Powers of the Labour Court in South Africa.

University Degree Law

ESSAY TITLE: Powers of the Labour Court

NAME : Quincy Pule

STUDENT No. : 803p5227

COURSE : B.A.(Hons)- Industrial Relations

SUBJECT : Labour Law- Long essay

LECTURER : Mr. Pierre Naude

DUE DATE : May 28, 2003

BIBLIOGRAPHY: Page 11

In this essay I intend, in my introduction, to give a brief background on the labour relations of South Africa before 1948. Obviously this will pertain to labour related issues. I will then deal with the history of South African labour laws before the Wiehahn Commission in 1979, recommendations of Wiehahn Commission, reflect on the reasons behind the introduction of an industrial court, workplace forums, bargaining councils, Commission for Concillitiation, Mediation and Arbitration (C.C.M.A), the powers of the Labour Court and Labour Appeal Court, and jurisdiction of the Labour Court. In conclusion, I will focus on the impact of South African politics on our labour relations, and then give recommendations as to how the status quo can be ameliorated.

INTRODUCTION

It is important to note that in the interest of fair labour practices, the labour court which is a superior court that has authority, had to be established. This is because today’s employees demand equality, transparency and autonomy in their work. In September 1917, the Industrial Workers of Africa (I.W.W.) which was the first African union in South African history was formed for the “salvation of the workers and to abolish the capitalist system, to fight for their rights and benefits” (Van der Walt, 2003:1). He continues to point out that millions of workers, who were now tired of continual betrayals by worker’s parties and elected politicians, joined revolutionary trade unions that were committed to direct action and the replacement of capitalism and the state by workers’ control of production between the 1890’s and the 1930’s.

Apartheid as a system of racial segregation, domination and oppression characterised the South African political policy throughout the second half of the 20th century (1948-1994). Its aim was to maintain social, economic and political division, which in a way, was designed to safeguard white power, wealth and superior status. Until it was eradicated with the democratic elections in 1994, apartheid was dominant in South African political life, facilitating the unjust and ruthless exploitation of African labour.

According to More (2003:1), “today’s employees demand their rights as employees and want to be recognized and rewarded for their contributions in the workplace.They prefer to be consulted rather than instructed because they are aware of their worth. The employees, whose demands are either unrealistic nor unreasonable, want to be appreciated and treated as individuals and not as another irreplaceable member of the workforce”. One believes that it is on this basis that an independent judicial structure should be established, to safeguard the interests of both the employer and employee, to instill a sense of responsibility, accountability and fairness in their mutual relations.

1.HISTORY OF SOUTH AFRICAN LABOUR LAWS .

(i) Before 1948:

According to Kittner; Korner-Damman & Schunk (1989:3), South Africa’s industrial development began in the second half of the nineteenth century with large diamond and gold discoveries. The skilled workers who were white emigrated to South Africa; from Europe; the United States and Australia, and on their arrival decided to form their own (white) trade unions, and blacks and Asian workers were not represented.

It must be understood that these groups were not in competition with each other, and as a result there were no labour disputes. The migration of unskilled workers from the country to the cities at the end of the 19th century led to unrest between white and black workers. The unrest happened as a result of the national labour legislation, after the foundation of the Republic of South Africa in 1910, above all in the Mines and Works Act, 1911, according to which certain jobs in the mining industry were reserved for whites (Kittner et al, 1989:3). This means that South African labour laws were designed to maintain white domination and to deny basic worker rights for non-whites.

Calnitsky (2003;2) goes on to say that ministers and officials were given extensive and arbitrary powers regarding trade unions, minimum wages and conditions of employment and factory legislation. A separation of races was also established in industrial relations.

(ii)After 1948:

According to Kittner et al (1989:4), even before 1948, the year in which the National Party assumed power, black workers had tried to form independent black unions, but that was all in vain because the government was hostile to them. In a nutshell, as a manifestation of apartheid, the legislator only recognized unions with members of one skin colour, and only allowed white and coloured unions to participate in the industrial councils.

According to More (2003:2) “during this period, labour legislation in South Africa promoted unequal access to training; skills development; salaries; promotions; etc”. This means the white workers benefited from this legislation. Job reservation and influx control left blacks unable to fend for themselves and inadequately trained.

In the 1950’s there were three influential trade unions, i.e., SACOL (exclusively white); TUCSA (white and coloured) and coloured union and temporarily black unions; and SACTU ( black union). In 1956 the LRA courts, guided by their unfair labour practice jurisdiction, identified a variety of employment practices apart from dismissals, which they pronounced unfair.

Kittner et al (1989:3) states that as a result of its affiliation to the ANC, it openly “confronted the apartheid system”. Because of hostile laws, it was disbanded and continued its work in exile. Blacks started to organize a series of strikes in the 1970’s. The Wiehahn Commission of Inquiry into labour was appointed in 1977 by the government and it recommended the removal of discriminatory labour practices. The most significant recommendations by the Wiehahn Commission were:

(i) “All employees, irrespective of race, should be granted freedom of association.

(ii) Unions should be free to determine their members (this ...

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(i) “All employees, irrespective of race, should be granted freedom of association.

(ii) Unions should be free to determine their members (this relates to the fact that previously mixed race unions were prohibited).

(iii) Job reservation for certain population groups should be abolished.

(iv) A National Manpower Commission should be established (i.e. a commission attached to the Minister of Manpower with the task of making recommendations for labour law reforms).

(v) A separate industrial court should be set up to guarantee consistent treatment of cases” (Kittner et al, 1989: 37-38).

These recommendations were the first steps towards workplace democracy.

Through the Wiehahn Commission, the labour laws were broadened to include black labour and trade union freedom was granted, but without trade union rights. The legitimacy of the white regime had become questionable. “The most consequential recommendation made by the Commission was the extension of freedom of association to cover all persons, irrespective of race or sex. The result was trade unions representing black workers were now able to make use of the machinery of the Labour Relations Act of 1956” (Bhoola,2002:4). The government did not automatically implement those recommendations. Instead, it was content to only make some amendments to the Industrial Conciliation Act. It must be noted that black unions were not represented in the commission, but were only able to present their views in the form of written submissions. Through the commission the unions succeeded in using the reforms as a means of building up their own organizational structures.

Because of the recommendations made by the Wiehahn Commission, the Industrial Conciliation Act was renamed in 1981 the Labour Relations Act. The three most important changes were:

(i) “Union rights were extended to all South African employees irrespective of race.

(ii) Unions were granted freedom determine their members; race restrictions in this area were lifted.

(iii) The Native Labour Regulation Act, previously the labour statute applicable to blacks, was repealed” (Kittner et al, 1989: 38).This was done in the name of minimizing industrial strife.

(iii) Labour Matters from Civil Court to Labour Court:

The 1980 reforms allowed black unions to register for the first time and were, as a result, admitted to the state industrial council system as bargaining partners. The Wiehahn Commission had advised against the new jurisdiction being given to the ordinary court. It decided to emulate other countries by opting for specialist courts, thereby identifying with international trends. According to Brassey; Cameron; Cheadle & Olivier (1987:9), “the ordinary courts had the wrong sort of procedure and evidential rules for the purpose, and litigation before them was too slow and costly.

Labour law had, moreover, grown in volume and complexity, and the bench could no longer be expected to have the requisite expertise in the field”. The implication here was that the complexity of labour law demanded that a separate court be set-up. People abroad had felt that “countries with labour courts have experienced fewer strikes and have developed their labour law to a greater extent”(Brassey et al, 1987:9). They now had the freedom to strike as long as they complied with the Labour Relations Act. An additional important change was the introduction of an industrial court, which is now called the Labour Court.

2.WORKPLACE FORUMS

The CCMA plays an active role in the formation of the workplace forum. In order for the workplace forum to exist, it must satisfy the requirements of section 80 which stipulates that a workplace forum may only be established in a workplace with 100 or more employees. The workplace forum must meet at regular intervals with the employer. At such meetings the employer is under obligation to report on:

(i)“its financial and employment situation;

(ii) its performance since the last report;

(iii) its anticipated performance in the short term;

(iv) its anticipated performance in the long term” (Anderson & van Wyk, 2002: 40).

These forums were introduced through the new Labour Relations Act in order to encourage employee participation in the workplace. According to More (2003:7), there are various forms of employee participation, i.e., direct and indirect participation. Direct participation is task-centred and employees participate in decision-making. Indirect participation occurs when elected employee representatives participate in management decision-making. But More(2003:8) emphasizes that employees and their unions are opposed to workplace forums because they promote joint responsibility in management decision-making, unions traditionally oppose managerial decisions. “The new labour law demands that managers establish workplace forums to promote democracy. But both employees and their unions reject such forums. Unions feel such forums will undermine their role as challengers of management decisions and force them to make joint decisions with management”(More, 2003:12).

Its composition is characterized by employee representatives appointed onto the Board of Directors, Worker’s Committees, Liaisons Committees, which consist of both management and employee representatives, and finally self managed teams which empower staff to make decisions regarding the job at hand.

3.BARGAINING COUNCILS

Powers and Purpose:

They are organizations, registered by the Department of Labour, comprising “one or more registered trade unions and one or more registered employers’ organizations”(Anderson & Van Wyk, 1997:97. According to Finnemore and van Rensburg (2000: 278),membership of a bargaining council is on a voluntary basis. Some of basic requirements for setting up a bargaining council are the following:

(i) The parties to the council must adopt a constitution, which complies with the Labour Relations Act.

(ii) Half the council representatives must be appointed by the employer party and the half by the union parties.

(iii) In order to finance the administration of the council, small levies are paid by employers or employees.

Three of their most important powers and functions is to “conclude and enforce collective agreements concerning wages and working conditions, and also to prevent and resolve labour disputes. They also develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area. In addition to that bargaining councils should :

(i)“Administer and enforce agreements, the latter done by designated agents who are employed by the bargaining council;

(ii) promote and establish training and education schemes;

(iii) establish and administer benefit schemes, such as pension and provident funds, sick pay, holiday pay, unemployment funds;

(iv) deal with requests for exemptions from the agreement” (Finnemore & van Rensburg, 2000:279).

4.COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

Powers and purpose:

The principal institution of the Labour Relations Act (1995) is the C.C.M.A., which is created by statute, overseen and augmented by the Labour Court. It “is an independent body created by statute…One of its functions is to assist employers and employees (over whom it has jurisdiction) to resolve disputes in an expeditious and effective manner, firstly by conciliation and thereafter by arbitration if required to do so by law”(Anderson & van Wyk,2002: 60). The CCMA is not in competition with the Bargaining Council but they have jurisdiction over different areas. According to Anderson and van Wyk (2002:60), the “CCMA is controlled by a governing body on which the state,employers and organized labour have representations all of whom are nominated by the National Economic Development and Labour Council (NEDLAC)”. Although each commissioner’s experience varies, uniform training has taken place to ensure adequate level of skills and competence.

Conciliation allows the parties to resolve matters between them, and whatever was said between them is private and confidential, and cannot be used or quoted against a party in the event of the negotiations failing. “In some instances, the CCMA has exclusive jurisdiction to conciliate a dispute…The CCMA also has 30 days within which to attempt to attempt to resolve the dispute by conciliation or within any extended period to which the parties agree” (Anderson &van Wyk,2002:64).Arbitration under the auspices of the CCMA, includes disputes over dismissals for misconduct or incapacity, constructive dismissals and cases where the employee does not know the reasons for dismissal. “A Commissioner can arbitrate only if a certificate has been issued stating that the dispute remains unresolved, and one of the parties has requested arbitration” (Anderson & van Wyk, 2002:68). A party may not appeal the decision of the Commissioner because it is final and binding. It also covers unfair labour practices. The court intervenes in all labour disputes.

5.LABOUR COURT (composition)

The 1980 reforms brought about an important change which was the introduction of an industrial court. “This court is not a separate court, but is attached to the Department of Manpower, which also appoints its judges. In reality the industrial court is not really a court, but rather a ‘quasi-judicial tribunal’, i.e. a tribunal which exercises quasi-judicial functions in labour law. Thus the newly created industrial court is basically the same as the former industrial tribunal, but with increased jurisdiction” (Kittner et al, 1989:38). This means that although the Labour Court is different from the civil and criminal courts, it does not have an inferior status.

According to Urmilla Bhoola (2002:1), the Labour Court judges are normally appointed from the ranks of specialist labour law practitioners (practicing advocates or attorneys) and in some cases suitably qualified academics. Labour Appeal Court judges must, in addition, be judges of the High Court of South Africa. CCMA commissioners, unlike Labour Court judges do not necessarily have to have legal qualifications.

“The Labour Court consists of a Judge President, a Deputy Judge President and ordinary judges. It has exclusive jurisdiction in respect of all matters resolved for it by the LRA, and its judgments are subject to appeal only to Labour Appeal Court”(Grogan,1999: 263). Officers of the Labour Court include a registrar, who has to be an expert in labour law and administration. The registrar is supposed to be assisted by “one or more Deputy Registrars, and as many other officers of the Labour Court as the administration of justice requires” (Anderson & van Wyk,2002: 61).

5.1Purpose and powers.

Bhoola (2002: 17) states that South Africa has specialist Labour Courts. Whilst the High Court of South Africa still retains concurrent jurisdiction with the Labour Courts in respect of certain issues, e.g., breach of contract, constitutional issues, the Labour Courts generally exercise exclusive jurisdiction over specialist matters. It shares jurisdiction with the High Court in respect of certain fundamental rights protected in the Constitution. The Labour Courts primary functions are: (i) “Adjudicate disputes relating to freedom of association (union- and employer-organisation membership).

(ii) Adjudicate automatically unfair dismissals including dismissals arising out of operation requirements (i.e. redundancy/retrenchment matters) as well as strike disputes.

(iii) CCMA arbitration awards are reviewed by the Labour Court” (Bhoola, 2002: 17).

With regard to the above matters, the Labour Court may issue interdict relief (including urgent relief). According to Grogan (1999:263), in Mondi Paper(A Division of Mondi Ltd) vs Ppwawu (1997), “the employer sought an interdict in the Supreme Court to prevent strikers from engaging in alleged sabotage and intimidation during a picket”.

According to the case the applicant employer was engaged in negotiations with the first respondent union, as a result of which a dispute was declared. In a nutshell, a strike started and the employer alleged that sabotage was taking place. The High Court interdicted certain conduct. The High Courts jurisdiction on return day, and it was ruled that “ section 157 of the LRA 66 of 1995 confers exclusive jurisdiction on the Labour Court in respect of all matters that elsewhere, in terms of the LRA or in terms of any other law are to be determined by the Labour Court”-see Mondi Papers (a Division of Mondi Ltd) vs PPWAWU (1997)10 BLLR 1373(D).

Although the Labour Court is not a Court of Appeal, it can review “the performance or purported performance of any functions provided for in section 35 of the Occupational Health and Safety Act, or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law or any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law”(Grogan, 1999:264). A similar matter was between Metrofile (Pty) Ltd and CCMA, PPWAWU & Others (1999). This was an application in terms of the section for the review and setting aside of the second respondent and certain consequential relief.

According to Bhoola (2002:19), in the Labour and Labour Appeal Courts legal representation is not compulsory but most employers and many employees are usually represented. In the CCMA one is allowed legal representation, except in cases of incapacity or misconduct where the services of a lawyer are in the discretion of the commissioner. Unions, co-employees, or employers’ organizations may represent parties in the Labour Court.

According to Grogan (1999:265), “the Labour Court is given exclusive jurisdiction as a court of instance over any dispute arising under the BCEA”. Disputes arising out of the Employment Equity Act can also be attended to by the Labour Court. The Act gives the “court power, in the case of unfair discrimination against an employee, to order just and equitable compensation (with no limit), punitive damages, an order that a non-designated employee behave like one, the removal of the employer’s name from the register of designated employers, and publication of the order”.

Bhoola (2002:19) states that the Labour Courts generally do not award costs against the other party unless such party has acted frivolously, vexatiously or unreasonably in bringing or conducting the proceedings. This refers to an annoying and irresponsible behaviour on the part of the relevant party.

6.LABOUR APPEAL COURT

According to Grogan (1999:266) “the Labour Appeal Court was established as a court of law and equity and is the final court of appeal in respect of all judgments and orders of the Labour court”. The Labour Court is only a court of law. The jurisdiction of the Supreme Court of Appeal in respect of labour matters has been eliminated. Its judgments are binding on both the Labour Court and the CCMA.

The Labour Court is comprised of the Judge President and the Deputy Judge President, and one other judge which can only be appointed by the Judge President.

7.JURISDICTION

The LRA has divided disputes into two categories, i.e., those which must be arbitrated by the CCMA or a bargaining council, or adjudicated by the Labour Court. The second are those that are not subject to arbitration or adjudication.

Those that are supposed to be adjudicated by the Labour Court are disputes that have to do with : “the application and exercise of association rights, the refusal to admit a party to a bargaining council, strikes, lockouts, breaches of picketing, rules and protest action, strike dismissals, automatically unfair dismissals, dismissals on the grounds of operational requirements, discrimination under the residual unfair labour practice definition” (Grogan,1999:267). The Labour Court also has concurrent jurisdiction with the High Court with regard to an alleged violation of the fundamental constitutional right on the part of the state. It can also deal with an alleged unfair administrative action when “it acts in the capacity of the employer”.

8.CONCLUSION

*Impact on South African Labour Relations:

In 1994 one of the first moves by the new democratically elected government was to establish a legal task team to draft a new Labour Relations Act. After a long consultative process the LRA was formally passed by Parliament at the end of 1996.

For the first time in South African labour history all workers were governed by one industrial relations systems. The new political dispensation in South Africa gave rise to new labour laws. These laws are meant to eliminate malpractices established under the past regime as well as to correct any imbalances under the past regime as well as to correct any imbalances in our labour market. Public service workers, the previously marginalized-farm labourers and domestic workers were also included. “The new Act promoted collective bargaining by providing for organizational rights for unions in the workplace (thereby entrenching in law what many unions struggled to achieve through private agreement: access to employer premises; meeting rights; union subscription facilities)” (Adler & Webster, 1998:2-3)

The parties were now encouraged through the Act to resolve disputes through conciliation and arbitration through the new CCMA. “Its most important innovation was provision for joint decision-making and consultation at shopfloor level between management and workers, through the creation of workplace forums, developed in part from South African and Western European precedents”.(Adler & Webster,1998:2-3). The whole purpose was to minimize industrial strife.

RECOMMENDATIONS

We must move from the premise that South African labour law has improved tremendously since the Wiehahn Commission in 1979. The Commission recommended the removal of discriminatory labour practices. These recommendations were the first steps towards workplace democracy. In the last five or six years the government passed the following labour laws:

(i) Labour Relations Act, 1995;

(ii) Basic Conditions of Employment Act, 1998;

(iii)Employment Equity Act;

(iv) Skills Development Act.

These laws have not achieved much in terms of their specific objectives, although a certain amount of progress has been made in some companies. This is caused by a tendency on the part of some companies to defy these laws. These are my recommendations:

(i)Senior positions of companies must be occupied by qualified people regardless of colour or sex.

(ii) Training of employees must receive more attention from management.

(iii) Employees should have a say when businesses are sold or transferred, because employees may be retrenched by their employer.

(iv) The companies must adapt to the new dispensation because the current workforce is relatively more highly educated and contemporary and sophisticated ways of management are required. Another reason is that unions and their representatives are increasingly involved in management issues.

(v) Employees need a sense of ownership- Together with employees must formulate rules and values to live by, because it ensures workers and their representatives are active partners.

These are but a few things that can be done to change the situation. The problem is that the proper implementation of these laws is not monitored closely, as it should be. Labour Department inspectors should ensure that labour laws are adhered to. Reports submitted

by companies, as required by legislation, are not being verified at company level. Some companies are not reporting the truth, but there is no one to verify that. Maybe it is high time for workers in general to take the issue up with our labour ministry. The state should beef up its capacity to enforce our labour laws. Trade unions must monitor the implementation of the legislation and this will result in the reduction of these problems and more companies will comply with our labour laws. There would be no point of having all these progressive laws if employers can avoid them.

BIBLIOGRAPHY

Adler, A. & Webster, E. 1998. Labour and Popular Struggles in the Global Economy. A paper presented to the seminars 17/11/1998. Columbia University, NYC.

Anderson, F. & van Wyk, J. 2002. Labour Law in Action: A Hands-on Guide to the LRA. Maskew Miller Longman. Cape Town.

Bhoola, U. 2002. National Labour Law Profile. International Observatory of Labour Law. Labour Law Profile New Zealand.htm.

4. Brassey, M.; Cameron, E.; Cheadle, H. & Olivier, M. 1987. The New Labour Law. Juta & Co, Ltd. Kenwyn, 7790.

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