February 25, 2000

The Labour Relations Act aims to promote economic development, social justice, labour peace and democracy in the workplace.

It sets out to achieve this by fulfilling the primary objectives of the Act, which are:

• To give effect to and regulate the fundamental rights conferred by section 27 of the Constitution, including the right to fair labour practices, to form and join trade unions and employer’s organisations, to organise and bargain collectively, and to strike and lock out.
• To provide a framework for regulating the relationship between employees and their unions on the one hand, and employers and their organisations on the other hand. At the same time it also encourages employers and employees to regulate relations between themselves.
• To promote orderly collective bargaining, collective bargaining at sectoral level, employee participation in decision-making in the workplace and the effective resolution of labour disputes.

Joining Organisations. [Chapter 2]
Strong trade unions and employer’s organizations are necessary for effective collective bargaining. Collective bargaining is an important way of regulating industrial relations and of determining employees’ wages and benefits.

In the past trade unions struggled to secure organizational rights (such as permission to enter a workplace or conduct union meetings there). This was a major hamstring for trade unions as this right is essential for building the capacity of trade unions to enable them to bargain more effectively.

The Act therefore sets out to strengthen trade union organisation by supporting freedom of association rights, which enable employees and job seekers to participate freely in union activities, and by supporting organisational rights, which makes it easier for unions to organise employees.

The Act also makes sure that no obstacles exist that will prevent employers to join employers’ organisations.

Even though employers’ organizations do not have to register with the Department of Labour, they are advised to do so. If they do not register, there is no guarantee for members that thee will be a proper constitution or control over finances. Registration provides some check on abuse, corruption and unconstitutional practices such as racism. It also affords certain rights to unions such as the right to participate in forming a federation of trade unions or a federation of employers’ organizations and the right to conclude collective agreements.

If there is a dispute about the interpretation or application of any of the provisions in this chapter, then the party who alleges that a right has been infringed must prove the facts of the conduct. The burden then shifts to the party who engaged in that conduct to prove that the conduct did not infringe any provision of the chapter.

Organizing and Collective Bargaining [Chapter 3]
The Act provides for the following organizational rights:

* Trade union access to a workplace.

This includes the right of unions to enter an employer’s premises to recruit or meet members, hold meetings with employees outside their working hours and conduct elections or ballots among its members on union matters.

* Deductions from employees’ wages of trade union subscriptions by the employer for the trade union.

* Election of trade union representatives at a workplace.

The more members the trade union has, the more representatives it can elect. These representatives can assist and represent employees in grievance and disciplinary proceedings, monitor the employer’s compliance with labour laws, etc.

* Leave for trade union activities during working hours.

Union representatives are entitled to reasonable time off with pay during working hours to perform their functions as union representatives, or receive training in the functions of union representatives.

Strikes and lock-outs. [Chapter 4]
The Act grants employees the right to strike. It also grants employers recourse to lock out employees. Some of the issues over which a strike or lock-out might be held are wage increases, a demand to establish or join a bargaining council, a demand for organizational rights, etc.

Strikes can be either protected or unprotected. If a trade union wants to embark on a protected strike, then certain requirements have to be met. One of the most important requirements is that the trade union must give the employer at least 48 hours notice of its intention to embark on a strike action. If the employer is the State, then 7 days notice is required.

Once a strike is protected employees may not be dismissed for going on strike, they may not get a court interdict to stop the strike, employees do not commit breach of contract by going on strike and employers may not institute civil proceedings against employees on strike.

Participation in workplace decision-making. [Chapter 3]

The Act provides three options for promoting centralised collective bargaining, i.e.:

* Collective agreements

Employers and a trade union can negotiate a collective agreement, providing for joint negotiations. The terms and conditions of the collective agreement will then apply only to the parties to the agreement and its members.

* Bargaining Councils

May negotiate agreements on a range of issues, including wages and conditions of work, benefits, training schemes, and disciplinary and grievance procedures. Council agreements may be extended to all employers and employees in the council’s registered scope of representivity, as long as certain requirements are met.

* Statutory Councils

Is a weaker version of a bargaining council. While the parties to a statutory council can draw up agreements on wages and working conditions, these agreements cannot be extended to employers and employees outside the council. However, agreements on training schemes, provident or pension funds, medical schemes and similar benefit schemes can be extended by the minister to cover all employers and employees in that sector.

1. Registering and managing organizations. [Chapter 6]
   Provision of workplace forums is a major innovation in the Act. These forums are committees of employees elected by employees in a workplace. They will meet employers on a regular basis for consultation on workplace issues.
   
   The general functions of workplace forums are to promote the interests of all employees (not just those of trade union members), to enhance efficiency in the workplace, to be consulted by the employer on certain matters and to participate in joint decision-making on other matters.
2. Settling disputes. [Chapter 7]
   The Act fundamentally changes dispute resolution institutions and procedures. Procedures are planned to be simple and efficient. The Act promotes private procedures negotiated between parties for the resolution of disputes.
   
   It establishes an independent body, the Commission for Conciliation, Mediation and Arbitration (CCMA), which will actively seek to resolve disputes through conciliation and arbitration. It also establishes new courts, namely the Labour and Labour Appeal court, which are the only courts which can hear and decide labour disputes arising from 11 November 1996, and which have more authority and power than the previous courts.
3. Unfair treatment in the workplace. [Chapter 8]
   The Act provides for the regulation of unfair treatment in the workplace via a provision on unfair labour practices. In terms of the Act the following treatments amount to unfair labour practice, i.e.:
   
   * Discrimination against employees or applicants for employment.
   * Discrimination based on any arbitrary reason, e.g. race, gender, sex, etc.
   
   Discrimination can be either direct (e.g. employer refuses to pay a woman doing the same job as a man the same wage just because she is a woman. It can also occur in an indirect manner, (e.g. employer rules that employees who are absent from work for longer than 30 days in a year will not get a bonus).
   
   Treatment will however not amount to an unfair labour practice where the employer applies an affirmative action policy or where he discriminated on the ground of the inherent requirements of a particular job.
4. Discipline and Dismissals. [Chapter 9]
   The Act provides three grounds on which an employer may dismiss an employee, i.e. where the employee is guilty of misconduct, for incapacity and for operational reasons (retrenchment).
   
   Dismissal must however be the last resort for an employer. In order for a dismissal to be valid, it has to be fair both in terms of substance and procedure. In other words, the dismissal must be for a substantive reason such as breaking a rule of conduct in the workplace where the rule was valid and reasonable, the employee knew about the rule, the employer applied the rule consistently and dismissal is the appropriate step to take against the employee.
   
   Even if there are very good substantive reasons for a dismissal, an employer must follow a fair procedure before dismissing the employee. This requires the employer to conduct an investigation into the alleged misconduct. The employer must inform the employee of the investigation, the union should be consulted before the inquiry commences, the employee should be given adequate time to prepare his or her response to allegations leveled against him or her and the employee has the right to be assisted by a shop steward or other employee.
   
   An employee who feels that he or she has been unfairly dismissed, can lodge a complaint with the Commission on Conciliation, Mediation and Arbitration (CCMA). If a dispute remains unresolved, the employee may refer it to arbitration where it concerns misconduct or incapacity, or to the Labour Court where it concerns retrenchment. The employee only has to prove the dismissal and then the onus shifts to the employer to prove that the dismissal was for a fair reason.
   
   The Commission or Labour court can either order reinstatement of the employee, pay from the date of dismissal until the last day of the court or arbitration proceedings if the dismissal is only procedurally unfair, up to two years’ wages for automatically unfair dismissals and a maximum of one years’ wages if the unfair dismissal is for misconduct, incapacity and retrenchments.
5. Obligations imposed by the Act
1. Employer
   In terms of the organizational rights of registered trade unions, the employer is obliged to grant to trade union representatives access to its premises in order to recruit members or communicate with members or otherwise serve members’ interests. The Act also obliges the employer to grant leave of absence to trade union representatives to carry out the work of the union. Where an employee joins a trade union and authorizes the employer to deduct membership fees, the employer is obliged to make such deductions as soon as possible and must then remit the membership fees to the relevant trade union. The employer is also obliged to disclose to a trade union representative any relevant information that will enable the representative to perform his or her functions effectively. [Chapter 3]
   
   In terms of dismissal of employees, the Act obliges the employer to follow a fair procedure. This includes the requirements that the employer should conduct investigations into alleged cases of misconduct, inform the employee of the investigation, consult the union before the inquiry commences, give the employee adequate time to prepare his or her response to allegations leveled against him or her and the informing the employee of his or her to be assisted by a shop steward or other employee [Chapter 9]
   
   Employers are also obliged to keep records of any collective agreements, arbitration awards or wage determinations.
2. Employee
   In terms of the registration of trade unions, the Act obliges trade unions to keep proper records of its income, expenditure and liabilities. To this end, financial statements have to be prepared within six months after the end of each financial year.
   
   Registered trade unions are also obliged to keep a list of its members, the minutes of any meetings held and the ballot papers for a period of three years.
   
   They must also provide the Registrar of Labour Relations with financial reports, lists of members, changes of addresses, information on the election of its office bearers etc. [Chapter 6: Part A]
3. Registrar of Labour Relations
   The Act makes provision for the appointment of a Registrar of Labour Relations. It obliges the registrar to keep a register of registered trade unions, registered employers’ organizations, federations of trade unions, federations of employers’ organizations and councils. If a new entry is made or removed from the register, the Registrar must give notice thereof in the Government Gazette within 30 days of the entry or deletion [Chapter 6: Part C].

COMPILED BY THE PARLIAMENTARY INFORMATION SERVICES: RESEARCH