The bounds of the right to strike in support of organisational rights by way of section 21 of the LRA

Section 21 of the Labour Relations Act 66 of 1995 states that any registered trade union may notify an employer in writing that it seeks to exercise one or more of the organisational rights conferred on it by Chapter III of the Labour Relations Act, 66 of 1995 (as amended) (“the LRA”) in a workplace.
Within 30 days of receiving the notice, the employer must meet with the trade union and endeavour to enter into a collective agreement which regulates the trade union’s exercise of organisational rights in the workplace.

Introduction

If a collective agreement is not concluded either party may refer the dispute in writing to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) for it to be resolved through conciliation. If the dispute remains unresolved after conciliation then either party may refer the matter to arbitration. It must be noted that the term ‘may’ is not peremptory, and therefore the trade union is not obliged to refer the dispute to arbitration. Rather it is clear that the trade union may, at this juncture, make an election to either refer the dispute to arbitration, or to engage in strike action.

The right to strike

Section 23(2)(c) of the Constitution guarantees the right to strike. A strike will be lawful if it pertains to a matter of mutual interests (i.e. is a not a dispute about a right to which a party is entitled) and complies with the procedural requisites of section 64. Section 64 provides for the following requirements:
•    The issue in dispute must have been referred to the CCMA, and
o    A certificate stating that the dispute remains unresolved must have been issued; or
o    A period of 30 days, or any extension of that period agreed to between the parties to the dispute, must have elapsed since the referral. After that
•    48 hours’ written notice of the commencement of the strike must have been given to the employer.

Furthermore, section 65(2)(a) provides that a person may strike if the dispute is about matters dealt with in sections 12 to 15 of the LRA. This is an exception to the general position that employees may not strike on matters which are ordinarily able to be resolved by way of arbitration (which matters are generally disputes of right). These provisions set out the organisational rights afforded to trade unions. Section 12 of the LRA specifically deals with a trade union’s right to have access to the workplace in order recruit and/or communicate with its members. Sections 13 to 15 deal with deductions of trade union levies, the right to trade union representatives and the right to leave for trade union activities.

One question which arises is whether a trade union may strike in support of a demand for organisational rights in circumstances where the demand, had the trade union elected to arbitrate the matter instead, would be unenforceable.  The Labour Court had regard to this question in the case of Bidvest Foods Services (Pty) Ltd v National Union of Metalworkers of SA & others (2015) 36 ILJ 1292 (LC). Bidvest sought to interdict the members of National Union of Metalworkers of South Africa (‘NUMSA’) from embarking on a strike in pursuit of organisational rights. Bidvest argued that the strike action was unprotected because it was in pursuit of unlawful demands. In essence, Bidvest argued that the demands were unlawful because NUMSA was trying to obtain organisational rights in an industry that fell outside the scope of NUMSA’s constitution. Bidvest argued that NUMSA was only entitled to organise workers in the metal industry, as delineated by the terms of NUMSA’s constitution. Bidvest however operated in the food services industry, which was outside the scope of NUMSA’s constitution.

Had NUMSA elected to arbitrate the matter they would have been unsuccessful. For instance in the case of SATAWU v Telekleen/Compukleen (2010) 7 BALR 768 (CCMA), a trade union’s application for organisational rights was found to be defective because the trade union sought to recruit members that fell outside the scope if its constitution. Similarly, in the case of CEPPWAWU/Pop Snacks (2009) 11 BALR 1156 (CCMA), it was held that a trade union may only operate in sectors which are delineated by the terms of their constitution.

The court’s decision

Therefore, the fundamental question which the Court had to decide was whether the strike was was in pursuit of an unlawful demand and therefore unprotected. In answering this question the Court held that strike action will be lawful if it complies with the requirements of section 64 of the LRA. In NUMSA’s case, they had met all the requirements of section 64 in that they referred the dispute to the CCMA, and the Commissioner had issued a certificate of outcome stating that the dispute remained unresolved. Therefore NUMSA’s strike was found to be lawful.

The Court held that the ight to strike is limited by section 64 of the LRA, and should not be further limited by reading into section 64 and section 65(2) the additional requirement that workers may not embark on a strike in pursuit of organisational rights for a trade union that is restricted by the scope of its own constitution. An employer then who wishes to accede to the trade union’s demands may enter into a collective agreement with the trade union in terms of section 20 of the LRA.

Conclusion

In summary, a trade union who is seeking organisational rights in terms of section 21 of the LRA has an election to refer a dispute regarding organisational rights to arbitration, or, alternatively, to embark upon strike action. If the trade union has elected to go on strike, the strike will only be lawful once it has met the criteria set out in section 64 of the LRA. Counterintuitively, the union is also entitled to elect to engage in strike action over some demands, even thought they would be unsuccessful in enforcing such demands as a matter of rights by way of arbitration.

Andrew Van Heerden is the Senior Associate & Jacques van Wyk is the Director at Werksmans Attorneys. 

What are challenges still facing the South African labour market?

The challenges facing South Africa’s labour market in 2016 have been evident in a number of recent judgements and in a variety of ongoing processes of engagement between social partners.

The introduction of a national minimum wage remains high on the policy agenda, although its relationship with job losses and job creation remains obscure.  

Numsa’s plans to launch a new trade union federation appear to have stalled, with the timing of the launch and its trade union composition still up in the air. Important court judgments on industry collective bargaining and affirmative action have been handed down, and the mining sector is still struggling to emerge from a period of industrial relations instability following a rupture in traditional union membership in the sector. All of this comes against the backdrop of a jobs crisis that shows no sign of abating.  
 
The 2015 labour law amendments have offered improved protection and job security to a class of the most vulnerable workers. At the same time there is evidence of a significant reduction in the number of jobs available. Whether this proves that better labour protection destroys jobs is hotly contested, but common sense suggests that there is at least some causal link. On the horns of a dilemma, government continues with attempts to demonstrate a commitment to worker interests. There have been no signs of change or a new path so far in 2016. It may be important not to overstate the extent to which labour laws and labour market policy can grow employment, but there is little evidence of government intervention in this area that will either stimulate employment or grow jobs in the short term.
 
There have been ongoing discussions at the National Economic Development and Labour Council (Nedlac) about the national minimum wage. Representations and public hearings on the issue took up a significant amount of time and energy in 2015 and have continued in 2016. The potential impact of a national minimum wage is that if it is set too low, in an effort to avoid destroying jobs in the lowest paid sectors, it will have little impact in higher paid sectors. On the other hand, if it is set too high, this may negatively affect jobs across the economy. The government’s public statements are, however, clear. While the appropriate wage level must still be divined, it will push ahead to introduce a minimum wage.
 
The form of increased regulation of strikes has also been under continuous debate this year. Government had, in the previous round of amendments to the LRA, proposed changes to the provisions regulating strikes, reintroducing compulsory strike ballots and increasing powers of the Labour Court to intervene in violent strikes. But these were withdrawn following trade union lobbing of the Parliamentary Portfolio Committee in 2014. Similar provisions are, however, the subject of a separate ongoing engagement process at Nedlac.

There is still some prospect that improved regulation of strikes will emerge from this process during the remainder of the year.
 
The year has also produced ongoing contestation over the effect of centralised collective bargaining. Judgement in the Free Market Foundation challenge to the extension of collective agreements to non-parties was handed down in the North Gauteng High Court, and produced claims of victory all round. Despite some of the small print, the judgement does clearly endorse the basic structure through which the LRA regulates industry bargaining. But the precise relationship between decisions taken under these provisions and the Promotion of Administration of Justice Act remains somewhat obscure.  
 
Judgment has also been handed down by the Constitutional Court in the appeal brought by the trade union Solidarity against the Department of Correctional Services in an affirmative action case. Solidarity had argued that employees in the Western Cape had been overlooked for promotion when the Department wrongly used national and not regional racial demographics in the hiring process. The case is one of a series of similar challenges brought by Solidarity against the use of national demographics and an ongoing system of race classification in hiring and promotion practices, particularly in the public service.  The Constitutional Court agreed with Solidarity that the use of national demographics alone in that case was not consistent with the provisions of the Employment Equity Act. The decision has important implications for the application of race based affirmative action in a country in which there is no even distribution of “races” across different provinces or regions.
 
Earlier in the year Solidarity had been granted an interdict to halt all employment equity promotions and appointments within the South African Police Service (SAPS) pending the outcome of its dispute with the Correctional Services Department. The Constitutional Court’s decision will undoubtedly have far reaching implications throughout the public sector.
 
Further realignment of trade union affiliations appears inevitable. Whether or not this is good for workers is a matter of some debate. But for businesses, inter-union rivalry is likely to produce a period of industrial relations instability at least until the strength of new union formations has been established. The mining industry in particular has suffered severe labour relations instability since shortly before the Marikana tragedy, in August 2012, and the growing significance of a new mining trade union has presented very significant challenges to collective bargaining in the sector.

The impact has spread to a number of other industries. It is unlikely that Cosatu’s proposal to compel industry bargaining will improve the situation, and there is little that law can do to stabilise the effects of intense inter-union rivalry in the workplace. Instead, a return to basic principles of labour management relations, and greater focus on effective industrial relations at the workplace rather than industry level is more likely to restore stability in the medium term.

Chris Todd heads the Employment & Benefits Practice at Bowman Gilfillan.

Human resource management for entrepreneurs

Pretty soon after getting your business off the ground, in delivering results for your customers and income for yourself, you, the entrepreneur, are going to need to get help from others.
You will need employees with whom to share the workload, to introduce certain skills that you don’t have or to handle the ‘admin’, which doesn’t come naturally to you (and which distracts you from the business of your business). So, you will begin to surround yourself with people. People who you would expect to be as passionate about your business as you are and who would expect to be treated as you would treat yourself … The essence of ‘Human Resource Management’ which, by the way, is not a department but the responsibility of anyone charged with achieving results through people, especially the CEO or owner, who sets the tone for the business.

Therefore, human resource management is a leadership function within an organisation that helps to align the workforce with the beliefs, intentions and goals of an organisation. It includes attracting, developing, organising and retaining necessary skills to meet customer and shareholder expectations, and to creating a company culture that staff can identify with and feel a sense of belonging and purpose – all of which helps to channel behaviour to drive the organisation towards its desired outcomes.

Driving results

Human resource management combines leadership, culture, diversity and human resource strategy to guide staffing activities and expectations within an organisation.

Entrepreneurs are very often the founders of the organisations where they work, and as such have a profound influence on the belief system and culture of the business. Culture is about shared values, it defines who we are and what we believe. What we believe drives our behaviour, and our behaviour drives results. Entrepreneurs have the responsibility to create a customer focused delivery culture within their business, which will lead staff to achieve business and organisational goals.

Leadership combines:

■ Envisioning (seeing clearly where the company is going and what it will look like at a later point);
■ Enlisting the right people to work in the company;
■ Empowering people to excel at their jobs and ensuring the activities done in the company will result in a quality product or service;
■ Evaluating through performance reviews and results;
■ Encouraging through training, recognition and rewards; and
■ Embodying assumptions and expectations through creating a culture and belief system that will produce results.

Apart from envision, which generally takes place early in the organisation development or at strategic milestones, each of the other leadership functions are human resource management functions. Human resource management enlists skills and talent through carefully planned recruitment steps:

1. Empower people through job descriptions and employment contracts;
2. Evaluate activities and outcomes through performance appraisals;
3. Encourage through performance management agreements; and
4. Embody through policies, procedures, and defined norms within the organisation.

Human resource management is therefore a leadership function in an organisation. A function that supports and develops the founder’s ideas and expectations for the business into manageable elements, for staff to know and grow into so that that they will be able to contribute to organisational goals in a meaningful and productive manner.

A legislative framework

Human resource management has a big role and responsibility in helping entrepreneurs ensure that assumptions and expectations within the organisation drive the right behaviour.

The desired outcome for human resource management being that staff align themselves with the organisation’s belief system, values, structure, and take self-directed action to help the organisation reach desired results.

Good human resource management practices combine individual and group ability, to create inspired leaders who work tirelessly to contribute towards reaching organisation goals.

Bad human resource practices create followers of the organisational vision, who require constant supervision, reminding and micro management, to do the bare minimum of what is required in their job function.

Human resource management does not end with creating a belief system and culture to drive behaviour. It also includes a legislative framework, which is necessary from an employment and compliance perspective, and introduces best practice gained from many other companies over millennia. The foundation of our South African legal practices is deeply rooted in our Constitution, and is a platform to ensure fairness and equal opportunity.

South Africa has one of the most advanced and respected human resource management legislative frameworks in the entire world. It is open and transparent, and gives both employers and employee rights and responsibilities in all circumstances of employment.

The various Labour Acts enforce basic conditions of employment; by

■ Providing a framework for dispute resolution, retrenchment, and appointing of new staff members;
■ Managing grievances and conflict in the workplace;
■ Suggesting suitable parameters in guiding collective bargaining;
■ Helping focus employment equity development and encouraging diversity; and
■ Structuring and funding for skill development, mentoring and training.

The legislative framework provides guidance and structure for virtually every circumstance that could arise in employment relationships. Collectively the Labour Acts provide direction to encourage and support fair and equitable interactions, considerations and outcomes. We are truly fortunate as entrepreneurs and employers to have a well thought through and practical legal framework governing the employer/employee relationship, which a visionary and principled entrepreneur will not find daunting to work within.

With employment practices compliant with statutory requirements and an ‘on-side’ work team, the entrepreneur is freed from the distraction of ‘background noise’ to focus on what he or she does best, growing the business!

Investing in human capital

Your business has grown and with it the number of people you employ. This is your investment in human capital. As with all investments, this particular asset must be properly managed or, as it is people we are talking about, provided with leadership.

Inevitably, increasing the numbers of people brings with it, increasing complexity! Most entrepreneurs find it difficult to cope with people induced complexity as it distracts their attention to running the business like no other! The DRG Outsourcing experience with enterprises that have grown their employee numbers is that they have not been managing this growth with forethought and in a structured fashion. The numbers have ‘just happened’ to support the growth of the business, with very little regard for best-practice people management processes.

South African employment-related law also introduces unavoidable complexity in terms of compliance. With greater numbers of people, enterprises cannot continue to operate ‘under the radar’. Entrepreneurs are often overwhelmed by people induced complexity – finding it a far greater challenge than any brought by day-to-day business activities.

There can be no substitute for leadership! The ‘absentee owner’ will soon suffer a decline in business performance. Simple steps to establishing Highly Engaged People taking Self-Inspired Action … for Results in your workforce include:

■ Helping your people to understand something about how your business works;
■ Helping them to understand where their job fits into the business and how it adds value – the purpose of my work;
■ Encouraging your people to hold themselves accountable and take responsibility, as adults;
■ Letting people know how the business is doing, reinforce their role in achieving business success; and
■ Recognising and rewarding performance using a properly designed approach (encouraging entrepreneurial behaviour).

Entrepreneurs, as business leaders, expect their team members to deliver their work outcomes with the same passion as they themselves have for their business. They expect them to treat customers as their own, hold themselves accountable for quality, to take ownership of managing cost and to understand the importance of positive cash flow. Unlike many conventional businesses, such awareness lies beyond the job description or the key performance area.

Entrepreneurial leaders will seek to infuse their passion for business into their team members’ own sense of values by creating a working environment enabling them to behave as entrepreneurs in their own right.

David White is the Chief Executive Officer at Business Fit.

Does skills development translate into work readiness?

PIVOTAL grant funding and the trend of most companies building graduate programme into their recruitment processes has increased awareness, but perhaps not understanding of or buy-in to, work readiness.
The critical skills lacking in today’s graduates costs South African business dearly, and leads to frustration experienced both by the business and by the new employee. The new employee often finds it difficult to fit into the work environment and thus is unable to perform optimally in their new role. The employers tend to expect graduates to be ready to hit the road running with their new jobs, while graduates expect employers to show them the ropes – which lead to an expectations gap that can clearly create work stress, disengagement, poor performance and tension.

It is unfortunate that many graduates have difficulty in finding employment after completing their studies. Although graduates typically have academic and technical skills, they often lack some basic skills, also referred to as employability, or work readiness skills (Raftopoulos, 2009).

Not only does South Africa have a staggering 34.9% (Stats SA) unemployment rate of 15 to 34 year olds, but it is found that potential new entrants to the labour market rarely have the necessary generic (and technical) skills to enter the labour market, let alone progress within it. There is growing demand for graduates to possess a diverse range of generic attributes and skills for work (Hager & Holland, 2006). A qualitative study by ACNielsen (2000) indicated that Australian employers value a range of personal attributes including enthusiasm, motivation, ambition, and personal presentation, which lie outside strict academic performance.

The SA Board of People Practices (SABPP): Learning and Development Committee (2015) investigated the concept of workplace readiness in order to develop a professional practice standard (PPS). It became evident that work readiness (and performance of new graduate entrants) is understood differently in different environments, but in general refers to generic skills and attributes articulated by employers as indicative of work readiness.

Furthermore, different terms are used to refer to the same or similar attributes within these organisations. For instance, ‘generic skills’ is used interchangeably with ‘core skills’, ‘basic skills’, ‘transferable skills’, and ‘employability skills’. Similarly, different labels are used to describe the notion of work readiness including ‘work preparedness’, ‘graduate employability’, ‘transferable skills’, ‘internships’, and ‘generic attributes’.

Notwithstanding the confusion and semantics, focus must be placed on work readiness as a core element in the underemployment of graduates. The characteristics of a work ready individual can and will increase their employment opportunities and the employer’s ability to grow their organisations with skilled, engaged people. In a country so focussed on higher education, we need to now also focus on the work readiness of these graduates!

Some research has been conducted to aid in profiling a work ready individual. In the Caballero, et al (2011) study, the following attributes were identified as the ten broad categories indicative of work readiness; motivation, maturity, personal growth/development, organisational awareness, technical focus, interpersonal orientation, attitudes to work, problem-solving, adaptability, and resilience. Factors of importance are; personal characteristics, organisational acumen, work competence, and social intelligence (Caballero, Walker, & Fuller-Tyszkiewicz, 2011).

To summarise, a ‘work ready’ individual possesses an understanding of how organisations, the economy and the labour market function (the knowledge module); the foundational skills needed in order to be able to engage in work processes (employment readiness); and specific skills to perform allocated responsibilities (job readiness). In other words, the ability of this new employee to hit the ground running.

However, simply finding the work ready individual, and placing them in work readiness programmes in not enough. Line management needs to take real ownership of the process in order for any work readiness programmes to make a meaningful difference. Learning and Development is part and parcel of an overall strategy of performance improvement and thus as an overall facilitator of the specific aspects of a work readiness process, e.g. induction, orientation and on-boarding.

Gizelle McIntyre is the Director of The Institute of People Development (IPD).

Poll reveals South Africans’ workplace likes, loathes and wants

A recent survey of 12 000 office workers nationwide has revealed the most important things we demand from our workplaces. 
The survey also uncovered the things we like best and hate most about the place where we spend a third of our lives.

We asked people what was the most important thing for them in the workplace and 95% said access to good tea and coffee.

This topped the list ahead of security (91%) and a healthy environment (87%) of what South African see as most important in the workplace.

Rounding out the most important things was natural light (85%), greenery (71%),  canteens (65%) and comfortable chairs (52%).

Essentially it’s all the smaller things that people really need to be happy in the workplace.

The poll also quizzed people on their biggest annoyances at the workplace.

Top of the list was loud colleagues, followed by colleagues who “smelled up the place” by eating lunch at the desk.

Third was ‘unbearable bosses.’

It seems as many offices move to open plan design, the trend of squeezing more people into less space has brought workers in closer proximity to each other. There is nowhere to hide from other peoples’ habits.

People talking loudly on the phone, endlessly talking to colleagues and making a general ruckus (88%) topped the list of the biggest peeve.

This was followed closely by people who eat lunch at their desks thereby smelling up the workspace (76%).

Bad bosses (66%) was in third place particularly those that were hyper-critical and micro managers. Lack of privacy also featured with just over 50% citing that as an office downside.

Other strong office dislikes were dreary office spaces, long meetings, dress codes and working hours.

When asked about the best things about the workplace, the social aspect of meeting new people and becoming friends with certain colleagues was the best thing about the workplaces according to 80% of respondents.

Also favourable was  the ‘learning and personal development’ that the workplaces offered (61%) and this was followed by ‘a place to make money’ at 49%.

Filling out the remaining office positives was ‘stimulation’, ‘sense of worth’ and ‘contribution to society.’

More businesses in South Africa were moving to address concerns such as those highlighted by the survey.

Quiet spaces, places to make private calls and a trend towards more comfortable and relaxed spaces will improve the day to day office experience.

Richard Andrews is the Managing Director of Inspiration Office.

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