By the sweat of your brow - The Labour contract
Work is something that we all do, even housewives who do not receive remuneration for all their hard work. It dominates our lives. But work is one of the ways in which our society is organised and is a political act.
The relationship between employer, worker and the State, which use to be regulated only by the Common Law, is now further governed by the Basic Conditions of Employment Act, the Labour Relations Act and the Employment Equity Act.
Labour Law is continually changing, so that any overview will by necessity be like looking at a river in that what you see now is not what you’ll see a moment or two later.
Unfair labour practices
In Lay mans terms an unfair labour practice amounts to bad manners in the workplace.
In legal language it is something that unfairly prejudices either the employee, or the employers business, or the relationship between the employer and the employee.
Therefore these are unfair acts by the employer committed during the course of the employment relationship.
To protect employees against such unfair treatment, the Labour Relations Act 66 of 1995 (LRA) provides a closed list of unfair acts by an employer which is short of dismissal and each of these acts constitute an unfair labour practice.
An employee may only refer unfair labour practices that are mentioned in the list to the CCMA or a bargaining council.
One must however note that an act performed by an employer which is not specifically listed in the LRA can however be challenged in terms of our Constitutional Rights which provides that everyone has the right to fair labour practices.
What is the CCMA?
The Commission for Conciliation, Mediation and Arbitration, is an independent entity, which means it has no link with any particular political party, or business.
The CCMA resolves labour disputes and provides the public with advice and training on various labour issues.
How does the CCMA resolve labour disputes?
Firstly once a dispute has been raised, a Commissioner is allocated to the case to resolve the dispute within 30 days.
The Commissioner then compiles a conciliation strategy which includes mediation, gathering certain information and then recommends to the parties concerned a solution to their dispute.
Within 30 days or as per the agreed upon completion term, the Commissioner will need to provide a certificate detailing the outcome of the dispute
Before one considers referring their dispute to the CCMA, the parties should attempt to settle their disputes on their own and follow the internal company procedures which are aimed at resolving disputes in the workplace.
Parties must also ensure that all legal requirements are met. Furthermore parties to the dispute should consider the strengths of their case before referring it to the CCMA.
What is the difference between the Labour Court and CCMA?
The Labour Court is a specialised court of equity and fairness. This Court specifically deals with labour matters. Only Labour matters can be referred to a Labour Court.
Mass retrenchments, interdicts and reviews are heard by the Labour Court whereas the CCMA deals with matters regarding unfair dismissals, unfair labour practices, single retrenchments, constructive dismissals and dismissal of probation employees.
The CCMA has been created by the Labour Relations Act 66 of 1995, and is known as a "creature of statute". Thus CCMA must follow the Labour Relations Act and act accordingly and follow the Labour Court precedents.
CCMA rulings are not equivalent to judgements; therefore Commissioners need not follow previous Commissioners findings.
A protected strike vs an unprotected strike
There is a wide distinction between strikes that comply with section 64 of the LRA and those that do not. Those that do comply are known as “protected strikes” whilst those that do not comply are known as “unprotected strikes”.
If the employees strike is protected, a striker is then protected from any civil action which his or her employer may wish to institute, and the striker may not be dismissed for striking.
An unprotected strike on the other hand constitutes a breach of contract for which the employees may be dismissed, interdicted or sued for compensation by the employer.
In order for a strike to be protected, the employees must comply with section 64 of the LRA unless different procedures are provided for in a collective agreement which is binding on employees.
Section 64(1)(b) of the LRA provides that the union must give the employer at least 48 hours written notice of the commencement of the strike. The notice must specify the exact time of the commencement of the strike.