dip ® baw Sogeny LEAD) LEGAL EDUCATION & DEVELOPMENT Labour Dispute Resolution Training Guide 2 Practical Vocational Training Guide Peer Cauca Peet eae ery jates committed to: eek un ey)> cp CEAD) Law SOCIETY esau a peveLcmnrar EDUCATION OF SOUTH AFRICA LABOUR DISPUTE RESOLUTION (LDR) TRAINING GUIDE 2 | 2021 Version 001 Learning Resources No 023 Publish date: 01/01/2021 © Law Society of South Africa Copyright subsists in this work in terms of the Copyright Act of 1978, as amended. Subject to the Copyright Act, no part of this work may be reproduced in any form or by any means without the Law Society of South Africa's permission. Any unauthorised reproduction of this work will constitute a copyright infringement and render the doer liable under both civil and criminal law. Whilst every effort has been made to ensure that the information published in this work is accurate, the editors, drafters, publishers and printers take no responsibility for any loss or damage suffered by any person asa result of the reliance upon the information contained therein ‘Therefore, furthermore the following: Within this training guide reference is made to various court cases, textbooks, articles (for example De Rebus) as well as other sources and the obligation remains on the delegate to stay abreast of changes within the law through their own research in order to ascertain real time standing authorities. South Africa is most definitely one of the countries since its incorporation as a full democracy, for years to come to go through various legislative changes occurring at a tremendous rate as the country embraces its newly found democracy. For more information LSSA L.E.A.D Quality Assurance (QA) Section. Tel: (012) 441-4600 | Fax: 086 550 7098 | e-mail: tasha@LSSALEAD.ora.za These LDR guidelines were prepared by Mr AC Osman on 22/10/2020 to support the LSSA LEAD Labour Dispute Resolution Guide. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) © ISSATABLE OF CONTENTS 1. 2. 3. 4 8.1 o1 10. 10.1 10.2 INDUSTRIAL RELATIONS FRAMEWORK.. HISTORY AND BACKGROUND TO LABOUR LAW IN SOUTH AFRICA THE COMMON LAW AND THE IDENTIFICATION OF THE EMPLOYEE EXTENDED DEFINITION OF EMPLOYEES... TEMPORARY EMPLOYMENT ... PART TIME EMPLOYMENT... DUTIES AND RESPONSIBILITIES OF BOTH THE EMPLOYER AND THE EMPLOYEE .. DISCIPLINARY PROCEEDINGS AND HEARINGS FORMATIVE ASSESSMENTS: NOTICE TO ATTEND A DISCIPLINARY HEARING . ow hw Nee DISMISSALS (MISCONDUCT - INCAPACITY ~ OPERATIONAL REQUIREMENTS) ... FORMATIVE ASSESSMENTS: DISMISSALS.. COLLECTIVE BARGAINING..... WHAT IS COLLECTIVE BARGAINING? HOW DOES THE LRA PROVIDE FOR AN INSTITUTIONAL FORM OF COLLECTIVE BARGAINING? ... 10.3 HOW DOES THE LRA PROVIDE FOR COLLECTIVE BARGAINING BY AGREEMENT?... 9 10.4 10,5 IS THERE A CONSTITUTIONAL OR STATUTORY DUTY TO BARGAIN? .. 10.6 10.7 WHAT IS A STRIKE? «...ssssseeee HOW IS COLLECTIVE BARGAINING ESTABLISHED BY MEANS OF PRACTICE?.. DISTINGUISH BETWEEN DISPUTES OF MUTUAL INTEREST AND DISPUTES OF RIGHT .. 10.8 WHAT IS THE DIFFERENCE BETWEEN A PROTECTED STRIKE AND AN 10.9 10,4 10.1: 10.1; 10.1 UNPROTECTED STRIKE? .. WHAT ARE THE CONSEQUENCES OF AN UNPROTECTED STRIKE?... 0 WHAT IS THE PROCEDURE TO FOLLOW FOR A STRIKE TO BE PROTECTED? 1. WHEN CAN EMPLOYEES NOT EMBARK ON A STRIKE? ... 2. WHAT CONSTITUTES A SECONDARY STRIKE? .. 3. WHAT CONSTITUTES PROTEST ACTION? ... ek) LaBou! R DISPUTE RESOLUTION (TRAINING GUIDE 2) © SSA10.14 10.15 10.16 10.17 10.18 10.19 10.20 10.21 10.22 10.23 10.24 10.25 10.26 10.27 10.28 11. DISPUTE RESOLUTION 12. LEGISLATION. 12.1 12.2 12.3 12.4 WHAT CONSTITUTES A LOCK-OUT?. DOES A TRADE UNION HAVE TO BALLOT ITS’ WORKERS? DOES THE ABSENCE OF A BALLOT INVALIDATE A PROTECTED STRIKE OR LOCK- ouT?, 15 ADVANTAGING, OR PROMISING TO ADVANTAGE AN EMPLOYEE OR APPLICANT FOR, EMPLOYMENT IN EXCHANGE FOR THAT PERSON NOT EXERCISING ANY RIGHT CONFERRED BY LRA... 16 AN EMPLOYER MAY NOT PROHIBIT ITS MANAGERIAL EMPLOYEES FROM SERVING AS SHOP STEWARDS. 16 IT IS NOT A REQUIREMENT THAT A UNION OR EMPLOYER'S ORGANISATION BE REGISTERED IN ORDER TO BE RECOGNISED AND PROTECTED BY THE LRA........16 A STRIKE NOTICE MUST ALSO IDENTIFY THE ISSUE IN DISPUTE THAT GAVE RISE TO THE STRIKE... 16 MERE PARTICIPATION IN AN UNPROTECTED STRIKE DOES NOT AUTOMATICALLY WARRANT DISMISSAL .. 17 THE STRIKE NOTICE MUST PROVIDE THE EMPLOYER WITH PRECISE DETAILS OF 17 WHEN THE STRIKE WILL COMMENCE ... WHERE PARTIES HAVE CONCLUDED A COLLECTIVE AGREEMENT SETTING OUT PRE-STRIKE PROCEDURES, WILL THE STRIKE STILL BE PROTECTED IF THESE PROCEDURES ARE NOT COMPLIED WITH .. DISCLOSURE OF INFORMATON FOR PURPOSES OF COLLECTIVE. LIMITATIONS ON DISCLOSURE OF INFORMATION.. SECONDARY STRIKES .. BREACH OF PICKETING RULES .. LIMITATION TO THE RIGHT TO ENGAGE IN COLLECTIVE BARGAINING .. LRA... FORMATIVE ASSESSMENTS ~ CEA NOTICE PERIODS. CALCULATIONS IN TERMS OF bcea. EMPLOYMENT EQUITY ACT. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) © LSSAINDUSTRIAL RELATIONS FRAMEWORK Discuss the right to fair labour practice in the context of s 23(1) of the Constitution. In NEHAWU v University of Cape Town & Others [2003] ILJ 95 (CC) the Constitutional court at par 40 stated: “The focus of s 23(1) is broadly speaking the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both. In giving content to that right it is important to bear in mind the tension between the interests of the worker and the interests of the employers which Is inherent in labour relations. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices. It is in this context that the LRA must be construed.” In Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405; [2007] 12 BLLR 1097 (CC) it was held that;: “one of the primary objects of the LRA is to give effect to and regulate the fundamental rights conferred by s 23 of the constitution, including the right to fair labour practices enshrined in $23 (1).” The concept of unfair labour practice must be given content by the legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals, including the Labour Appeal Court and the Labour Court. In National Union of Metalworkers of South Africa v Vetzak Co-Operative Ltd & Others [1996] (4) SA 577 (A); [1996] 17 ILJ 455 (A) in determining fairness, the court held that the approach must be to find a balance between fairness to both the employee and the employer. In judging fairness, a court applies @ moral or value judgment to establishing facts and circumstances and in s0 doing, must have due regard to the objectives sought to be achieved by the LRA. HISTORY AND BACKGROUND TO LABOUR LAW IN SOUTH AFRICA Candidate Legal Practitioners should debate whether our labour law dispensation prior to 1995 was better or worse than our current dispensation. In doing so ~ specific reference can be made to sectors such as mining, retail, manufacturing, farming and the domestic worker sector. In the engagement and discussion, candidates must be able to determine whether any of the abovementioned sectors have transformed for the better as a result of legislative amendments and policy changes. ‘The above discussion can also be linked to the growing unemployment rate in the country and whether there is any correlation between our labour laws and the unemployment rate, LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©USsA i3. THE COMMON LAW AND THE IDENTIFICATION OF THE EMPLOYEE This section is covered in sufficient detail in the LDR Practice Guide. (a) (b) ‘Of paramount importance here is the definition of an employee in s 213 of the LRA: any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration, and; any other person who in any manner assists in carrying on or conducting the business of an employer. (1) (a) (b) (c) (a) (e) a @ (2) (3) a ‘SEC 200A OF THE LRA (PRESUMPTION AS TO WHO IS THE EMPLOYEE): until the contrary is proved, for the purposes of this Act, any employment law and s 98A of the Insolvency Act, 1936 (Act 24 of 1936), a person who works for, or renders services to, any other person is presumed, regardiess of the form of contract, to be an employee, if any one or more of the following factors are present: the manner in which the person works is subject to the contro! or direction of another person; the person’s hours of work are subject to the contro! or direction of another person; in the case of a person who works for an organisation, the person forms part of that organisation; the person has worked for that other person for an average of at least 40 hours per month over the last three months; the person Is economically dependent on the other person for whom he or she works or renders services; the person is provided with the tools of trade or work equipment by the other person; or the person only works for or renders services to one person. [sub-s. (1) amended by s. 39 of Act 6 of 2014 (with effect from 1 January 2015).] Subs (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of s 6 (3) of the Basic Conditions of Employment Act. If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determine by the Minister in terms of S 6 (3) of the Basic Conditions of Employment Act, any of the contracting parties may approach the Commission for an advisory award on whether the persons involved in the arrangement are employees. NEDLAC must prepare and issue a Code of good Practice that sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in subs (2) are employees. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©lssA 2It is important for candidates to understand that the presumption provided for in 5200 A isa rebuttable presumption and the ultimate test that is used to determine ‘employment is the dominant impression test. Candidates must also understand that the presumption only applies to those earning below the earnings threshold provided for in s 6 (3) of the Basic Conditions of Employment Act; currently R205 433.30 per annum. THE CODE OF GOOD PRACTICE: WHO IS AN EMPLOYEE PUBLISHED UNDER GEN N 1774 IN GG 29445 OF 1 DECEMBER 2006. Candidate Legal Practitioners should be required to read the entire code and apply the code to a fictitious set of facts. 4. EXTENDED DEFINITION OF EMPLOYEES Undocumented Foreian N: In Discovery Health Limited v CCMA & Others (JR2877/06) [2008] ZALC 24, [2008] 7 BLLR 633 LC; [2008] 29 JLJ 1480 (LC), the Labour Court held that a contract of employment concluded with a foreigner who was not in possession of a work permit, although unlawful, was not void ab initio. Such an employee falls within the definition of an employee as contained in the LRA. Candidates can be engaged in a discussion on Xenophobia and whether foreigners should be afforded the same employment opportunities as citizens in South Africa. Sex Workers In Kylie v CCMA [2010] 7 BLLR 705 the Labour Appeal Court held that while a sex worker may not be entitled to the full range of remedies available in terms of the LRA, e.g., re- instatement, that does not mean that an unfairly dismissed sex worker might not be entitled to compensation in appropriate circumstances, and as a result, the CCMA has jurisdiction to hear an unfair dismissal claim by a sex worker. Practical Formative Assessment Indicate whether the following persons are employees for purposes of the Labour Relations Act. Support your answer by referring to relevant case law and sections of the LRA: (a) Undocumented foreign nationals (b) Documented foreign nationals (©) Sex workers (d) Magistrates (e) Part time interpreters (f) Pastors / Priests / Rabbi's / Moulana’s / Clerics LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©LSSA 3TEMPORARY EMPLOYMENT Section 198 A - Temporary Employment Services (Labour Brokers) Candidates should engage in a discussion around the pros and cons relating to triangular employment via a labour broker and its effects on standard / indefinite employment in particular security of employment and benefits attached to permanent employment. Candidate legal practitioners should clearly understand the legal implications of the landmark Constitutional Court judgement in the matter of Assign Services Pty Ltd v NUMSA dealing with the interpretation of the deeming provision provided for in s 198A (3)(b) of the LRA. Fixed Term Employees ~ Section 198 B of the LRA Candidates should equally understand the purpose of Secl98 B which seeks to root out the abuse of fixed term contracts in the past and the justifiable grounds under which an employer may fix a contract for longer than 3 months where the employee earns below the earnings threshold. The conclusion of a fixed-term contract will be justified if the employee: (a) _ is replacing another employee who is temporarily absent from work; (b) _ is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; (c) is a student or recent graduate who Is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; (d) is employed to work exclusively on a specific project that has a limited or defined duration; (e) is a non-citizen who has been granted a work permit for a defined period; (f) is employed to perform seasonal work; (g) is employed for the purpose of an official public works scheme or similar public job creation scheme; (h) 1s employed in a position which is funded by an external source for a limited period; or (i) has reached the normal or agreed retirement age applicable in the employer's business. (5) Employment in terms of a fixed-term contract concluded or renewed in contravention of subs (3) is deemed to be of indefinite duration. (6) An offer to employ an employee on a fixed-term contract or to renew or extend a fixed term contract, must ~ (a) bein writing; and (b) _ state the reasons contemplated in subs (3)(a) or (b). In Smit & Another v Office of the Chief Justice & Others (2018) 39 ILJ 1357 (LC) the Applicant employees, who had failed to secure employment contracts following an interview process for advertised positions, sought an order LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUssSA 46. declaring them to be fixed- term employees, relying on the “protection” of s 186(1)(b) of the LRA. The court found that s 186 does not confer any rights or protections on employees, it merely defines ‘dismissal’. The application of s 186(1)(b)(ii) means no more than that an employee whose contract has not been renewed may assert the existence of a dismissal where he or she reasonably harbours an expectation of indefinite employment. Whether or not the dismissal so established is fair is a separate enquiry. In this matter the papers did not disclose a reason for dismissal that brought the dispute within the ambit of the Court's jurisdiction, nor was there any evidence that the dispute had been referred for conciliation, and this in itself was fatal to any unfair dismissal claim. In Conn & College Street Primary School (2018) 39 ILJ 933 (CCMA) the ‘employee was employed on successive fixed-term contracts before being dismissed. The employer conceded that, but for its operational requirements, the employee's contract would have been renewed. The commissioner found that the employee had proved a reasonable expectation of renewal of her contract, and that the termination constituted an unfair dismissal. The commissioner also found that the employee's employment was deemed to be of indefinite duration in terms of s 198A(3) of the LRA 1995. In National Union of Mineworkers of SA obo Gugwana and RCG Engineering CC t/a Secant Engineering (2018) 39 IL] 953 (CCMA), where the Commissioner examined the employee's fixed term contract, and found that the contract had no termination date and made no reference to any particular project, his employment was deemed in terms of s 198(A)(3) to be of indefinite duration. In Zungu v Premier, Province of KwaZulu-Natal and another (2017) 38 ILI 1644 (LAC), the employee claimed that she had a legitimate expectation of renewal of her fixed term contract premised on the recommendation of a selection panel which the premier of the province was obliged to follow, and that his refusal to follow the recommendation was unlawful. In the Labour Appeal Court's view, this dispute fell squarely within the realm of s (186)(1)(b) of the LRA 1995 - characterising the dispute as having other characteristics too did not dispel the validity of the finding that it fell within the purview of s 186(1)(b). The legislation contemplated that a claim that a fixed term contract be renewed on the grounds of a legitimate expectation was a species of ‘dismissal’, as defined in s 186, and was regulated by s 191 to be within the exclusive jurisdiction of the CCMA. This decision was upheld by the Constitutional Court (Zungu v Premier of the Province of KwaZulu-Natal and others (CCT 136/17) [2018]. ZACC 1; (2018) 39 ILI 523 (CC); [2018] 4 BLLR 323 (CC); 2018 (6) BCLR 686 (CC) (handed down on 22 January 2018). PART TIME EMPLOYMENT LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUssA 5Candidate Legal Practitioners should understand the purpose of s 198(C) in so far as It distinguishes between Full Time Employees and Part Time Employees: (a) Apart time employee is an employee who is remunerated wholly or partly by reference to the time that the employee works and who works less hours than a comparable full-time employee; and (b) A full-time employee is an employee who is identifiable as a full-time employee in terms of the custom and practice of the employer of that employee. DUTIES AND RESPONSIBILITIES OF BOTH THE EMPLOYER AND THE EMPLOYEE Formative Assessment - Candidates must be required to draft a permanent contract of employment and fixed term contract of employment with a given set of facts. Discuss workplace policies , disciplinary codes and grievance policies. DISCIPLINARY PROCEEDINGS AND HEARINGS Candidate Legal Practitioners should be required to draft a Notice to Attend a Disciplinary Hearing and also a checklist for the chairman of a disciplinary hearing to follow. 8.1 | FORMATIVE ASSESSMENTS: NOTICE TO ATTEND A DISCIPLINARY HEARING Case Study 1 Your client, XYZ Company, instructs you to draft a notice of a disciplinary enquiry. The employee, Dan Smit, is to be charged with unauthorised possession of company property, something that in terms of your client’s code of conduct could lead to summary dismissal. On 3 May 2020 the employee had, without permission, in his possession one box of chocolates containing 36 units of 250g each (valued R180.00 in total) in his possession when he proceeded through the security area on his way to his motor vehicle in the parking area. You advise your client on the substantive and procedural requirements in terms of the Labour Relations Act, the audi alteram partem rule and the onus of proof. You have to decide on a date, time and place for the hearing. The hearing will be chaired by Dan Moloto, the Human Resources Manager. DRAFT THE NOTICE OF A DISCIPLINARY ENQUIRY TO THE EMPLOYEE LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUSSA 69. DISMISSALS (MISCONDUCT - INCAPACITY - OPERATIONAL REQUIREMENTS) The LDR Practice Guide deals with the above topics in sufficient detait. Candidate Legal Practitioners should over and above the notes engage in a study, of Schedule 8 - Cade of Good Practice: Dismissal and Code of Good Practice on dismissals based on operational requirements. 9,1 FORMATIVE ASSESSMENTS: DISMISSALS Case Stud) You are Mr Peter Zodwa. You were employed by CFO Financial Solutions CC, @ Polokwane based Entity. On 2 April 2020 at 3pm you were approached by the manager in charge Mr Johan Dove, who informed you that there was R300.00 missing from the petty ‘cash when a reconciliation was done at 2pm by the bookkeeper. The only people on duty that morning was the manager, the receptionist and yourself, all of whom had access to the petty cash tin. You immediately informed the manager that you knew nothing about the missing 300.00 and also informed him that you went out on lunch that day between 11h30 and 12h30. The manager then informed you that polygraph tests would be conducted the next day in order to determine the truth. On 3 April 2020 when you arrived at work you found strange people in the office setting up machines which you later became aware was polygraph machines. The manager asked you if you would volunteer to be tested and you agreed as you had nothing to hide. After being tested you were asked to leave and the receptionist was called in, also to be tested. You don’t know if the manager himself underwent the polygraph test. Later that afternoon you were informed that everyone else had passed the test except yourself. You were given a notice to attend @ disciplinary hearing the following morning at 10am. The notice explained your rights and informed you that you would be charged for theft of R300.00. on 4 April 2020 at the disciplinary hearing, you were found guilty of stealing the 300.00 solely on the basis that you were the only person to have failed the polygraph test. You were Immediately dismissed and asked to leave the premises. ‘At the time of your dismissal, you had worked for the company for 5 years and earned a salary of R6000.00 before deductions. You did not receive any leave TABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OssA 7or sick leave for 2020 nor did you receive salary for the period 1 April 2020 to 4 April 2020. You now consult with an attorney with the intention of challenging your dismissal. DRAFT A LEGAL OPINION ADVISING MR ZODWA, YOUR CLIENT, AS TO WHETHER HIS DISMISSAL IS PROCEDURALLY AND SUBSTANTIALLY FAIR. Case Study 3 You are Mrs Petunia Motsepe a well-known businesswoman in the Bloemfontein area, You have just been awarded the tender to build a new stadium for Bloemfontein Celtic. Being such a busy person, you rarely have time to attend to the everyday household chores and the looking after of your four school going kids. Two years ago, you employed Mrs Rachael Ndo as a domestic worker to assist you with the household chores. For the first six months she was a real blessing, taking over so much of pressure from yourself thus allowing you to spend more time on your business ventures. You rewarded her very well by paying her a salary of R3500.00 per month and over and above this always bought clothes and food for both her and her children, However, in the last year and a half she started to complain that she is expected to work very hard while you are always away at meetings. She started to do things at a much slower pace than before and also at times did the exact opposite of what you asked her to do. As you are a very busy person you tolerated her conduct while constantly asking her to improve. On 4 October 2020 you returned from work very tired at 7pm. You found that Rachael had not cleaned up the house that day, nor was there any supper prepared. In fact, she was nowhere to be found. You immediately called her on her cell phone (which you bought for her) only to find it on voicemail. Having had enough, you left 2 message on her voicemail informing her that she should not bother coring back to work as she is fired, Two weeks later you received a letter from the CCMA informing you that Rachael has referred a case of unfair dismissal to them, against you and that you should LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) Issa 8attend @ con/arb hearing on the 30" of October 2020 at 9am. You immediately make an appointment with your lawyers with the intention of seeking advice as to what you should do. DRAFT A LEGAL OPINION ADVISING MRS MOTSEPE AS TO WHETHER SHE CAN SUCCESSFULLY DEFEND THE UNFAIR DISMISSAL CLAIM OF MRS RACHAEL NDO AT THE CCMA. 10. COLLECTIVE BARGAINING 10.1 10.2 10.3 10.4 WHAT IS COLLECTIVE BARGAINING? Collective Bargaining is a voluntary process in which organised labour in the form of trade unions and employees or employers’ organisations negotiate wages, terms and conditions of employment or other matters of mutual interest. The collective Bargaining process may be established institutionally by agreement or in practice. HOW DOES THE LRA PROVIDE FOR AN INSTITUTIONAL FORM OF COLLECTIVE BARGAINING? The Act provides for an institutional form of sectoral bargaining in the form of bargaining councils by providing machinery for the voluntary establishment of a bargaining council by trade unions and employer organisations in a sector and their registration as such by the Registrar of Labour Relations if their constitution provides for the scope, membership, governance, the negotiation of collective agreements and dispute procedures in accordance with the Act. HOW DOES THE LRA PROVIDE FOR COLLECTIVE BARGAINING BY AGREEMENT? The Act specifically empowers bargaining councils to determine by way of a collective agreement what matters for Collective Bargaining may be devolved to the level of the workplace. The Act permits multi-employee bargaining arrangements and provides for the enforceability of collective agreements entered into such arrangements. The Act also permits Collective Bargaining at the level of the workplace and the enforceability of collective agreements at this level. Parties enter into a recognition agreement which includes a negotiation and dispute procedure to regulate the Collective Bargaining relationship between them. HOW IS COLLECTIVE BARGAINING ESTABLISHED BY MEANS OF PRACTICE? Where there is no Bargaining Council or agreement to bargain, a group of workers or a trade union may bargain collectively as a matter of practice by making a demand on an employer under threat of a strike. Similarly, an employer or employers’ organisation may make demands and threaten LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OssA 9to unilaterally introduce them under threat of a lockout. In each of these cases, before any industrial action may be engaged in, the dispute must be referred to conciliation. 10.5 IS THERE A CONSTITUTIONAL OR STATUTORY DUTY TO BARGAIN? There is no constitutional or statutory duty to bargain. Collective Bargaining under the Act is voluntary, and employers (other than the State) and trade unfons are permitted to determine their Collective Bargaining relationships in the Institutional form of bargaining councils at sectoral level or by way of a recognition agreement at multi-employer or workplace level. Once a Collective Bargaining relationship has been established, elther in the form of a bargaining council constitution or a recognition agreement, the parties implicitly commit themselves to a duty to bargain, however such duty does not arise statutorily or contractually. In so far as the State is concerned, although the establishment of a structure of Collective Bargaining is statutorily determined, its constitution is determined by the State as employer and trade unions. The duty to bargain, too, does not arise statutorily but contractually from the agreed bargaining council's constitution. 10,6 DISTINGUISH BETWEEN DISPUTES OF MUTUAL INTEREST AND DISPUTES OF RIGHT A dispute of interest relates to something that parties want to achieve, whereas a dispute of right relates to something that parties already have or are already entitled to. The distinction between a dispute of mutual interest e.g., a demand for an increase in wages and a dispute of right e.g., the right not to be unfairly dismissed is important because they essentially follow different dispute resolution paths, Disputes of right are determined by means of arbitration or adjudication, whereas dispute of interest are determined by Industrial Action (strike). There are two exceptions to the above principle, namely organisational rights and large-scale retrenchments, which essentially are rights disputes but in certain circumstances may follow an interest dispute resolution path, i.e., strike. Section 64(2) of the LRA requires that all disputes of mutual interest that may result In a strike or a lockout are referred to conciliation. There are two exceptions - the unilateral change to terms and conditions of employment where an employer refuses a request to revert to status quo prior to conciliation and a large-scale retrenchment (s 189A) following a facilitation process. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©issA 1010.7 WHAT IS A STRIKE? Section 213 of the LRA defines a strike as: “The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest ‘between employer and worker, and any reference to work includes overtime work, whether it is voluntarily or compulsory.” In terms of this definition workers will be on strike if they stop work completely or If there is a partial refusal to work. There will be a partial refusal to work if, for example, they work slower than normal (go slow), or if workers refuse to work overtime (overtime ban). The word “concerted” means that the workers must act together in their refusal to work, If a single worker stops working, this will not constitute a strike, The refusal to work must be in order to sort out a dispute about any matter of mutual interest or grievance between a worker and an employer where the parties have been unable to reach an agreement through Collective Bargaining and conciliation, 10.8 WHAT IS THE DIFFERENCE BETWEEN A PROTECTED STRIKE AND AN UNPROTECTED STRIKE? Prior to the 1996 Constitution, workers were free to strike but did not have a right to strike. This meant that the law did not protect them if they went on strike. They could be dismissed because in terms of the common law a strike breaches the contract of employment. In terms of the new Constitution workers have the right to strike. The LRA protects employees from dismissal provided that their strike complies with the procedures that are set out in s 64 of the LRA. These strikes are known as Protected strikes. If an employer dismisses 2 worker for participating In a protected strike such a dismissal is automatically unfair, (5 187 of the LRA) and the employee may refer the dismissal to the Labour Court. Employees however can be dismissed for misconduct during a protected strike (for example violence or intimidation of non-striking workers). ‘An employer Is entitled to employ replacement labour during a protected strike. However, where a service has been designated @ maintenance service, employers may not employ replacement labour if non- maintenance employees embark on a strike. ‘An employer does not have to pay a striking employee his selary or wages during a protected strike. However, if the employee's accommodation and food form part of his/her wages (payment in kind), the employer must LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUSSA 1continue to provide the employee with accommodation and food but may recover the costs thereof after the strike Is over. 10.9 WHAT ARE THE CONSEQUENCES OF AN UNPROTECTED STRIKE? If employees embark on a strike without following the procedures that are set out in s 64 of the LRA, this is considered to be an unprotected strike. The consequences of an unprotected strike include: + The employer may apply to the Labour Court for an interdict to stop employees from participating in the unprotected strike. + The Labour Court can order the union to pay the employer for any financial losses suffered as a result of the strike. + Employees may be dismissed for participating in an unprotected strike, + The Code of Good Practice: Dismissal - Item 6 of Schedule 8 (LRA) provides guidelines to be followed by employers before dismissing employees that have embarked on an unprotected strike. 10.10 WHAT IS THE PROCEDURE TO FOLLOW FOR A STRIKE TO BE PROTECTED? In terms of s 64 of the LRA, a strike will be protected if: + The dispute has been referred to a bargaining council or the CCMA for conciliation, + The CCMA or the bargaining council has issued a certificate indicating that the dispute remains unresolved, or * Aperiod of 30 days has passed since the dispute was referred to the bargaining council or the CCMA, or where the parties agree to extend the 30-day period and that period has passed (no certificate needs to be issued); and + The employer is given at least 48 hours’ notice of the strike, 10.11 WHEN CAN EMPLOYEES NOT EMBARK ON A STRIKE? In terms of s 65 of the LRA employees cannot strike under the following circumstances: * Where there is a collective agreement that prohibits workers from striking in respect of the issue that the employees and employer are in dispute about. + Where an agreement provides for the dispute to be referred to arbitration. * Where an employee has a right to refer the dispute to arbitration or the Labour Court in terms of the LRA (i.e., a dispute of right). This does not include a dispute about organisational rights. In organisational rights disputes, workers have the option to refer the dispute to arbitration or to go on strike. * If there is an arbitration award, collective agreement or a determination in terms of the BCEA that controls or regulates the issue in dispute. A determination made in terms of the Wage Act that regulates the issue in dispute, will bind the parties to it for the LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©LSSA 12first year of that determination. + Workers engaged in essential or maintenance services are excluded from taking part in strike action. + Where the strike is based on an unlawful demand. * Section 112(1) of the Electoral Act 23 of 1998 provides that services provided by the Independent Electoral Commission is an essential service for purpose of the LRA. Section 112(2) states that strikes and lockouts on voting day by employees/employers in the public transport and telecommunications sectors are prohibited and not protected in terms of Chapter IV of the LRA. 10.12 WHAT CONSTITUTES A SECONDARY STRIKE? A secondary or sympathy strike occurs where employees in another company (Company 8) strike in support of striking workers in company A. The employees in company 8 are not involved in the dispute between the employees and employer in company A. Often there may be a relationship between employer A and employer B, in that employees involved in the secondary strike may be employed in companies that are customers or suppliers of company A. There must be @ reasonable possibility that the secondary strike will have a direct or indirect effect on the business of company A. A secondary strike by the employees of company B is only protected if It is in support of a protected strike by the employees of company A, and seven days’ notice of the secondary strike has been given (s 66 of LRA). 10.13 WHAT CONSTITUTES PROTEST ACTION? Employees (other than those employed in essential services or maintenance services) may protest against the government or a group of employers (or any other issue not directly work related) by staying away from work. In terms of s 77 of the LRA such employees are protected from dismissal, on condition that a registered union or trade union federation calls the protest action. The union or federation must advise NEDLAC of the protest action and the reasons for the protest action, what form the protest will take, at least 14 days ahead of the intended protest action. The issue must be one that NEDLAC or another appropriate forum had an opportunity to consider. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OssA 1310.14 WHAT CONSTITUTES A LOCK-OUT? Section 64(1) states that: (1) Every employee has the right to strike and every employer has recourse to lock-out if - {a) The issue in dispute has been referred to a council or to the Commission as required by this act and - (i) Acertificate stating that the dispute remains unresolved has been issued; or (ii) A period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that (b) In the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless ~ (i) The issue in dispute relates to a collective agreement to be concluded in @ council, in which case, notice must have been given to that council; or (ii) The employer is a member of an employers’ organisation that is 2 party to the dispute, in which case, notice must have been given to that employers’ organisation; or (c) In the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be conduded in a council, in which case, notice must have been given to that council, or (d) In the case of a proposed strike or lock-out where the State is the employer, at least seven days’ notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c) The LRA allows employers to physically keep workers out of the workplace provided certain procedures are complied with, (these procedures are contained in ss: 64; 65; 67 & 68 of the LRA). The CCMA or @ council must conciliate the dispute. A certificate must be issued stating that the dispute has been unresolved. An ‘offensive lock out’ is where an employer locks workers out following a deadlock in negotiations. This takes place before the union goes on strike and requires the employer to refer the matter to the CCMA / Council for LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUSSA 14conciliation. Upon receipt of certificate (unresolved) or after the 30-day conciliation period has passed, the employer may give the trade union or the workers 48 hours’ notice of the lockout. In these circumstances employers are not permitted to use replacement labour. A ‘defensive lock out’ is where an employer locks workers out after the strike has started in order to force them to accept an offer. In this case the employer is entitled to use replacement labour. This does not require a separate referral to the CCMA/Council for conciliation, Where an employer locks workers out only for refusing to work in terms of their contract of employment, this will not constitute a lock-out. 10.15 DOES A TRADE UNION HAVE TO BALLOT ITS’ WORKERS? 10. 95(5)(p) of the Labour Relations Act (the LRA) has always included in the requirements for the registration of trade unions or employers’ organisations a provision in their constitutions that before calling a strike or lock-out 2 ballot must be conducted of members in respect of whom they intend to call a strike or lock-out. However, there was no clear interpretation of the meaning of the ballot, which meant that even a show of hands at a mass meeting might be enough to meet the requirement. This posed potential problems such as a lack of clarity on what the vote was in favour of, whether the attendance at the meeting in question was fully representative of those affected, whether a show of hands was free from the possibility of intimidating behaviour, and whether the outcome was accurately recorded. 10.16 DOES THE ABSENCE OF A BALLOT INVALIDATE A PROTECTED STRIKE OR LOCK-OUT? Section 67(7) of the LRA remains in place, which means that the LRA does not require the conduct of a ballot as a pre-requisite for a protected strike or lock-out. The obligation of the ballot flows instead from the constitution of a registered trade union or employers’ organisation. Registered trade unions and employers’ organisations are obliged to comply with their constitutions even though failure to do so will not have the consequence of invalidating the protected nature of the strike or lock-out. ‘Transitional provisions are introduced to provide for the Registrar of Labour Relations to consult with the national office bearers of those unions and employer organisations on the most appropriate means to amend their constitutions to comply with the requirements of s 95(5)(p). The Registrar of Labour Relations shall issue a directive on the period within which each registered trade union or employer's organisation must amend its constitution in accordance with the amendment procedures set out in their respective constitutions. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUssA 15The Department of Labour will Issue guidelines on balloting requirements. 10.17 ADVANTAGING, OR PROMISING TO ADVANTAGE AN EMPLOYEE OR APPLICANT FOR EMPLOYMENT IN EXCHANGE FOR THAT PERSON NOT EXERCISING ANY RIGHT CONFERRED BY LRA In FAWU v Pet's Products (Pty) Ltd (2000) 21 ILJ 1100 (LC) the court held that an employer acted contrary to S 5 by given non-striking employees a bonus for not engaging in a protected strike. In Num v Nomakwa Sands - a division of Anglo Operations Ltd [2008] 7 BLLR 675 (LC) the Labour Court held that the onus was on the employer to prove the fairness of differential treatment of employees on the basis that some took part in a protected strike and others who did not. In SA Freight and Dock Workers Union v Safcor Freight (Pty) Ltd t/a Safcor Panalpina & Others (2011) 32 ILJ 415 (LC) the Labour Court found that the employer contravened sec 5 of the LRA when it granted non-unionised employees an early increase in salary on condition that they did not join or that they resigned from the union. 10.18 AN EMPLOYER MAY NOT PROHIBIT ITS MANAGERIAL EMPLOYEES FROM SERVING AS SHOP STEWARDS In Imatu v Rustenburg Transitional Local Council [1999] 12 BLLR 1299 (LC) the court found that an employer was not permitted to prohibit its managerial employees from serving as trade union office bearers. However, the employer could take action against those employees if they committed misconduct by disclosing confidential information to the union or Were unable to perform their usual tasks such as representing the employer in negotiations with the union or chairing disciplinary hearings. 10.19 IT IS NOT A REQUIREMENT THAT A UNION OR EMPLOYER'S ORGANISATION BE REGISTERED IN ORDER TO BE RECOGNISED AND PROTECTED BY THE LRA In NEWU v Leonard Dingler (Pty) Ltd [2011] 7 BLLR 706 (LC) a deregistered union sought to rely on its fundamental right to engage in collective bargaining (in terms of sec 23 of the Constitution). Its application failed, but the Labour Court left open the posstbllity that the union could engage in a strike to compel the employer to enter into collective bargaining. 10.20 A STRIKE NOTICE MUST ALSO IDENTIFY THE ISSUE IN DISPUTE THAT GAVE RISE TO THE STRIKE In SA Airways (Pty) Ltd v SA Transport & Allied Workers Union (2010) 31 113 1219 (LC), the Labour Court adopted @ purposive interpretation in finding that the strike notice must also identify the issue in dispute that gives rise to the strike — even though this requirement does not appear in the LRA itself, LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUssA 1610.21 MERE PARTICIPATION IN AN UNPROTECTED STRIKE DOES NOT AUTOMATICALLY WARRANT DISMISSAL In NUM 0.b.0. employees v CCMA & Others (2011) 20 LAC 1.11.6 the Labour Appeal Court again confirmed that the mere participation in an unprotected strike did not warrant dismissal, and that a CCMA commissioner evaluating the fairness of such a dismissal must consider all the relevant circumstances in the case. In this case a number of employees had refused to work because the employer had unlawfully deducted money from their wages. The fact that the strike was caused by the employer's unlawful action weighed uppermost in the mind of the Labour Appeal Court. 10.22 THE STRIKE NOTICE MUST PROVIDE THE EMPLOYER WITH PRECISE DETAILS OF WHEN THE STRIKE WILL COMMENCE In Ceramic Industries Ltd t/a Beta Sanitaryware v National Construction Building and Allied workers Union (1997( 18 ILJ 671 (LAC) The Labour Appeal Court has held that although the LRA is silent on this point, the purpose of the notice period is to provide the opportunity to the employer to prepare for the strike and make alternative arrangements to replace labour. 10.23 WHERE PARTIES HAVE CONCLUDED A COLLECTIVE AGREEMENT SETTING OUT PRE-STRIKE PROCEDURES, WILL THE STRIKE STILL BE PROTECTED IF THESE PROCEDURES ARE NOT COMPLIED WITH In County Fair Foods (Pty) v FAWU & Others [2001] s BLLR 494 (LAC) the court held that parties are free to negotiate collective agreements, which will regulate the requirements the parties wish to impose prior to either party engaging in industrial action, however a strike will still remain protected if the employees comply with the requirements contained in the LRA. 10.24 DISCLOSURE OF INFORMATON FOR PURPOSES OF COLLECTIVE BARGAINING In Atlantis Diesel Engines (Pty) Ltd v National Union of Metal Workers of S.A (1994) 15 ILJ 124 (A) in which the Appellate Division aligned itself with the Labour Appeal Court in the same case - the court held that “sufficient information must be disclosed to make the process of consultation meaningful. However, an employer cannot be expected to disclose Information which: (a) _ Is not available to it, (b) _ Is not relevant to issues under discussion and (c) Could harm the employer's business interest for reasons other than it is relevance to the consultation process. E.g., trade secrets and other confidential information”. In NUMSA v Comark Holdings (Pty) Ltd (1997) 18 ILI 516 (LC) the Labour Court held that because an employer is privy to all necessary and LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©@LSSA 17relevant information, it should disclose information requested by the other party, subject to the principles set in the Atlantis Diesel Engines (Pty) Ltd case, In Public Servants Association 0.b.o. Strydom v Department of Housing and Local Government (1997) 18 ILJ 1127 (CCMA) the Commissioner noted that the employee had a clear interest in the information sought, the information sought was relevant to collective bargaining or consultation and was of the kind contemplated in s 14 (4) and it was ordered to be disclosed. 10.25 LIMITATIONS ON DISCLOSURE OF INFORMATION In Mekler v Penrose holdings Ltd (1995) 4 LCD 329 (IC) the court set out what does not constitute privileged information for purposes of disclosure of information. In PFG Building Glass (Pty) Ltd v CEPPAWU & Others [2003] 5 BLLR 475 (LC) the Court held that information cannot be disclosed if the disclosing of such information amounts to a contravention of the law or a court order, e.g., an employee's HIV status, 10.26 SECONDARY STRIKES In Clidet no 957 (Pty) Ltd v SAMWU & others (2010) 19 LC 9.5.4, the court held that there should be a reasonable possibility that the secondary strike will have a direct or indirect effect on the business of the primary employer. 10.27 BREACH OF PICKETING RULES In the matter of Dischem Pharmacies v Malema and Others (34124/18) the court held that it was entitled to grant interim relief where picketing rules were materially breached. Violence, unlawful conduct and intimidation by picketers justifies the complete suspension of the picket. 10.28 LIMITATION TO THE RIGHT TO ENGAGE IN COLLECTIVE BARGAINING In the case of Police and Prisons Civil Rights Union v South African Correctional Services Workers Union and Others (2018) 39 ILJ 2646 CC the constitutional court held that “constitutional rights conferred without express limitations should not be cut down by reading implicit limitations into them, and when legislative provisions limit or intrude upon those rights, they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning. The court went further on to state that the rights guaranteed by the Bill of Rights may be limited by a law of general application only. s 23 (5) of the Constitution expressly states that the right to engage in collective bargaining may be limited by legislation only if such legislation meets the requirements of s 36. Therefore, an agreement that seeks to limit the right LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OISSA 18to collective bargaining would be inconsistent with the constitution and invalid. 11. DISPUTE RESOLUTION These sections are sufficiently dealt with in the LDR Practice Guide, with forms and precedents provided at the end. 12. LEGISLATION 12.4 LRA Candidate Legal Practitioners are to be referred to the Basic Guide to the Labour Relations Act found at the end of the LDR Practice Guide. 12.2 FORMATIVE ASSESSMENTS - BCEA NOTICE PERIODS Case Study 4 Answer the questions below giving your reason for each. Questions 1. Grace has worked as a receptionist at a car dealership for one and a half years. She resigns to take up employment elsewhere. What notice is she required to give in terms of the BCEA? a. 1 Month b. 4 Weeks c, 2 Weeks REASON: _ 2. The Jones hired Joseph to drive their son, Harry, to and from school and extra-mural activities, Joseph's duties further include doing the family shopping and running errands for Mr Jones, who is blind. Eight months after being hired, Joseph’s contract is terminated because the Jones family is relocating to Kenya. What statutory notice must Joseph be given? a. 1 Month b. 4 Weeks c 2 Weeks REASON: 3. John has worked for a shoe company for just over a year. He is dismissed for incapacity and the company has agreed to pay him notice pay instead of John having to work the notice period. What will the statutory minimum of the notice pay be? a. 1 Month b. 4 Weeks. c. 2 Weeks LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©LSSA 19REASO! 4, Rejoice has worked as a bookkeeper for the company for 9 years. She resigns. Her contract of employment provides that if either party terminates the contract they must give the other party 2 months’ notice What notice must Rejoice give? a. 1 Month b, 4 Weeks c 2 Weeks REASO! 5. Sina worked in a hair dressing salon for 3 months until the manager told her that she was not suited to the work and dismissed her. What is the | statutory notice Sina must be given? a. 1 Week b. 4 Weeks c. 2 Weeks REASON: 6. Alfred has worked as a sales representative for 11 months when he is retrenched. What Is the minimum statutory notice the employer must give Alfred? a. 1Month b. 4 Weeks c. 2 Weeks REASON: 7. May a collective agreement provide that employees In the manufacturing sector who have worked for a year or more are to be given two weeks’ notice on termination of the employment by the employer and the employees are required to give four weeks’ notice if they resign? a. Yes b. No REASON: | 8. Grace has worked as a receptionist at a car dealership for one and a half years. She resigns to take up employment elsewhere. What notice is she required to give in terms of the BCEA? a. 1 Month b. 4 Weeks c 2 Weeks LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©UssA 2010, 11. 12, 13. REASON: The Jones hired Joseph to drive their son, Harry, to and from school and extra-mural activities. Joseph’s duties further include doing the family shopping and running errands for Mr Jones, who is blind, Eight months after being hired, Joseph’s contract is terminated because the Jones family is relocating to Kenya. What statutory notice must Joseph be given? a. 1 Month b. 4 Weeks G 2 Weeks REASON: John has worked for a shoe company for just over a year. He is dismissed for incapacity and the company has agreed to pay him notice pay instead of John having to work the notice period. What will the statutory minimum of the notice pay be? a. 1 Month b. 4 Weeks: c. 2 Weeks REASON: Rejoice has worked as a bookkeeper for the company for 9 years. She resigns. Her contract of employment provides that if either party terminates the contract they must give the other party 2 months’ notice, What notice must Rejoice give? a. 1 Month b. 4 Weeks c 2 Weeks REASON: Sina worked in a hair dressing salon for 3 months until the manager told her that she was not suited to the work and dismissed her. What is the statutory notice Sina must be given? a. 1 Week b. 4 Weeks c. 2 Weeks REASON: Alfred has worked as a sales representative for 11 months when he is retrenched. What Is the minimum statutory notice the employer must give Alfred? a. 1 Month b. 4 Weeks ‘LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ISSA 2hc. 2 Weeks REASON: $$ 14. May a collective agreement provide that employees In the manufacturing sector who have worked for a year or more are to be given two weeks’ notice on termination of the employment by the employer and the employees are required to give four weeks’ notice if they resign? a. Yes b. No REASON: _ 12.3 CALCULATIONS IN TERMS OF BCEA i. YOU NEED WEEKLY WAGE Where could this be appropriate? Severance Pay / Maternity Leave Notice Periods Formula: YOU HAVE MONTHLY WAGE TAKE MONTHLY WAGE + 13 x 3 (OR 4.33333) Example: ‘Assuming Monthly Wage Is R3 900 Therefore R3 900 + 13 = R300 x 3 = R900 per week 2. YOU NEED DAILY WAGE Where could this be appropriate? Sunday Work Calculations / Leave Days / Public Holiday Work Formula: YOU HAVE MONTHLY WAGE Work out weekly wage + number of days worked per week (i.e, 5 or 6). Example: Monthly wage is R3 900 Weekly is R900 If the employee works 5 days a week, the daily wage Is R900 + 5 = R180 If the employee works 6 days a week, the dally wage is R900 + 6 = R150 3. YOU NEED HOURLY WAGE Where could this be appropriate? [ABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) ©USSA 22Overtime calculations 7 Sunday work calculations 7 Public Holiday work calculations, Formula: YOU HAVE MONTHLY WAGE Establish weekly + hours ordinarily worked Example: Monthly wage is R3 900. Employee works 5 days a week and 9 hours a day First work out weekly wage as above (R900 per week) Divide weekly wage by number of hours the employee work during the week (Employee works 9 x 5 hours = 45 hours per week) 900 = 45 = R20.00 per hour 4. YOU NEED MONTHLY WAGE Where could this be appropriate? Maternity Leave Formula: YOU HAVE WEEKLY WAGE Divide by 3 x 13 Example: Weekly wage Is R900 + 3 = R300 R300 x 13 = R3 900 EXAMPLE: Gladys works in a factory and earns Ri 500.00 per month. She works 5 days Per week and 9 hours per day. What does she earn per week and per hour? Per week; Ri 500 + 13 = R115.384 R115.384 x 3 = R346.15 (weekly) Per hour: R346.15 + 45 = R7.69 (rounded) EXERCISE: 1. Jeremiah is an accountant and earns R6 500 per month. What is his weekly wage? R6 500 + 13 = R500 LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUssA 23R500 x 3 = RI 500 (weekly) ] 2. Norea is a domestic worker who works two days per week. She is paid R25 per day, What does she earn per week? R25 x2 = R50 3. Tomson is an IT executive who earns R52 000 per month. What does he earn per week? R52 000 + 13 = R4.000 R4 000 x 3 = R12 000 4. Randy a saleslady in a clothing shop, earns R950 per week and works eight hours a day from Monday to Friday and on Saturday she works 3 hours in the morning. What does she earn per hour? R950 + 43 (number of hours worked per week: 40 + 3) = R22.09 12.4 EMPLOYMENT EQUITY ACT instructions: Individually, and then in groups, record your responses to the following questions: What [s meant by indirect discrimination? What Is the test for discrimination? Define sexual harassment What is the dispute resolution path for disputes relating to unfair discrimination? 5. If a complaint concerning sexual harassment is not resolved by internal mechanisms, whet dispute resolution path should the complainant follow? 6. Explain fully whether It is permissible for an employer to require a job applicant to undergo an IQ test prior to selection for a position. 7. May an employer require job applicants to submit to a HIV or Aids test? Explain your answer. Bene Summative assessments for Candidate Legal Practitioners should take the form of an open book exam where candidates are able to refer to the Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity Act and be expected to answer practical questions where they can be assessed for understanding of the relevant principles applicable to Labour Dispute Resolution. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OLSSA 24It is suggested that the formative assessments be conducted during the three days allocated for training per semester and that the summative assessment be conducted at the end of the course. Trainers may also conduct moot court / role play exercises where Candidate Legal Practitioners can be allocated roles such as chairperson of disciplinary enquiry / initiator / union official in order to enhance the learning experience. LABOUR DISPUTE RESOLUTION (TRAINING GUIDE 2) OUSSA 25