Organisational and collective bargaining rights through the lens of Marikana

Organisational and collective bargaining rights through the lens of Marikana

Authors Jan Theron, Shane Godfrey, Emma Fergus

ISSN: 2413-9874
Affiliations: Practising Attorney; Co-ordinator of the Labour and Enterprise Policy Research Group, Deputy Director of the Institute of Development and Labour Law, University of Cape Town; Senior Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 849 – 869

Abstract

This article is based on research conducted for a submission to the Marikana Commission that focused on the issue of organisational and collective bargaining rights at Lonmin as well as Implats and Amplats. It comprised an examination of the recognition agreements which the three companies had entered into with trade unions, over the decade or so before the massacre. This gave us insight into how management and trade unions were interpreting and elaborating on the organisational rights provided for in the Labour Relations Act (LRA). We were therefore able to reflect critically on those provisions, the different choices made by management and trade unions at the companies, as well as the CCMA’s and Labour Court’s interpretations of relevant legislative provisions during organisational rights disputes. The recognition agreements at Lonmin and Implats reveal an uneasy mix of the ‘old’ recognition system and the new organisational rights dispensation: the bargaining unit remains the reference point for measuring representativeness rather than the ‘workplace’; there is almost no provision for the possibility of union competition; undifferentiated thresholds are set for all the organisational rights; and thresholds are sometimes raised to protect incumbent unions from newcomer unions. The agreement at Amplats, however, is an exception. The article concludes that the limited organisational rights dispensation provided by the LRA has not achieved the right balance between labour relations stability and workplace democracy.

Speedy social justice: Streamlining the statutory dispute resolution processes

Speedy social justice: Streamlining the statutory dispute resolution processes

Authors Andre van Niekerk

ISSN: 2413-9874
Affiliations: Judge of the Labour Court
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 837 – 848

Abstract

Speedy social justice is the fundamental value on which the statutory dispute resolution system is based. Systemic delays in the processing of labour disputes threaten to undermine statutory goals, especially in the Labour Court. The appointment of a Rules Board, the creation of additional courts in Johannesburg and the institution of case management will improve the adjudication process. The latter will require the transfer of the management of litigation from practitioners to judges. In the case of the CCMA, delays in the determination of disputes are primarily a function of the duplication of workplace processes. Disputes appear to be referred to a statutory mechanism routinely, regardless of the merits of the dispute. The CCMA’s rules (which do not require a claim to be articulated in any detail), the application of the onus of proof and the reluctance of commissioners to grant costs orders encourage this practice. Arbitration proceedings are unnecessarily protracted, and review procedures unnecessarily burdensome. The statutory imperative of speedy social justice requires an evaluation of the statutory dispute resolution system as an integrated whole, and a revision of policies and practices that serve to frustrate rather than facilitate the efficient, inexpensive and expeditious resolution of labour disputes.

The rule of law, fairness and labour law

The rule of law, fairness and labour law

Authors Johan Froneman

ISSN: 2413-9874
Affiliations: Justice of the Constitutional Court
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 823 – 836

Abstract

The manner in which courts have dealt with fairness in labour law is not the only obstacle to achieving the goals of the rule of law. This article presents a different perspective on what the rule of law means under the Constitution, particularly in relation to the aims of transformation. An examination of the formal and substantive conceptions of the rule of law, as well as the concepts of economic efficiency and privilege, shows that historically privileged white people must confront the reality of their past privilege and historically disadvantaged black people must acknowledge the responsibility placed on them by the Constitution. Also, it is not impossible to balance a proper understanding of the substantive demands of the rule of law with a realistic and pragmatic understanding of economic efficiency. It concludes that in the workplace we are not yet squarely confronting the hard questions that the demands of constitutional transformation ask of us. Employers and workers need to understand and trust each other’s perspective in order for there to be lasting labour stability and peace. If labour lawyers work towards this, we may be able to establish a reasonable degree of fairness and stability in our labour relations.

Case Note: Protecting the unwed woman against automatically unfair dismissals for reasons relating to pregnancy: A discussion of Memela & another v Ekhamanzi Springs (Pty) Ltd (2012) 33 ILJ 2911 (LC)

Case Note: Protecting the unwed woman against automatically unfair dismissals for reasons relating to pregnancy: A discussion of Memela & another v Ekhamanzi Springs (Pty) Ltd (2012) 33 ILJ 2911 (LC)

Authors Nicola Whitear-Nel, Brenda Grant, Asheelia Behari

ISSN: 2413-9874
Affiliations: Senior lecturer, University of KwaZulu-Natal; Professor, Grant research fellow, University of KwaZulu-Natal; PhD candidate, University of KwaZulu-Natal
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 106 – 118

Abstract

None

Case Note: Between a rock and a hard place – Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for Conciliation, Mediation & Arbitration & others

Case Note: Between a rock and a hard place – Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for Conciliation, Mediation & Arbitration & others

Authors Neil Coetzer

ISSN: 2413-9874
Affiliations: Senior Associate, Cowan-Harper Attorneys
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 94 – 106

Abstract

None