Editors. Robert Venter Andrew Levy. Hanneli Bendeman * Bronwyn Dworzanowski-Venter

Transcription

1 5* Edition LABOUR RELATIONS IN SOUTH AFRICA Editors Robert Venter Andrew Levy Hanneli Bendeman * Bronwyn Dworzanowski-Venter OXFORD UNIVERSITY PRESS SOUTHERN AFRICA

2 1 AN INTRODUCTION TO LABOUR RELATIONS... 1 Robert Venter 1.1 Introduction Defining labour relations The origins of labour relations Traditional approaches to labour relations The unitarist approach The pluralist approach The conflict approach The parties to the employment relationship and their respective roles The secondary employment relationship The primary employment relationship The role of the employer The role of the employee Power and conflict within the primary employment relationship Trade Unions Defining trade unions Reasons for joining a trade union Trade union structure and Organisation Trade Unions and the Labour Relations Act Employers' organisations Umbrella organisations: Business Unity South Africa (BUSA) National Chambers of commerce Employers' organisations at industry level Social dialogue and NEDLAC The environment for labour relations in South Africa The micro-environment Organisational culture Leadership 36 n Communication The nature of the workforce Policies and procedures The macro-environment The economy The socio-political environment The legal framework The social environment 41 2 PERSPECTIVES ON LABOUR RELATIONS Bronwyn Dworzanowski-Venter Robert Venter Andrew Levy 2.1 Introduction The multi- and interdisciplinary nature of labour relations The economist's perspective The lawyer's perspective The industrial/economic sociology perspective Social movement unionism Decent work The Precariat Ecosocialism/Eco-Marxism The industrial/organisational psychology perspective The management perspective Quantitative versus qualitative approaches Ethics Judgement The availability heuristic The representativeness heuristic The confirmation heuristic The affect heuristic Morality..68

3 X LABOUR RELATIONS IN SOUTH AFRICA Bounded rationality and decisionmaking THE HISTOR1CAL DEVELOPMENT OF SOUTH AFRICAN LABOUR RELATIONS 73 Bronwyn Dworzanowski-Venter 3.1 Introduction Social engineering begins: Colonialism ( ) Colonisation: The Dutch, the British and slavery ( ) Gold, diamonds and reluctant black proletarians ( ) English mining capital and race politics: the Rand Rebellion (1922) An Afrikaner welfare State and the Colour Bar (1924) Black protest: Urions, women, war and the 1946 strike ( ) Extreme social engineering: Apartheid ( ) Institutionalisation of apartheid ( ) High apartheid ( ) The decline of apartheid ( ) Social re-engineering via democratisation: Transition and consolidation ( ) Transition towards democracy ( ) Towards a new labour dispensation Early transition and attempted consolidation in the Mbeki years ( ) The first Zuma administration: a period of crises or a vision for inclusive growth? ( ) Conclusion COMPARATIVE LABOUR RELATIONS: LESSONS FROM THE BRICS DEBATE 109 Bronwyn Dworzanowski-Venter 4.1 Introduction lio 4.2 Theoretical tools required to compare labour systems cross-nationally 4.3 Towards lessons for South African labour relations: BRICS comparison uo Iii Building the BRICS alliance Iii The great debate: BRIC or BRICS? Labour comparison proper: resolving the inclusion debate and lessons for South Africa Type of economy Economic growth trends Key labour legislation The role of the State and corporatism Trade unions and employers' organisations Collective bargaining Collective action: strikes and lockouts Crises and challenges within the BRICS labour markets BRICS comparison: some reflections Comparing the BRICS and IBSA alliances: which is best for South Africa? Taking comparative labour relations seriously: challenges and remedies Conclusion AN INTRODUCTION TO LABOUR ECONOMICS 133 Andrew Levy 5.1 Introduction Neo-classical microeconomic models of wage determination The elasticity of the demand for and the supply of labour The marginal product of labour The supply of labour: the backwardbending supply curve 1 41

4 CONTENTS 5.6 The distribution of earnings, wage structures and the economic effects oftrade unions The occupational or skill differential Inter-industry differentials Union versus non-union differentials Geographica! or regional differentials Discriminatory differentials Employment, unemployment and technological progress Frictional unemployment Seasonal unemployment Deficient demand (cyclical unemployment) Structural unemployment 'Hard-core' unemployment Unions, wage bargaining and Inflation Governments and labour market policy...i52 6 CONTEMPORARYISSUES IN THE SOUTH AFRICAN LABOUR MARKET 155 Andrew Levy 6.1 Introduction Minimum wage regulation in South Africa Direct contract between the buyer and the seller of labour Minimum wage levels are currently set on a sectoral basis by a statutory wage-fixing body Statutorily backed collective bargaining with Extension of the agreement to non-participative parties Voluntary collective bargaining at plant or enterprise level Labour market flexibility Wage flexibility Numerical flexibility Functional flexibility Work time flexibility Grey labour markets Outsourcing Outsourcing to a labour broker Casualisation and short-term contra cts Outsourcing the function to a service Provider Extra-legal employment Atypical labour and the future The 'apartheid wage gap' argument Labour market discrimination and equality legislation Labour market effects of discrimination...! Labour productivity, efficiency and globalisation Employment and the formal and the informal sectors The historical legacy of apartheid on South African labour markets and unemployment Broad and narrow definitions of unemployment Dealing with the question of the discouraged worker Dealing with the demand aspect of supply and demand Is South African unemployment a function of a lack of sufficiently skilled labour? THE SOUTH AFRICAN LABOUR LEGISLATIVE FRAMEWORK 193 Robert Venter 7.1 Introduction The Constitution of the Republic of South Africa Act 108 of The contract of employment Capacity to contract Age Insanity The influenae of drugs and alcohol.205

5 xii LABOUR RELATIONS IN SOUTH AFRICA The contract must be legal Possibility of Performance Intention Agreement Misrepresentation Mistake Undue influenae Duress Duration of the contract Fixed-term contracts Indefinite-period contracts Methods of concluding a contract of employment A written contract A verbal contract Tacit contracts Duties of the employer Receivingthe employee into service.,., Expecting only reasonable and agreed hours of work Remuneratingthe employee Provision of safe working conditions...2l Leave Compliance with statutory requirements Duties of the employee To supply services To perform competently To show loyalty To show reasonable respect and obedience To maintain levels of good conduct Termination of the contract of employment On expiry Completion of the specified task or project By notice duly given By summary termination By repudiation Through mutual agreement Bydismissal Bydeath Byinsolvency By sickness and disability By State action Due to operational requirements The Labour Relations Act 66 of Chapter 1: Purpose, application and Interpretation of the Act Chapter 2: Freedom of association and general protection Chapter 3: Collective bargaining Part A: Organisational rights Part B: Collective agreements Part C: Bargaining Councils Part D: Appeals From Registrar's Decision Part E: Statutory councils Part F: General provisions concerning councils Chapter 4: Strikes and lockouts Definitions of strike and lockout Limitations on the right to strike and lockout Procedural requirements Effect of procedural strikes and lockouts Replacement labour during strikes or lockouts Strikes and lockouts not in compliance with the Act Picketing Essential services and maintenance services Socio-economic protest action Chapter 5: Workplace forums Establishment of workplace forums...,239

6 CONTENTS XIII Composition and functioning of a workplace forum Specific matters for consultation Specific matters for joint decisionmaking Disclosure of Information Dissolution of a workplace forum Disputes about workplace forums Chapter 6: Trade unions and employers' organisations Chapter 7: Dispute resolution Part A: The Commission for Conciliation, Mediation and Arbitration (CCMA) Parts D and E: The Labour Court and the Labour Appeal Court Chapter 8: Unfair dismissal The basic principles Automatically unfair dismissals Other unfair dismissals Dismissal based on misconduct Dismissal based on incapacity Dismissal based on operational requirements Disputes about unfair dismissals and unfair labour practices Onus in dismissal disputes Remedies for unfair dismissal and unfair labour practices Transfer of the contract of employment Chapter 9: General provisions Temporary employment services Contracts of employment General duties of employers The Basic Conditions of Employment Act 75 of Chapter 1: Definitions, purpose and application of the Act Purpose of the Act (Section 2) Application (Section 3) Inclusion of provisions in the contracts of employment (Section 4) Invalidity of agreements (Section 5) Chapter 2: Working time Regulation (Section 7) Ordinary hours of work (Section 9) Overtime (Section 10) Extended ordinary daily hours of work (Section 11) Averaging hours of work (Section 12) Determination of hours of work by the Minister (Section 13) Meal intervals (Section 14) Daily and weekly rest periods (Section 15) Pay for work on Sundays (Section 16) Night work (Section 17) Public holidays (Section 18) Exclusions Emergency work Chapter 3: Leave Annual leave (Sections 20 and 21) Sick leave (Sections 22 to 24) Maternity leave (Section 25) Protection of employees before and after the birth of a child (Section 26) Family responsibility leave (Section 27) Leave in excess of entitlement (Section 19) Exclusions (Sections 19,28, and 36) Chapter 4: Remuneration, deductions and notice of termination Payment of remuneration and deductions (Sections 32 to 35) 255

7 xiv LABOUR RELATIONS IN SOUTH AFRICA Chapter 5: Termination of employment Conditions attached to the termination of employment (Sections 36 to 42) Exclusions (Section 36) Particulars of employment (Section 29) Informing employees of their rights (Section 30) Keeping of records (Section 31) Payment of and Information about remuneration (Sections 32 and 33) Certificate of service (Section 42) Chapter 6: Prohibition of employment of children and forced labour Prohibition of employment of children (Sections 43 to 48) Prohibition of forced labour (Section 48) Chapter 7: Variation of basic conditions of employment Variation by agreement (Section 49) Variation by the Minister (Section 50) Chapter 8: Sectoral determination Sectoral determination (Section 51) Investigation and report (Sections 53 to 56) Making sectoral determinations (Section 55) Period of Operation of sectoral determination (Section 56) Legal effect of sectoral determination (Section 57) Chapter 9: Employment Conditions Commission Establishment of Employment Conditions Commission (Section 59) Composition of the Commission (Section 60) Public hearings (Section 61) Report by the Commission (Section 62) Chapter 10: Monitoring, enforcement and legal proceedings Appointment of labour inspectors (Section 63) Functions of labour inspectors (Section 64) Powers of entry (Section 65) Powers to question and inspect (Section 66) Co-operation with labour inspectors (Section 67) Securing an undertaking (Section 68) Compliance order (Sections 69 to 71) Appeals (Section 72) Orders of the Labour Court (Section 73) and the consolidation of proceedings (Section 74) Payment of interest (Section 75) Proof of compliance (Section 76) Jurisdiction (Section 77) Protection of the rights of employees (Sections 78 to 81) Chapter 11: General delegation (Section 85) Deeming of persons as employees (Section 83) Regulations (Section 86) Codes of good practice (Section 87) Obstruction, undue influence and fraud (Section 92) Penalties (Section 93) Transitional provisions: Schedule

8 CONTENTS xv 7.6 The Employment Equity Act 55 of An overview of the Act Provisions Elimination of unfair discrimination Prohibition of unfair discrimination Medicai testing Psychometric testing Disputes concerning Chapter 2 of the Act Bürden of proof Affirmative action Duties of designated employers Affirmative action measures Consultation with employees Matters for consultation Disclosure of Information Analysis Employment equity plan Report Publication of report Successive employment equity plans Responsibility for monitoring and Implementation Dutyto inform Income differentials Commission for Employment Equity Monitoring, enforcement and legal proceedings General Implementing employment equity The Broad-Based Black Empowerment Act 53 of The strategy for the advancement of B-BBEE B-BBEE codes To whom the codes apply How the codes work, How the codes apply to small enterprises Implications of BEE codes for the management of labour relations Industry charters Amended Codes of Good Practice Women Empowerment and Gender Equality Bill The Skills Development Act 97 of The National Skills Authority Sectoral Education and Training Authorities (SETAs) The National Skills Fund Labour centres The Skills Development Flanning Unit., Offences The Skills Development Levies Act 9 Of Calculation of a levy Payment of a levy Appointment and powers of inspectors Undertakings and compliance orders Offences Proof of accuracy of Statement The Occupational Health and Safety Act 85 of 1993 as amended by the Occupational Health and Safety Amendment Act 181 of Application of the Act Advisory Council for Occupational Health and Safety (Sections 2 to 6) An employer's duties (Sections 8 to 13) An employee's duties (Sections 14 and 15) Health and safety representatives (Sections 17 and 18) Health and safety committees (Sections 19 and 20) 289

9 xvi LAßOUR RELATIONS IN SOUTH AFRICA Inspectors (Sections 28 to 32) The Compensation for Occupational Injuries and Diseases Act 130 of 1993 as amended by the Compensation for Occupation Injuries and Diseases Act 61 of Death of an employee (Section 54) The Unemployment Insurance Act 63 of 2001 as amended by the Unemployment Insurance Amendment Act 32 of The Unemployment Insurance Fund Claiming benefits Enforcement The Unemployment Insurance Board The Unemployment Insurance Contributions Act 4 of Acts pertaining to aspects of Information in the workplace The Promotion of Access to Information Act 2 of The Protection of Personal Information Act 4 of The Protected Disclosures Act 26 of The Employment Services Act 4 of MANAGING LABOUR RELATIONS IN THE WORKPLACE 313 Andrew Levy 8.1 Introduction The employment relationship as a source of rights and obligations Employee misconduct, discipline and dismissal Termination of employment The definition of the term 'dismissal' Automatically unfair dismissals Dismissals based on disciplinary reasons Elements of procedural faimess in respect of terminations Procedure in dismissals for misconduct Requirements for a fair hearing Representation at a hearing Representation by a fellow employee or shop Steward Outside representation: friends, spouses, lawyers and Consultants Representation by full-time trade union officials The right to an Interpreter Additional preparations Administrative preparations Decisions on holding joint or individual hearings Why should an employer hold formalised hearings at all? : an alternative approach The outside chairperson Appeal hearings Company offences that are also criminal offences Employee refusal to attend hearings Substantive faimess Warnings Types of offences Validity of warnings Completing disciplinary forms Suspension from employment Suspension on füll pay Suspension without pay as a disciplinary measure Demotions Transfers Resignation to avoid dismissal Constructive dismissal Common forms of misconduct. 342

10 CONTENTS XVII Misconduct involving acts of dishonesty, unfair competition, and similar breaches of the duty of good faith Breach of confidentiality Unfair competition Misconduct relating to assault, fighting or harassment Acts of misconduct relating to timekeeping and attendance Negligence as a form of misconduct Misconduct in relation to drink or drugs Internet and computer-related misconduct Impossibility of Performance Is the refusal to work overtime misconduct? Poor work performance/incapacity Poor work Performance Incapacity resulting from illness Dismissals based on operational requirements Fair and valid reason Consultation prior to termination Parties to be consulted Commencement of consultations Prior notification Steps to avoid or minimise dismissals Steps to mitigate the adverse effects of dismissals (retrenchments) Implementation of agreed or fair selection criteria Last-in, first-out (LIFO) The LIFO method of selection and the 'bumping' problem Using skill levels as the method of selection Severance pay Offer of re-employment Changes in employment practice and the operational requirement used in other contexts Grievance procedures Grievance procedures defined The need for grievance procedures Open-door policy Grievance procedures in different organisations Grievance procedures in practice Utilisation of the grievance procedure Levels for the resolution of disputes Benefits of an effective grievance procedure A methodology for making practica! decisions in the field of labour management The 'Could I' question The'Should I'question Will I get away with it? Will it come as a surprise? COLLECTIVE BARGAINING AND ORGANISATIONAL RIGHTS 407 Robert Venter 9.1 Introduction 4ii 9.2 South African collective bargaining in brief The duty to bargain Representivity Sufficient representation Majority representation Thirty per cent membership Organisational rights Trade union access to the workplace Deduction of union dues Trade union representatives Leave for trade union activities Disclosure of Information 418

11 xviii LABOUR RELATIONS IN SOUTH AFRICA Establishing thresholds of representativity Exercise of organisational rights Disputes about organisational rights The collective bargaining process Duty to bargain Bargaining content Bargaining conduct Bargaining styles Bargaining levels and structure Bargaining agents Trade unions Employers' organisations Collective agreements The legal effect of collective agreements Disputes about collective agreements Union security arrangements Agency-shop agreements Closed-shop agreements Bargaining structures Bargaining councils Statutory councils Workplace forums NEGOTIATION 435 Andrew Levy 10.1 Introduction Defining negotiation Distributive bargaining Integrative bargaining Intra-organisational bargaining Attitudinal structuring, and building relationships Internal factors that have an impact on negotiations Bargaining power Legitimate power Referent power Expert power Coercive power Reward power External factors that have an impact on negotiations Economic climate Political conditions Technology Bargaining in good faith The arguments used in wage negotiations Affordability Comparability Cost of living Productivity Public policy Negotiating tactics Manipulation of data Misleadingthe Opposition Emotive ploys Switching roles Negotiating strategies Walking away Dual concerns Contingent outcomes and the 'prisoner's dilemma' The negotiating process Preparation Collection of data and all relevant Information Establishing positions Setting out objectives Establishing the tone of the proceedings Opening stages Presenting the argument Dealing with conflict The outcome Contend 455

12 CONTENTS xix Concede Compromise DISPUTE RESOLUTION 459 Andrew Levy 11.1 Introduction: Employment and employment-related disputes The Labour Relations Act and its approach to disputes Stage 1 of the dispute resolution procedure Stage 2 of the dispute resolution procedure Stage 3 of the dispute resolution procedure Disputes of right and disputes of internst Dispute of right Disputesofinterest The duty to bargain Models/methods of conflict resolution.,, Mediation/conciliation Fact finding The role of the courts The Labour Court The Labour Appeal Court The Constitutione! Court Data on disputes and dispute resolution In-company means of dispute resolution WORKER PARTICIPATION IN SOUTH AFRICA 503 Robert Venter 12.1 Introduction Defining worker participation Objectives of worker participation Ethical or moral objectives Socio-political objectives Economic objectives More effective decision-making Increased job satisfaction Better commitment to quality improvement Management-employee ratio Labour relations Improved communication with in organisations Increased productivity Cost control Forms of worker participation Consultation Collective bargaining Joint decision-making Co-management Self-management Financial participation Implementing worker participation Suggestion schemes Task forces and teams Dedicated work teams Job enrichment Quality circles Financial participation Employee stock-ownership plans (ESOPs) Workplace forums Consultation Joint decision-making Disclosure of Information Dissolution of workplace forums Disputes relating to workplace forums Essential ingredients for the success of worker participation Management commitment Organisational culture Management style The structure of the Organisation 524

13 XX LABOUR RELATIONS IN SOUTH AFRICA Ongoing assessment of the participative process Education and training Incentives and rewards Trade union support, Effective engagement by subordinates INDUSTRIAL ACTION 531 Andrew Levy 13.1 Introduction A brief historical examination of industrial action in South Africa The emerging union movement The Industrial Court, the unfair labour practice and the rise of legalism ( ) Centralised collective bargaining The Labour Relations Act 66 of The seasonal pattern of strike activity in South Africa Is South Africa strike prone? Developmental stages of legislative response to industrial action Repression of industrial action Tolerance of industrial action The right to strike and recourse to lockout The legal dimensions of industrial action Introduction Types of strike action Go-siows Work-to-rule Work-ins or sit-ins Other forms of industrial action Lockouts Protected strikes and lockouts under the 1995 Labour Relations Act The refusal to bargain Secondary (sympathy) strikes Strikes and lockouts in response to dismissals for operational requirements Limitations on the right to strike or recourse to lockout Strikes and lockouts in compliance with the Act Strikes and lockouts not in compliance with the Act (wildcat strikes) Specific provisions relating to the right to strike Picketing Essential services Maintenance services Replacement labour Socio-economic protest action The practicalities of strike management ETHICS IN LABOUR RELATIONS 585 Hanneli Bendeman 14.1 Introduction The ethics-labour relations Interface Ethical dilemmas and conflict in the workplace Introduction A code of ethics and a code of conduct Ethics Ethics and the labour relationship Ethics and the law Integrity in the labour market Business ethics Principles Norms Standards Stakeholders Ethics and governance 600

14 CONTENTS XXI The King Committee on Corporate Governance An ethics Management Programme Approaches to business ethics and labour relations The scientific approach The managerial approach The organisational interest approach The guidance approach The control approach The development approach The gap between business ethics and labour relations Ethical decision-making The utilitarian approach The rights approach The fairness or justice approach The common good approach The virtue approach SOME FUTURE PATTERNS AND PREDICTIONS FOR LABOUR RELATIONS IN SOUTH AFRICA 611 Robert Venter 15.1 Introduction Political transition Economic transition Labour market flexibility and international competition The changing face of the employment relationship Social transition 619