Statutory conciliation as a labour-dispute-resolution mechanism
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
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- Date Issued: 2024-04
South African local labour forums in the municipal sector: Structure, functioning and performance
- Authors: Chabalala, Siphiwe
- Date: 2022-04
- Subjects: Labor productivity -- Public services -- South Africa , Labor disputes -- South Africa , Labor relations
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/57567 , vital:58075
- Description: The South African Labour Relations Act 66 of 1995 provides for the establishment of statutory, yet voluntary, employee participation structures in the form of Workplace Forums. These Workplace Forums were modelled on the system of German Works Councils. The establishment of Workplace Forums solely lies with a representative trade union in a workplace of more than 100 employees. Trade unions have not been enthusiastic about the idea of Workplace Forums, this is because they view these structures as a mechanism that undermines collective bargaining due to the limitations that come with consultation as a process in decision-making. Trade unions would rather have powers of negotiation, for which Workplace Forums do not cater. Consequently, very few Workplace Forums have been established in South Africa. In the South African Municipal sector, there are Local Labour Forums which are solely for employee participation over and above matters reserved for collective bargaining in the South African Local Government Bargaining Council. Local Labour Forums have powers of consultation and negotiation on matters that affect labour relations and employees in the municipality. Local Labour Forums became an area of interest because of the limited opportunities in South Africa to study Workplace Forums. The aim of the study was to investigate Local Labour Forums as an example of Workplace Forums as employee participation structures. Therefore, the main research question was: how are these Local Labour Forums structured, what are the details of their functioning and what are the perceptions of the participants in these structures of their influence on performance in the workplace? The aim was translated into four objectives. The first objective was to explore the structure and functioning of Local Labour Forums. The second objective was to explore the perception of the parties to Local Labour Forums, namely, councillors, managers, and unions regarding their relationships. The third objective was to explore the agreements concluded by the parties and their levels of satisfaction with the agreements. The fourth objective was to explore the perception of the parties to Local Labour Forums of the contribution of the Local Labour Forums to the service delivery of the municipality. This was an exploratory and descriptive qualitative study. The population of the study was the Local Labour Forums in two metropolitans, six districts and thirty-one Eastern iv Cape municipalities. The sampling method used was non-probability purposive sampling. Primary data was sourced using both interview guidelines and a short survey questionnaire. The data obtained was transcribed and thematically analysed using Tesch’s (1990) content analysis as a method. The findings of the study indicated that while both Workplace Forums and Local Labour Forums are workplace committees, Local Labour Forums operate differently from Workplace Forums in terms of their structure and functioning. A major difference between these two structures is that Local Labour Forums are joint consultation committees, comprising of both the employer and employee representatives; whereas Workplace Forums are structures which only comprise of employees who then meet with the employer on a regular basis. The processes used for both these structures are somewhat different because Local Labour Forums have powers of consultation and negotiation, whereas Workplace Forums only have the powers to consult and jointly make decisions, not to negotiate. Adding to these differences is that Local Labour Forums have powers to establish subcommittees who will report back to this particular structure, whereas nothing about subcommittees is mentioned for Workplace Forums. In terms of the findings gathered on Local Labour Forums based on the abovementioned objectives, it was found that the establishment of these municipal structures are mandated by the South African Local Government Bargaining Council. Local Labour forums discuss matters of mutual interest which pertain to their respective municipalities. The parties to the Local Labour Forums are from both the employer and employee components. The employer component consists of senior municipal management/directorates and councillors. The employee component consists of the two in-house trade unions, the South African Municipal Workers’ Union and the Independent Municipal and Allied Trade Union. The fact that these parties are from different backgrounds in terms of conscience does not affect the relationships and agreements of the forum, because they are all about what is good for the structure. When it comes to performance of the Local Labour Forum, it was discovered that these structures are not directly involved in delivering services to the municipalities, but the decisions taken influence how the municipalities deliver their services. , Thesis (MA) -- Faculty Faculty of Business and Economic science, 2022
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- Date Issued: 2022-04
The effects of industrial labour disputes on development in South Africa
- Authors: Mgubo, Xolelwa
- Date: 2017
- Subjects: Labor disputes -- South Africa , Strikes and lockouts -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: http://hdl.handle.net/10948/14014 , vital:27388
- Description: On 16 August 2012, the South African Police Service fired upon striking miners in Marikana, South Africa, resulting in the death of 34 mineworkers. The purpose of this study is to examine the effects of protracted violent industrial labour disputes on socio-economic development in South Africa. The study explores the root causes of labour disputes in Marikana and considers strategies that can be employed to avoid similar violent and destabilising strikes in the mining and other industries. This research confirms that presumably the pursuit of wage increase is still the primary cause of violent strikes in the country. Furthermore, the research shows clearly that working hours, work conditions, sympathy, and demands from employees and trade unions are major causes of labour disputes. The findings also show that amongst other things participation of employees in work related issues like policy formulation can reduce prevalence of labour disputes. The study also reveals that communication between workers and employees in work places can help both parties to discuss issues before extreme measures are taken.
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- Date Issued: 2017
South African labour law and conflict resolution: towards a theoretical critique
- Authors: Jooste, Nico
- Date: 2016
- Subjects: Labor disputes -- South Africa , Conflict management -- South Africa , Mediation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MPhil
- Identifier: http://hdl.handle.net/10948/7417 , vital:21357
- Description: The intention of this treatise is to reflect on the concept, as well as on the theory, of conflict resolution and to investigate whether the mechanisms of true conflict resolution are afforded within the structures and instruments provided for by the South African Labour Relations Act (66 of 1995). The Act aims to give effect to one of its primary purpose of advancing labour peace by attempting to promote the effective resolution of labour disputes through a very sophisticated system of dispute resolution. What is of great significance is that The Commission for Conciliation, Mediation and Arbitration (CCMA) has been experiencing an increasingly high rate of disputes referred to it since its inception in 1996. In my review I established that the dispute resolution system is a construction of rules and statutes which concentrates on rights, rather than on conflict management. However, rights only imperfectly reflect basic human needs, which continue to dominate human behaviour mechanisms that indeed facilitate processes and guidelines of resolving labour disputes, but fail to acknowledge and make provision for the resolution of a latent or manifest conflict. The instruments afforded by the Labour Relations Act (66 of 1995) fail to explore and entertain the needs most relevant and significant to the perception of social conflicts such as security, identity, personal development and recognition as suggested by conflict theorists and scholars. It also fails to acknowledge that parties to a dispute undergo psychological changes that could flow over to community changes and group dynamics as the parties become polarised and become more contentious as the conflict escalates. My review gave more substance to my original assumption that the current South African labour dispute resolution system does not harmonize itself with its own objective of promoting true labour peace.
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- Date Issued: 2016
A comparison of the labour dispute resolution systems of South Africa and Swaziland
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
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- Date Issued: 2007
The variation of conditions of employment
- Authors: Horo, Lindile
- Date: 2002
- Subjects: Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11043 , http://hdl.handle.net/10948/282 , Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Description: This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.
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- Date Issued: 2002
A comparative study of the Ugandan and South African labour dispute resolution systems
- Authors: Ninsiima, Diana
- Subjects: Labor disputes -- Uganda , Labor disputes -- South Africa , Labor -- Law and legislation -- Uganda , Labor -- Law and legislation -- South Africa , Industrial relations -- Uganda , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9437 , http://hdl.handle.net/10948/d1020908
- Description: The purpose of the study is to compare the dispute resolution systems of Uganda and South Africa. The historical developments of both systems were discussed so as to understand the factors that contributed to their growth or demise. From the study, it is clear to see that the Ugandan system’s development has been greatly affected with every regime change, between 1894 to the present. The developments that were tackled are closely related to various historical and political phases through which Uganda has passed and these significant periods are 1894- 1962 (pre-independence), 1962-1971 (Obote 1), 1971-1979 (Amin), 1980-1985 (Obote II), 1986- 2006 (NRM) and 2006 to the present Multi-party system. The South African system on the other hand is divided into four eras with the first one beginning from 1870 to 1948, the second era from 1948 to 1979, the third from 1979-1994 and the last era from 1994 to the present date. The South African system has been greatly influenced by the past government’s move to create a dual system of labour relations that was eventually removed. The two systems were compared using a framework created basing on literature by ILO (2013), Brand, Lotter, Mischke, & Steadman (1997) and Thompson (2010). The framework for comparison outlines the elements of a dispute resolution which include the nature of the dispute, coverage, processes, avenues and human resources. It further presents the criteria and possible indicators to evaluate the performance of the system which are legitimacy, efficiency, informality, affordability, accessibility, a full range of services, accountability and resources. The comparison highlighted the various differences between both countries. The study established differences in the nature of disputes as the Ugandan system does not differentiate between the different types of dispute unlike the South African system which differentiates them and has different avenues for their settlement, the fact that the South African system has a number of avenues to cater to the different types of disputes unlike the Ugandan system which only has one route beginning with the Labour officers and the Industrial court if unresolved. An evaluation of the performance of both systems brought to light the number of changes the Ugandan system has to undergo so as to meet the expectations of the International Labour Organisation and have an effective system. The South African system proves to be more legitimate, efficient, informal, affordable, and accessible than the Ugandan system. Further still the South African system provides a full range of services is more accountable and has enough resources when compared with the Ugandan system. Recommendations have been proposed at the end of the study, mainly for the Ugandan system as the South African system appears to be more advanced and more effective in dispute resolution by international standards. The recommendations suggested are creating an independent dispute resolution system, mass sensitisation on labour rights, accreditation of private agencies, create a separate dispute resolution system for the informal sector, proper routing of disputes, creation of an independent body to monitor the national system, encouraging the creation of more democratic workplaces, re-establish the industrial court and finally, employing and training more labour officers.
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