are members of the same OXU'l-hWN (2) 1.6 In order to be able to strike lawfully: It is not necessary to qualify as an employee, 11 of as defined in the Labour Act An employee does not need to belong to a trade union to be able to strike. An employee must have been a party to the dispute that has been referred to conciliation. All of the above are correct. Both and (c) (2) b.)

4 1.7 Choose the incorrect statement from the following: A senior manager may not join a trade union. An employer may not prevent an employee to attend trade union meetings outside working hours. Atrade union may legitimately limit membership to persons employed in a particular industry. A person who alleges that any fundamental right, such as freedom of association, has been infringed or is threatened may approach the Labour Court for the enforcement ofthat right or protection or other appropriate relief. None of the above. (2) 1.8 In terms of the Labour Act 11 of 2007, the following is r_10_t considered as an unfair labour practice by an employer: (3) Bargaining in bad faith. Unilateral change of any term or condition of employment. Engaging in conduct that subverts orderly collective bargaining or intimidation of any person. Unfair dismissal. Unfair disciplinary action. (2) 1.9 An arbitration award: ls binding, unless the award is advisory. ls automatically an order of the Labour Court. May be varied or rescinded by the arbitrator who has made the award. May be enforced by a labour inspector. All the statements, except, are correct. (2) 1.10 A party to a dispute who alleges a defect in the arbitration proceedings, may: Apply to the Labour Commissioner for the setting aside of the award. Appeal to the Labour Commissioner for the review of the award. Lodge a complaint with the Minister of Labour and Social Welfare. Apply to the Labour Court for an order reviewing and setting aside the award. Apply to the High Court for an order reviewing and setting aside the award. (2)

5 1.11 Choose the correct statement: An arbitrator in statutory arbitration is entitled to make a cost order irrespective of the circumstances. Arbitration tribunals havejurisdiction to hear and determine any dispute or any other matter arising from the interpretation, implementation or application of the Labour Act. If the parties to the dispute consent, the arbitrator may suspend the proceedings and attempt to resolve the dispute through conciliation. All the statements are correct. Both and (c) (2) 1.12 Unless one ofthe exceptions applies, for what period must an employee be a fully paid up member of the Social Security Fund to qualify for a benefit? 12 months 6 months 24 months 30 consecutive days 1 year (2) 1.13 In terms of the Social Security Act 34 of 1994 maternity leave benefits shall, if the child concerned dies within two weeks after the actual date of confinement, be payable: In respect of the rest of the period of maternity leave. In respect of a further period of four weeks only, reckoned from the date of confinement. In respect of a further period of four weeks only, reckoned from the date of death. No further benefits are payable if the child clies within two weeks after birth. Neither one of the above options. (2) 1.14 Choose the correct statement: When an employee dies, the compensation payable in terms of the Employees Compensation Act 30 of 1941 includes: A monthly pension payable to a child until the death of such child. A monthly pension payable to a child until the child reaches the age of 18 (eighteen) years or until such child dies or marries. A monthly pension payable to a child until the child reaches the age of 21 (twenty-one) years. A monthly pension payable to a spouse until such spouse remarries. Neither one of the above. (2) 5

6 1.15 In terms of the Labour Act 11 of 2007, it shall not be deemed as discrimination: To temporarily reassign the duties of a female employee who is pregnant, even if it leads to a reduction in remuneration or other benefits. To distinguish, exclude or prefer any individual merely person political opinion. (c) To select any person according to reasonable criteria. To distinguish, exclude or prefer any individual merely person s HIV status. None of the above. (2) on the basis of such on the basis of the [30] QUESTION 2 Give a word or phrase (or complete the sentence), in the context of the common law, case law and the relevant labour legislation, whichever is applicable: 2.1 In terms ofsection 5(9) ofthe Labour Act 11 of 2007, resignation by an employee as a result of sexual harassment at the workplace. (1) 2.2 An order from the Labour Court ordering strikers who take part in an unlawful strike or picketing action to cease such action. (1) 2.3 This process will be followed if a party to a dispute alleges a defect in any arbitration proceedings. (1) 2.4 A form of protest where striking workers congregate outside a place of work to, amongst others, draw public attention to a cause. (1) 2.5 A lump sum payable to an employee upon termination ofa contract of employment in prescribed circumstances, provided that such employee had served a minimum period of 12 (twelve) months of employment. (1) 2.6 The right of an employer to manage and run the business in the best interest ofthe business, inclusive ofthe right to change work practices without the consent ofthe affected employees. (1) 2.7 The Death Benefit, payable in terms of the Social Security Act 34 of 1994, can also be claimed upon either_ or permanent disability. (1) 2.8 The decision of an arbitrator, given within 30 days of the conclusion of the arbitration proceedings. (1)

7 _ of 2.9 Employees who are excluded from the operation of the Social Security Act 34 of (1) 2.10 Differential treatment that can be justified, when measured against the requirements of the job concerned or the operational requirements of the employer. (1) [10] QUESTION 3 Scania has developed driverless trucks that can negotiate set roads and load/unload remotely. It is also capable of safely dealing with obstacles on the road. Since these trucks can operate 24 hours per day 365 days per year! it can save about 500 work hours per truck per year. The management of Rossing Uranium (Pty) Ltd considers the purchasing ofthese trucks. As a consequence, about 20 (twenty) drivers employed by the company will have to be retrenched. Answer the following questions of 2007: in the context of the common law and the Labour Act Give a broad outline of the step-by step process to be followed (in Labour Act 11 of 2007) when an employer economic or technological reasons. (5) terms of the needs to reduce the workforce for 3.2 Briefly discuss whether severance pay would be payable to the workers in the given circumstances. (3) 3.3 How is severance pay calculated? (2) 3.4 in which other circumstances would severance be payable. (2) 3.5 Complete the following sentence: A dispute concerning an unfair dismissal may be referred in writing to the within the date of the dismissal whereupon a process of (c) will _ follow. (3) [15]

8 QUESTION 4 Trendy Fashion CC (TF), a franchise established in 2000, is flourishing in the Namibian market with a total of six different branches spread across the country. Recently, a great number of employees of TF at the Windhoek branches decided to join the Namibia Wholesale & Retail Workers Union (NWRWU). NWRWU plans to apply for recognition as exclusive bargaining agent. However, unbeknown to them, employees at the Oshakati branch have established their own union, the Paywell Workers Union (PWU). PWU represents 130 of the 210 employees at the Oshakati outlet and also approached TF management with an application for recognition. Answer the following questions of 2007: in the context of the common law and the Labour Act The management of TF would like to know what is required for a union to qualify for recognition as an exclusive bargaining agent? (2) 4.2 Suppose PWU eventually succeeds in obtaining recognition as exclusive bargaining agent of the employees at the Oshakati branch of TF. Advise PWU on the following aspects: The union s right of access to the employer s premises. (2) The deduction of union membership employees. (2) fees from the remuneration of the 4.3 In the recognition agreement (a collective agreement), the parties agreed, among others, that non-members shall pay an agency fee to PWU. Those employees who are members of NWRWU are very upset that they now need to pay membership fees to two different trade unions and want to know who will be bound to the terms of the collective agreement. Discuss briefly. (4) QUESTION 5 [10] The kitchen staff members of a large uranium mine go on strike. The dispute relates to unilateral change of working hours. The mine is situated far from the nearest town and the mine s employees stay on the premises in communal housing provided for by where meals are also served. the mine Answer the following questions of 2007: in the context of the common law and the Labour Act Identify the type of dispute between the parties. Motivate your answer. (2)

9 5.2 Briefly discuss whether the employer is entitled to make use of replacement kitchen staff in the given circumstances? (2) 5.3 Are the striking workers entitled to any remuneration during the time that they are on strike? Motivate your answer. (2) 5.4 Suppose some of the strikers became violent and damaged company property. Advise the mine whether they have any claim. Briefly discuss. (2) 5.5 Suppose the strikers demanded the introduction ofa pension fund for the workers. Identify the dispute and briefly motivate your answer. (2) [10] QUESTION 6 Answer the following questions of 2007: in the context of the common law and the Labour Act in terms ofthe Labour Act, conduct where an employer unilaterally changes a term or condition of a contract of employment is considered an unfair labour practice. Unilateral changes are, however, allowed in certain prescribed circumstances. Briefly list these circumstances. (3) 6.2 One of the major changes brought about by the Labour Act 11 of 2007 lies in the area of alternative dispute resolution systems in the form of arbitration and conciliation. Briefly distinguish between the objectives of these alternative dispute resolution procedures. (3) 6.3 As a general rule, a party to a dispute is not allowed to bring a legal practitioner as his/her/its representative to a statutory arbitration procedure. Set out the circumstances in which a party will be allowed to have a legal practitioner as a representative. (4) QUESTION 7 [10] Sukon, a medical doctor from Vietnam, is employed at a private medical centre, Khomas Medical Centre in Windhoek, for a fixed period of two years. She is earning a salary of NS per month. She recently got married and would like to get the following you in terms of the applicable legislation: advice from

10 7.1 What is required to qualify for maternity leave benefits in terms of the Social Security Act 34 of 1994, as amended? (3) 7.2 Suppose her baby dies while she is receiving maternity leave benefits in terms of the Social Security Act 34 of 1994, as amended. Briefly discuss whether she would be entitled to receive maternity leave benefits for the rest of the maternity leave period. (3) 7.3 What other benefits are payable in terms of the Social Security Act 34 of 1994, as amended? (2) 7.4 Would she be entitled to a disability pension in terms of the Employees Compensation Act 30 of 1941, as amended, if she gets injured or contracts a disease arising out of and in the scope of her employment? (2) [10] QUESTION 8 One of the affirmative action measures provided for in the Affirmative Action (Employment) Act 29 of 1998, is to give preferential treatment to suitably qualified persons from designated groups. Define the following concepts in terms of the said Act: Relevant employer (1) Suitably qualified persons (1) Designated groups (3) [5] Grand Total: 100 GOOD LUCK!! 10