IP 314 A3

The 3 key actors in Labour Relations

Employees and trade unions

Employers and employer organisations

The State

Unitarist Approach core idea

organisation seen as unified and harmonious

everyone shares values and goals

Key Features of the Unitarist Approach

no room for opposition

management has full legitimate control and decisions are not questioned

conflict seen as irrational or a “friction” caused by poor communication and personality clashes

trade unions viewed as unnecessary/disruptive and outsiders competing with managers for loyalty of employees

Pluralist Approach

management and workers “compete for power”

conflict seen as natural in employee-employer relationships

trade unions and employer organisations seen as legitimate tools to express employee interests

collective bargaining is democratic and centralised

based on gradual change (reformism) and not revolution

Conflict (Marxist) Approach

workplace seen as a site of inequality and power imbalance

based on criticism of capitalism

exploitation seen as a key feature where employers exploit workers by paying them less than the value they produce

focus on transforming the system, not just improving

ignores shared interest

Scientific management

critical or ordinary management

develop a “science” for each task

training of workers

division of labour

cooperation between managers and workers

Free Market Economy

labour treated as a commodity

government intervention and trade controlling criticised

“invisible hand” promotes the greater good for society and labour

State Corporatism

all power to the state

conflict seen as undesirable as it is harmful to state and employers

trade union leaders silenced

trade unions are weak/fragmented and cannot challenge the state

government is the biggest employer and has major control over jobs

leads to unemployment due to poor regulation and control

Legal tests for employee status

Control test

Organisation test

Dominant impression test

Realty test

Control test

employer controls what and how work is done

Organisation test

work is an integral part of the employer’s business

Dominant impression test

considers all factors to get the overall impression

Reality test

Does the employer have the right to supervise and control the employee?

Does the employee form an integral part of the employer’s organisation?

Is the person economically dependent on the employer?

A Trade Union can only be registered/operate if:

It is truly an association of employees

Its main purpose if to manage relations between members and employers

Approach to determine whether a Trade Union is genuine

Registrar examines the actual functioning of the organisation

How the union was formed

Its membership and structure

Its activities in practice

All relevant factors must be considered together

Why workers join Trade Unions

protection

economic welfare

job security

socialisation and self-fulfilment

political reasons

protection for specific trade

Protection of workers when joining trade unions

stand together against exploitation

Economic and welfare reasons for joining trade unions

better wages

cope with cost of living

Job security as a reason for joining trade unions

protect against dismissals, retrenchments, and unilateral changes

Socialisation and self-fulfilment as a reason for joining tr

self-development and belonging

Political reasons for joining trade unions

influence political change

continue emancipation work

Protection of specific trade as a reason for joining trade unions

safeguard skills from intrusion or erosion

The Power of Trade Unions

The nature of the trade union

Broad economic conditions

Union solidarity

Legal power

Registration

Historical success

Strategies used by Trade Unions

Collective bargaining

Government engagement

Strike Action

Affiliation

Legal action

Role of the State in labour relations

Institutionalisation of Social Dialogue

Department of employment and labour

Labour legislation

Economic policy instruments

Institutionalisation of social dialogue

state regulates relations and sustains dialogue between government, labour, business, and community through structures and systems (NEDLAC), dispute resolution structures and labour legislation transformation

Department of Employment and Labour as a role of the state in Labour Relations

creates a labour market that supports investment, economic growth, job creation, and decent work

aims to reduce unemployment, poverty, and inequality

uses policies and programmes

Labour Legislation as a role of the state in Labour Relations

continuously updated

must align with constitution and ILO standards

forms the labour law framework

Economic Policy Instruments as a role of the state in Labour Relations

state develops and implements economic policies

aims to stimulate growth and manage socio-economic challenges

includes policies and budget and financial tools

Salient Features and Nature of Labour Relations

Dynamic

Contextual

Power and power testing

Cooperation

Conflict

Trust vs Mistrust

Orderly and constructive vs disorderly and destructive

Subconscious/hidden drivers

Mutual interest and shared goals

Social Dialogue

negotiation, consultation, and exchange of information between government, employers, and workers, on issues relating to economic and social policy

Historical developments of Labour Relations in South Africa

Colonialism

Apartheid

Democratisation, transition, consolidation

Components of the macro-environment (CAS)

economy

socio-political environment

legal framework

social environment

Outcomes (CAS)

Social pacts

Substantive agreements

Recognition and procedural agreements

Broad objectives of Labour Relations

Rights and obligations of employees, unions, employers, and employer organisations

Promotion of collective bargaining and worker participation

Dispute resolution and labour peace

Market drivers (economic factors)

labour economics

economy and government policy

inflation and cost of living

unemployment

poverty and inequality

Non-market drivers (social and political factors)

government labour legislation

education and skills development

trade unions and collective bargaining

the social wage

migration and demographics

health and other social fundamentals

corruption and crime

Social conditions affecting labour relations

racial and gender imbalances

education and training

poverty and living standards

healthcare

Labour Relations Analysis Frameworks

Labour Relations as a Complex Adaptive System of Four Broad Elements

The Perspectives to Labour Relations and their Dynamic Transitions over time

The Salient Features and Nature of Labour Relations

Healthcare as a social condition affecting Labour Relations

poor public healthcare

under-resourced hospitals

expensive private healthcare

HIV/AIDS has major healthcare implications

Labour Relations as a Complex Adaptive System of Four Broad Elements

macro-environment/environmental factors

the parties

conflict resolution

outcomes

Macro-environment (economic factors) (CAS)

economic environment

political factors

legal factors

social factors

Conflict resolution (CAS)

Structures (NEDLAC) and Processes (conciliation/mediation)

Forms of social dialogue

tripartite

bipartite

informal

institutionalised

regional

national

enterprise level

Cause of the Durban Strikes

low wages and rising inflation that led to worker dissatisfaction

Durban Strikes

started in one company and spread rapidly

industry nearly shut down

no unions involved and employees had no one to negotiate with

Key Impact of Durban Strikes

showed power of black workers

exposed weak labour laws lack of structures

Outcome of the Durban Strikes

led to the Wiehahn Commission that reformed the labour system

Cause of the Rand Rebellion

falling gold price made employers cut costs

they planned to replace white workers with cheaper black workers

Rand Rebellion

20 000 white workers struck

escalated into violent rebellion and government used military

Outcome of Rand Rebellion

200 people killed, many injured

Smuts lost power

led to the Colour Bar and black worker exclusion from labour rights

Cause of the Marikana Strike

mineworkers demanded higher wages and were dissatisfied with NUM

Marikana Strike

3 000 workers took part in an “illegal strike”

rivalry between NUM and AMCU

violence before the strike

police opened fire on strike

Key Impact of Marikana Strike

biggest post-apartheid police brutality compared to Sharpeville

led to Farlam Commission and need for police reform

Long-term effects of Marikana Strike

union fragmentation and rise of AMCU

NUM lost around 44 000 members

exposed problems in collective bargaining and the migrant labour system

damaged government legitimacy

economic loss

Economic instruments

monetary policy and fiscal policy

Monetary policy

controls money - inflation and interest rates

Fiscal policy

government spending and taxation

Triple scourge

poverty, unemployment, and inequality

The Triple Scourge’s impact on Labour Relations

affects wages, working conditions, and conflict

creates pressure on employers, employees, and the state

Triple Scourge related indicators

education and skills

migration and demographics

health, food, water, energy

housing and mobility

crime and violence

Unemployment

people 15-64 without a job, actively seeking work, but cannot find it. includes those working in unsuitable jobs

Not economically active

not working and not looking for work

Unemployment includes:

official unemployment - searching

discouraged workers - not searching but want work

Discouraged work-seeker

wants work and is available but stopped searching because there are no jobs, there is a skills mismatch, or they’ve lost hope

Informal employment

small, unregistered precarious jobs

no tax and legal or legal protection

Types of informal employment

small firms

self-employment/unregistered workers

Positives of informal employment

reduces unemployment

reduces poverty and inequality

Negatives of informal employment

unregulated and can lead to exploitation

used as cheap labour

may include illegal activities

Common forms of misconduct

racist behaviour

drinking and drugs

dishonestly, failing on the duty to act in good faith

assault, fighting, or harassment

timekeeping and attendance

negligence

insubordination

unprotected strike

refusal to work

Employer responses to go-slows

difficult to discipline employees

may withhold pay

may use exclsuion

Exclusion

employer rejects no work

Nature of disputes of interest

involve demands and negotiations of: future benefits, new working conditions

Substantive limitations on right to strike

collective agreement

essential/maintenance services

if already assigned to arbitration/Labour Court

3 Main stages of dispute resolution

declaration of the dispute

conciliation

resolution/determination

Core idea of industrial action

power imbalance in employment:

employees have weak bargaining power while employers have strong economic power

General principles for discipline for misconduct according to the COGP

employers rules must promote certainty and consistency

standards of conduct must be made clear and available in an easily understood format

progressive discipline

dismissal as a penalty must be applied consistently, taking past practice into account

Disciplinary measures short of dismissal

warning

suspension

demotion

transfer

resignation instead of dismissal

Operational requirements

economic, technological, structural, or similar operational needs usually linked to retrenchments or redundancies

Procedure for protected strikes and lockouts

Referral of dispute

30-day period

notice requirements

state employment exception

Procedural fairness

investigate whether grounds for dismissal exists

employee must receive reasonable time and be allowed to state their case

may be assisted by a trade union rep or fellow employee

must receive reasons for dismissal and be informed about right to refer dispute

Employer may dispense with pre-dismissal procedures when:

in exceptional circumstances

Automatically unfair dismissals

participated in, supported, or intended to participate/support strike action that complies with chapter 4 of the LRA

related to a transfer, or a reason connected to a transfer

Key factors in deciding substantive fairness

existence of a workplace rule/standard

employee knew/should have known the rule/standard

severity of misconduct in misconduct cases

consistency with other employees

industry practice

COGP for fair reasons for dismissal

conduct, capacity, operational requirements

Dismissal occurs when:

employer terminated employment with or without notice

employee resigns because employer made continued employment intolerable for employee

Types of strike action

go-slows

work-to-rule

work-ins/sit-ins

Decision-making logic for dismissal for operational requirements

Could i?

Should i?

Will it come as a surprise?

Will i get away with it?

Could i?

legally allowed

Should i?

strategically sensible

Will i get away with it?

operationally safe

Will it come as a surpise?

procedurally fair

Types of incapacity

poor performance

incapacity due to ill health/injury

Requirements for the protection of secondary strikes

primary strike protected

7 days/ written notice

proportionality test

Progressive discipline

formal disciplinary action is not necessary every time a rule is broken

discipline should progressively become more serious

dismissal should usually be last resort

Key Features of secondary strikes

secondary employer not part of the main dispute

cannot directly resolve the issue

Internal dispute resolution

disciplinary procedures

grievance procedures

internal mediation

Purpose of secondary strikes

increase pressure on primary employer

strengthen bargaining power of workers

Strikes occur when:

employees collectively refuse to work as a form of pressure during a dispute

Negligence

failure to meet reasonable standard of care