The Labour Relations Act 1995 - No Insecurities

The Labour Relations Act of 1995 As amended provides for the peaceful resoultion of disputes, organised protests strikes and lockouts and is a means of ensuring that neither employee or employee are at the whims and fancies of each other. The Purpose of the Act
The purpose of the Act is to advance

economic development,

social justice,

labour peace and

the democratisation of the workplace
by fulfilling the primary objects of this Act, which are-

to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution(Section 27, which is in the Chapter on Fundamental Rights in the Constitution entrenches the following rights: (1) Every person shall have the right to fair labour practices. (2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers' organisations. (3) Workers and employers shall have the right to organise and bargain collectively. (4) Workers shall have the right to strike for the purpose of collective bargaining. (5) Employers' recourse to the lockout for the purpose of collective bargaining shall not be impaired, subject to subsection 33(l).

to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;

to provide a framework within which employees and their trade unions, employers and employers' organisations can-

collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and

formulate industrial policy; and 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.

A large majority of the Act, inkeeping with its spirit and purport, deals with bargaining councils,strikes and lockouts and workplace forums. The Act has ver clear provisions as to how bargaining councils, strikes and lockouts and other bodies and actions are to be conducted.
When is a strike illegal

when the person is bound by a collective agreement, arbitration award or determination made by the minister in terms of section 44;

the matter is one which any part has a right to refer for arbitration;

the person works in essential services or maintainence servicesspan class="Apple-style-span" style="font-size: xx-small;">(What is maintenance or essential services is determined by the essential services committee, but maintenance services have been defined as any service,the disruption of which will result to damage to the workplace,plant or machinery);

the matter may be refered for arbitration or to the courts by any parties;

The exception is that where certain trade union organisational rights are in dispute the strike or lockout may commence despite the fact that the matter is one which could have been referred for arbitrattion or to the courts. Protest Action to Promote or defend socio-economic interests of workersYou may take part in protest action if:

You do not work in essential or maintenance services;

the action has been called by a trade union;

the registered trade union hs given NEDLAC (National Economic Development And Labour Council)

NEDLAC has considered the action.

14 days notice prior to the commencement of the action must be given to NEDLAC (notice of intention to proceed) UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE Section 186 provides that Every employee has the right not to be unfairly dismissed; and subjected to unfair labour practice. Meaning of dismissal and unfair labour practice "Dismissal" means that-

an employer has terminated a contract of employment with or without notice; • •an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; •an employer refused to allow an employee to resume work after she- •took maternity leave in terms of any law, collective agreement or her contract of employment; or

was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;

an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or

an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –

unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and

an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act. Automatically unfair dismissals A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is- that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;50 that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health; to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee; that the employee took action, or indicated an intention to take action, against the employer by-

exercising any right conferred by this Act; or

participating in any proceedings in terms of this Act;

the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy;

that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;

transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act. Despite subsection (1)(f)-

a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;

a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. *Section 5 confers protections relating to the right to freedom of association and on members of workplace forums. *Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) and (5) provide- (4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike. (5) Subsection (4) does not preclude an employer from fairly dismissing an employee in compliance with the provisions of Chapter VIII for a reason related to the employee's conduct during the strike, or for a reason based on the employer's operational requirements." *Section 77(3) provides- "A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67."