LABOUR%20LAW%20QUESTIONS%20AND%20 Case LLW2601 - Individual Labour Law

LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS QUESTION PAPER OCTOBER/NOVEMBER 2015 QUESTION 1 Write brief notes on the following: a) Formal equality as a form of equality based on section 9(3) & (4) of SA Constitution. (2)  s9 (3)of the Constitution states that, The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth;  Sub-section (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. b) Fixed-term employees as a category of non-standard employees. (3)  Temporary employment services (hereafter TES) (Common called labour brokers) and employees employed by them are temporary employees  Fixed term employees Part-time employees c) The duty of the employer to deal fairly with the employee. (4)  To remunerate the employee  To provide the employee with work  To provide safe working conditions  To deal fairly with the employee d) Constructive dismissal as a form of dismissal in terms of the LRA (4)  The employee must show he/she has resigned  The employee must show that the reason for the resignation was that continued employment became intolerable  The employee must show that it was the employer’s conduct that created the intolerable circumstances. e) The meaning of “same work” for purposes of “equal pay for work” (4)  The Labour Court explained that the issue of equal pay for equal work was not regulated in an Act in SA but was dealt with in Mangena & Others v Fila SA case:  Paying an employee is an employment policy or practice ito the EEA  Paying an employee less than another employee for performing the same or similar work based on a specified or an unspecified ground ito EEA constitutes less favourable treatment. Therefore any claim for equal pay for work that is the same or similar, falls to be determined ito the EEA.  The same is valid for claims for equal pay for work of equal value. The claimant must establish a link between the differentiation and a specified or unspecified ground. Once such a link is established, section 11 of the EEA then requires the employer to show that the discrimination is not unfair. f) The meaning of “suitably qualified” for purposes of benefitting from affirmative action.(4) Suitably qualified means that the person has one or a combination of the following factors:  Formal qualifications  Prior learning  Relevant experience  The capacity to acquire, within a reasonable time, the ability to do the job g) The meaning of “small employer” in context of dismissal based on operational reasons. (2)  A small employer is an employer that employs fewer than 50 employees.  The LRA does not make provision for a large-scale dismissal by a small employer; therefore a small employer will retrench employees in accordance with section 189. h) Maximum working hours as provided by the BCEA (3)  A maximum of 45 hours a week.  If an employee works five days a week or less, he/she may not work more than 9 hrs a day.  If an employee works six days or more a week, then he/she may not work more than 8 hours a day (which include a lunch break) i) The meaning of restraint of trade in the contract of employment. (4)  A restraint-of-trade clause is normally included in employment contracts to protect the interests of the employer against unfair competition from employees after their employment ended.  The purpose is to protect the employer’s trade secrets, goodwill and business connections.  A restraint-of-trade clause is lawful and enforceable unless it is unreasonable as to prevent ex-employee from earning a living. Magna Alloys & Research v Ellis case. j) Lock-out as a form of industrial action. (5)  There must be a refusal to work.  The refusal must be a concerted action by people employed by the same or different employers  The refusal must be for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between an employer and employee.  A strike /lock-out must comply with the following requirements set by the Act iot be protected.  The action must comply with the definition of ‘strike’ or ‘lock-out’.  It must comply with the procedural requirements ito section 64 of the LRA and there should be no limitations ito s65 of the LRA. QUESTION 2 a) Seane (Pty) Ltd (“Seane”) is a reputable and reliable motor vehicle dealer in Difateng. Seane sells both luxury and semi luxury cars. In 2014, Seane encountered financial problems since it could not sell enough cars compared to previous years. As a result, three directors were dismissed (retrenched) in an attempt to save the business. The hard times continued and in June 2015, Seane wants to dismiss (retrench) more employees and approaches you for advice. Answer the following questions. i) Under which category of operational reasons will the dismissal of employees in this case fall? Motivate your answer. (2) The category of operational reasons for the dismissal of employees in this case will fall under fair dismissal based on the criteria of retrenchment. Dismissal for operational reasons is also regarded as a “no-fault” dismissal because the termination is not as a result of the actions or fault of the employee. ii) Assume that the reason for their dismissal is due to the fact that Seane bought a new machine in order to increase production. Will this constitute a valid reason for dismissal based on operational reasons? Motivate your answer. (2)  Yes, the reason for a valid reason for dismissal based on operational reasons of more employees would be justifiable.  The reason for the dismissal is on operational requirements as defined in the LRA i.e. economical, technological, structural or similar needs; the reason is justifiable and based on rational grounds. iii) What do the concepts LIFO and FIFO mean for purposes of a fair dismissal based on operational reasons? (4)  The concept LIFO for the purposes of a fair dismissal based on operational reasons means “Last in First Out” This is considered fair in almost all circumstances.  The concept of FIFO for the purposes of a fair dismissal based on operational reasons means “First in First Out”.  LIFO and FIFO are criteria for retrenchment purposes. b) Draw a distinction between “absence without leave” and “desertion”. (6) This would amount to abscondment or absence without leave (AWOL) and can be distinguished as follows:  Absence without leave:  If the employee does not want to terminate the employment contract but stays away from work without leave  Warrants dismissal if the period of absence is unreasonably long  If the employee returns after a few days with a letter to show that he/she had a reason for the absence e.g. having been hospitalised, imprisoned , then a dismissal will not be appropriate  Desertion:  If an employee, without resigning, stays away from work with the intention of terminating the contract of employer  The employer must terminate the contract of employment by holding a disciplinary hearing in the absence of the employee  Even if the employee returns after dismissal, the employer must give him/her the opportunity to state a case. c) Abram applied for the post of Managing Director at Hamba Boya Hotel. When he applied for the position, Abram indicated in his CV that he had completed an MBA degree, whereas he actually obtained it seven months after his appointment. When this was discovered, Abram was charged according to the company policy with dishonesty based on his misrepresentation made in his CV. Discuss whether or not Hamba Boya Hotel may dismiss Abram based on dishonesty. (6) Yes, Abram can be dismissed from his post as Managing Director because he was dishonest. He intentionally hid the truth from his prospective employer and his behaviour can be seen as misconduct with is a dismissible offence. However, in terms of the LRA, Abram must still be given an opportunity to state his case, and has recourse to the CCMA and to Labour Court if the matter cannot be resolved. QUESTION 3 a) Collective bargaining is the core of collective labour law. Describe the process of collective bargaining. (7)  Neither the Constitution nor the LRA defines collective bargaining.  The process of collective bargaining entails negotiations between two or more parties namely a union /s on the one hand and the employer/employers’ organisation on the other hand about terms and conditions of employment and other matters of mutual interest between parties.  Collective bargaining presumes willingness by each party not only to listen to and consider the representations of the other party but also to abandon it own fixed positions in order to find common ground.  Collective bargaining can take place at plant level, sector level or industry level.  Provision is made for the establishment of bargaining councils for a particular sector.  It’s at this level where bargaining will take place in bargaining councils.  Bargaining councils can be established in private as well as public sectors.  In the public sector the State is the employer. b) The Worker’s Rights Union (“WRU”), a registered trade union and Amandla Manufacturers (AM) a member of the Manufacturers Employers’ Association, conclude a collective agreement which regulates the terms and conditions of employment of employees. Both the WRU and AM are partners to the Bargaining Council for the Manufacturing Industry in Gauteng. Discuss the binding nature of a collective agreement concluded by a bargaining council. (6)  A collective agreement binds:  The parties to the agreement  Each party to the agreement and the members of every other party to the agreement in so far as the provisions are applicable to them  Members of a registered trade union and employers who are members of a registered employees’ organisation that are party to the collective agreement if it regulates: Terms and conditions of employment The conduct of employers in relation to their employees or the conduct of the employees in relation to their employer Employees who are not members of a registered union/s party to the agreement are bound by the agreement if: • The employees are identified in the agreement • The agreement expressly binds the employees • The trade union/s represents the majority of all the employees employed in the workplace. c) Draw distinction between “closed shop agreements” and “agency shop agreements” (4)  An Agency Shop agreement is an agreement entered into between a representative trade union and an employer in terms of which the employer must deduct an agency fee from the wages of employees identified in the agreement who are NOT members of the trade union but are eligible for membership.  A closed shop agreement is an agreement entered into between a representative trade union and an employer ito of which all employees covered by the agreement must be members of a trade union. d) Alpha Workers Union and Alpha Manufacturers started negotiations at the beginning of 2015. Amongst the AWU’s demands is a travel allowance for employees (regulated in terms of the bargaining council agreement) and an end to the outsourcing of certain services by the company. AWU and AM failed to reach agreement on the two issues and they were both referred to the industry’s bargaining council for conciliation. The council also failed to settle the disputes and AWU gave AM notice in order to engage in a strike about the issues. The employer argues that AWU cannot go on strike about the two issues as the first issue is regulated in terms of a collective agreement and the second issue is not a matter of mutual interest as required by the definition of a strike. i) Discuss whether AM’s argument is correct and whether the strike by members of AWU will therefore be protected or not. (7)  It could be argued that AM’s argument is valid. Collective bargaining is voluntary in South Africa. Both the Constitution and the LRA do not compel trade unions and employers to bargain with each other.  However, the trade union AWU can embark on a strike action to force the employer to bargain with it if all the correct procedures have been followed ito LRA.  Nevertheless, in order for a strike to be protected, the union must give the employer, in this case AM, 48 hours notice to engage in a protected strike action.  In this case, the trade union AWU, has given the employer notice but time was not specified in terms of regulations of the LRA, that its members will be engaging in a strike action to address the unresolved issues.  Thus the employees belonging to the trade union, AWU will be participating in an unprotected strike action as the council also failed to settle the disputes between the union and the employer.  In fact, the matter must first be referred to the Labour Court before the union can embark on a strike action.  The travel allowance for employees was regulated ito the bargaining council’s agreement and must settled by way of arbitration.  The second issue where the employer is outsourcing certain services is not a matter of mutual interest as required by the definition of a strike which both parties must adhere to, as this does not affect the employees’ wages or conditions of employment.  Thus the strike action will be unprotected as the issues must be taken to the Labour Court who has jurisdiction over such matters. ii) Assuming that the strike action is unprotected, discuss the legal consequences which members of AWU may face for their participation in the strike. (6)[30] If employers and employees do not comply with the requirements for protection, the action will be unprotected and will have certain consequences such as:  Interdict:  if the strike or lock-out does not comply with the provisions of section 64 and 65, it will be unprotected.  The Labour Court has jurisdiction to grant an interdict or an order to restrain any person from participating in or acting in contemplation of an unprotected strike.  An interdict or order against an unprotected lock-out may also be granted.  The Labour Court has exclusive jurisdiction in this regard.  Compensation:  The Labour Court may order payment of ‘just and equitable’ compensation to either employees or employers who suffered any loss caused by an unprotected strike.  The claimant must prove that it suffered a loss and loss resulted from the strike.  The Labour Court must have regard to whether attempts were made to comply with the provisions of sections 64 and 65, the extent of those attempts and whether the strike or lock-out was premeditated.  Dismissal of strikers:  Dismissal provides that participation in an unprotected strike constitutes misconduct.  Strikers, who participate in an unprotected strike, or certain forms of conduct in contemplation or furtherance of an unprotected strike, may be dismissed.  If there is a serious or deliberate non-compliance with the procedures prescribed by the LRA, the dismissal will probably be fair. QUESTION 4 Discuss the requirement that a picket must be authorised by a registered trade union in order to be protected. (5)  The picket must be authorised by a registered trade union. Unregistered trade unions and employees on their own cannot authorise a picket.  The picket must be for the purpose of peacefully demonstrating. Intimidation and violence will result in civil and criminal liability.  The picket must be in support of a protected strike or in opposition to a lock-out. Pickets in support of unprotected strikes will not be protected.  Pickets may take place at any place to which the public has access but are usually held outside the premises of the employer  A picket may even be held on the premises of the employer, on condition that the employer gives permission for this. a) Discuss the various ways by which trade unions may acquire organisational rights. (10) (15) Organisational rights are granted to unions by the LRA to enable them to function more effectively and to build support at the workplace.  Only registered trade unions can exercise organisational rights such as: Conclude collective agreements which are enforceable ito the LRA Apply for the establishment of bargaining or statutory council Apply for the establishment of workplace forum Authorise a picket by its members Exercise organisational rights Represent its members at the CCMA The LRA provides for 5 types of organisational rights: 1. The right of access to the premises of the employer 2. The right to have trade union membership fees deducted by way of a stop order 3. The right to elect shop stewards 4. The right of shop stewards to get time off for trade union activities The right to disclosure of information. [100] QUESTION PAPER MAY/JUNE 2015 QUESTION 1 a) List 3 categories of non-standard employment. (3) 1. Temporary employment services (hereafter TES) (commonly called labour brokers) and employees employed by them are temporary employees 2. Fixed term employees 3. Part-time employees b) Discuss the purpose of a “restraint of trade-clause” in an employment contract. (4)  A restraint-of-trade clause is normally included in employment contracts to protect the interests of the employer against unfair competition from employees after their employment ended.  The purpose is to protect the employer’s trade secrets, goodwill and business connections.  A restraint-of-trade clause is lawful and enforceable unless it is unreasonable as to prevent ex-employee from earning a living. Magna Alloys & Research v Ellis case. c) What are the general conditions set by the Employment Services Act regarding the employment of foreign nationals? (3)  Comply with and give effect to the right to fair labour practices contained in section 23 of the Constitution.  Not have a negative impact on existing labour standards or rights/expectations of SA workers  Must promote the training of SA citizens and permanent residents. d) Discuss the employer’s duty to provide the employee with safe working conditions. (5)  The employer may, depending on the nature of the work, have to provide the employee with protective devices, install safety equipment and exercise proper supervision.  This duty arises from both common law and legislation such as the OHSA.  The duty to provide safe working conditions might even include the protection of an employee against any form of harassment (physical or psychological) in terms of EEA.  It is the duty of the employer to contribute to the Compensation Fund created ito COIDA to ensure that an employee injured on duty will be compensated.  An employee who suffers injury or damages as a result of the employer’s unlawful act or omission can institute a claim against the Compensation Fund as opposed to a claim against the employer personally