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Employment Relations (South Africa) Cheat Sheet (DRAFT) by

The study of the employment relationship and the complex relationship between employers, employees, trade unions, employer organizations and the state.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Fundam­entals of Employment Relations

- Sees the organi­zation as an alliance of diverse people with diverse object­ives, interests and values.
- Accepts trade unions as a part of the labour scene & work with management & employees to resolv­e/limit disputes.
- Disputes are dealt with through collective bargaining
- Acknow­ledges that conflict puts organi­zation in a permanent state of dynamic tension.
- Views organi­zation as an integrated group of people with connected values interests and purpose.
- loyal employee structure - unreal­istic because employees can't be completely loyal
- discou­rages trade union partic­ipation
- encourages unity and harmony in the workplace.
Radical (Marxist)
- Assumes that workers are exploited for the sake of capitalism and therefore emphasis is placed on class struggle.
- Conflict is always rooted at a macro level and is sociop­oli­tical & economic
- Trade unions are viewed as an unavoi­dable response to capita­lism, which enhances the industrial power of the working class & form part of a political process to change the nature of the socioe­conomic and political systems of society.


Societal Corpor­atism
- Is known as an extension of pluralism & referred to as tripartite coordi­nation & cooper­ation.
- Industry role-p­layers contribute their knowledge to government for develo­pment
- Interd­epe­ndence between all three parties of the Tripartite relati­onship is acknow­ledged.
State Corpor­atism
- State imposes its will on labour movement
- Closer to unitarist approach than pluralist
- NEDLAC (National Economic Develo­pment & Labour Council)
- Conflict between business and labour is seen as undesi­rable & the legitimacy of trade unions are questi­oned.

Partic­ipants in the Tripartite Relati­onship

- Repres­ent­ation of employers, also repres­ented by employer organi­zatons
- must see that things are done in the right way to realize objectives of the organi­zation
- workers sell/hire out their labour potential to the employing party to perform specific tasks
- repres­ented by employee organi­zations (trade unions) which may be members of umbrella trade union federa­tions such as NACTU & COSATU
The State
Government plays role of both master & servant of the two primary partic­ipants (employers and employees)
MASTER - makes laws to ensure that Employment relations is practiced in a way that does not disrupt general order of society. Plays a role through enforc­ement, includes Department of Labour, the CCMA & the Labour Court
SERVANT - helps both primary parties conduct their relati­onship in an orderly manner.
While these are the most actively and directly involved in the employment relations system, the Tripartite Relati­onship has been criticized for being too narrow.

Additional Partic­ipants - Pentagonal Relati­onship

Organi­zations must take note of what their compet­itors are doing so that they adapt and innovate to survive. Compet­itors constantly observe and compare each other
Whilst the Pentagonal approach opened up room to include role-p­layers, it did not take into consid­eration that there are more partic­ipants that influence the employment relations system

The Multip­artite Perspe­ctive

- seen as the best as it acknow­ledges the interd­epe­ndent relati­onships that organi­sations have with employees, suppliers, regula­tors, customers and the commun­ities they operate in.
- recognizes that the State is a major employer in South Africa and that unemployed people and those are part of the informal sector play a signif­icant role in employment relations.
- gives a more realistic and holistic view of employment relations in South Africa whilst acknow­ledging every single stakeh­older, regardless of how small their role or contri­butions may be.
- also recognizes the comple­xities in the meanings of Employers, Employees, the State, Compet­itors and Customers far more than the Tripartite system ever could.

Employer Organi­zations

A formal, voluntary grouping of employers set up to advise, defend or represent the interest of affili­ates, not only in their dealings with organized labour but also to lobby & influence the State or other relevant organi­zations
All activities in relation to relati­onship with employee trade union, such as settlement of disputes & promotion of legisl­ative measures.

Sectoral Employer's Organi­zations

- can operate nation­ally, depending on the type of industry
- may form part of Bargaining Councils through which collective agreements are published through Government Gazette & then become delegated legisl­ation
- employer is bound by terms, conditions or collective agreements which have been entered into upon joining employer organi­zations

BUSA - Business Unity of South Africa

- Created 11 October 2003 & replaced Business South Africa (BSA) & Black Business Council (BBC)
- Represents business in all sectors of economic activity in South Africa
- Current member­ship: 49 business associ­ations & employer organi­zations
1. Achieving a deraci­alized, vibrant, diverse & globally compet­itive economy
2. Boosting enterprise develo­pment & facili­tating the transition of informal businesses into the formal economy
3. Creating a predic­table, certain & enabling regulatory enviro­nment
4. Ensuring afford­able, reliable & sustai­nable energy & infras­tru­cture to meet current and future needs
5. Contri­buting to a productive and stable labour structure
6. Supporting a progre­ssive tax system that supports inclusive growth objectives
7. Committing to trade policies that supports South Africa's develo­pmental goals & promote inclusive growth
8. Partnering with government to improve education & skills develo­pment for current & future work
9. Contri­buting to the creation of a compre­hensive social security system at a pace that is afford­able, sustai­nable & fiscally respon­sible
10. Cooper­ating with national business organi­zations & regional & intern­ational business groupings to advocate for regional & economic integr­ation & improved local policies and conditions for businesses

Employee Parties

Definition of Employee (according to Section 213 of LRA)
a) any person, excluding an Indepe­ndent Contra­ctor, who works for another person or the State and who receives or is entitled to receive any remune­ration
b) any person who in any manner assists in carrying out or conducting the business of an employer
- Object is the rendering of personal work-r­elated services between employee party & employer party
- The employee must render the work-r­elated service at the behest of the employer party
- The employer party may decide whether to have the particular employee render the work-r­elated services
- The employee is obliged to obey lawful, reasonable instru­ctions regarding the work to be done and the manner in which it is so done
- Relati­onship terminates on completion of the agreed period and by death of employee
Indepe­ndent Contra­ctors
- Object is the provision of a specified work-r­elated service or a certain specified work-r­elated result or outcome
- The indepe­ndent contractor is not obliged to perform the work related to the service or result­/ou­tcome person­ally, unless otherwise agreed
- The indepe­ndent contractor is not obliged to obey any instru­ctions in terms of how the work is to be done or the result that is to be attained
- Bound to perform specified work or deliver specified results within a specified or reasonable time
- Relati­onship not terminated by death of contractor but is terminated on completion of specified work/d­eli­ver­y/a­tta­inment of specified outcom­e/r­esult

Trade Unions

A trade union is regarded as a continuing permanent organi­sation created by workers to protect themselves at their work, to improve the conditions of their work through collective bargai­ning, to seek to better the conditions of their lives, and to provide a means of expression for the workers’ view on matters of society.
- Trade Unions are founded on the socioc­ultural value of collec­tivism, often referred to as solida­rity.
Trends that impact on the Trade Union Movement Intern­ati­onally
- Increased pace & magnitude of global­isation
- Growth in forms & use of more insecure types of employment
- Growth of small businesses rather than larger organi­zations
- Techno­logical change presenting challenges & opport­unities
- Change in skills compos­ition of the workforce, partly related to sectoral shifts in economies
- Changes in demogr­aphics of workforces
- Lack of employment in the formal, with growth in informal sector work & employment
Types of Trade Unions
Occupa­tional Unions
organize and recruit their members from employees in certain occupa­tions - in accordance with their skills
Examples: craft unions, promotion unions, blue-c­ollar workers unions, white-­collar workers unions
Registered Examples: Electr­onic, Allied & Metal Workers Union of South Africa, Meat & Allied Workers Unions, Profes­sional Educators Union, National Profes­sional Teachers' Associ­ation of South Africa
Industrial Unions
Specific industries or groups of indust­ries, and members typically work in that industry, irresp­ective of trade or profession
Examples: miners (NUM, AMCU); steelw­orkers (the National Union of Metal Workers of South Africa); autowo­rkers (South African Transport & Allied Workers' Union)
General Unions
Do not restrict membership in terms of skills or industry, rather they function on the principle commun­ality of workers' interests. Working class vs. owner's class
Examples: National General Worker's Union
Methods Trade Unions use
Industrial action, collective bargai­ning, service & benefit schemes and national & intern­ational cooper­ation, affili­ation and repres­ent­ation

The Shop Steward

Trade Union repres­ent­atives put in the workplace to represent workers and their interests. They are regulated by the LRA and trade unions stipulate their roles and respon­sib­ili­ties.
Stipul­ations for Shop Stewards
1. May at times be respon­sible to the executive committee for their actions & shall always conduct themselves in a manner worthy of a union repres­ent­ative.
2. Promote their best possible relati­onship & good cooper­ation between members in their sections & sectional heads
3. Confine themselves to the affairs of their section & should not discuss matters concerning policy or principles of the union with management or any of its repres­ent­atives. They should famili­arize themselves with the principles & policy of their union to properly inform their members
4. Grieva­nces, complaints & sugges­tions for improving working conditions in their sections should be reported to the shop stewards by branch commit­tee­/or­dinary members. Shop stewards examine these complaints to establish whether they're well-f­ounded. These should be reported to sectional heads if there are grounds for dissat­isf­action so that a solution can be found.
5. Shop stewards & sectional heads should give immediate notice for their intention to call in the assistance of the trade union should they not be able to arrive at a mutually beneficial solution. They must present all proposals for improved working conditions which they received from section members.
6. Shop stewards are highly sensitive to the branch committee & the local officer
7. Must attend all branch committee meetings of their branch so that they can reply directly to any questions which may be raised in connection with the handling of any matter entrusted with them.
8. Present reports (written) every month to their branch committee on all matters entrusted to & dealt with by them

Major Trade Union Federa­tions

Congress of South African Trade Unions (COSATU) - 21 Affiliates
Core Principles
- intern­ational worker solidarity
- worker control
- paid-up membership
- "one industry, one union"
Involved in number of ventures aimed at promoting black business & supporting the federation finana­cially
Federa­tions of Unions of South Africa (FEDUSA) - 20 Affiliates
Core Principles
- equal opport­unity & treatment for all men and women
- Freedom of Associ­ation & the right to organize
- trade union democracy
- develo­pment for all
Believes their relati­onship with the Intern­ational Labour Organi­zation (ILO) is important
National Council of Trade Unions (NACTU) - 22 Affiliates
Core Principles
- non-ra­cialism
- worker control at all levels & structures of the unions
- leadership by working class
Has become involved in investment ventures with the aim of empowering the masses econom­ically by increasing African control over investment decisions
All 3 trade unions have repres­ent­ation on the National Economic Develo­pment & Labour Council (NEDLAC)

The Contract of Employment

Requir­ements for a Valid Employment Contract
- The parties must have contra­ctual capacity
- Perfor­mance of the contract must be possible
- The contract may not be contra bonos mores (against public moral values)
- The contract must comply with any formal­ities that may be prescribed
- The parties must reach consensus on the essential terms of the engagement
How to Prove an Employment Relati­onship
- the manner in which the presumed employee works is subject to the contro­l/d­ire­ction of the presumed employer
- the person's hours of work are subject to the control or direction of another person
- the person works for the organi­zation & forms part of that organi­zation
- the person has worked for the other person for an average of at least 40 hours per month over a period of 3 months
- the person is econom­ically dependent upon the person for whom he/she works or renders a service
- the person is provided with tools & equipment by the other person
- the person works/­renders a service to only one person

The Labour Relations Act 66 of 1995

Section 23 of the Consti­tution deals with labour relations
1) Everyone has the right to fair labour practice
2) Every worker has the right to form & join a trade union, to partic­ipate in the activities & programmes of a trade union and to strike
3) Every employer has the right to form & join employer organi­zations and to partic­ipate in the activities & programmes of an employers' organi­zation
4) Every trade union & every employers' organi­zation has the right to determine its own admini­str­ation, programmes & activi­ties, to organize and form & join federa­tions
5) Every trade union, employer's organi­zation and employer has the right to engage in collective bargai­ning, National Legisl­ation may be enacted to regulate collective bargai­ning. To the extent that legisl­ation may limit a right in this chapter, the limitation must comply with Section 36(1)
6) National Legisl­ation may recognize union security arrang­ements contained in collective agreem­ents. To the extent that the legisl­ation may limit a right in this Chapter, the limitation must comply with Section 36(1)
Protection of Employees & Persons seeking Employment - Section 4 of LRA
No person may discri­minate against an employee by any of the following actions:
1) Force an employee or a person seeking employment not to be or to become a member of a trade union/­wor­kplace forum or give up their membership of a trade union/­wor­kplace forum
2) Prevent an employee or a person seeking employment from exercising any right conferred by the Act or from partic­ipating in any procee­dings in terms of its provisions
3) Prejudice an employee or a person seeking employee for
- membership of a trade union/­wor­kplace forum
- partic­ipating in forming a trade union or federation of trade unions­/wo­rkplace forums
- partic­ipating in the lawful activities of a trade union, federation of trade unions­/wo­rkplace forums
- refusal or failure to do something that an employer may not lawfully permit or require an employee to do
- having disclosed, disclosing or wanting to disclose inform­ation that the employee lawfully entitled or required to give to another person
- exercising any right conferred by the LRA & partic­ipating in any procee­dings in terms of this act.
4) Give advantage or promise to give advantage to an employee or a person seeking employment for not partic­ipating in any procee­dings in terms of and exercising any right conferred by the LRA. However, nothing precludes the parties to a dispute from concluding an agreement to settle that dispute
Protection of Employer's Rights - Section 7 of LRA
No person may do or threaten to do any of the following
1) Discri­minate against an employer for exercising any right conferred by the LRA
2) Force an employer to be or to become a member of an employer organi­zation or to give up membership of an employer's organi­zation
3) Prejudice an employer for
- having been, being or wanting to be a member of an employers' organi­zation
- having taken part, taking part or wanting to take part in forming an employer's organi­zation or a federation of employers' organi­zations
- having engaged, engaging or wanting to engage in the lawful activities of an employers' organi­zation or a federation of employers' organi­zations
- having disclosed, disclosing or wanting to disclose inform­ation that the employer is lawfully entitled or required to give to another person
- having exercised, exercising or wanting to exercise any right conferred by the Act
- having taken part, taking part or wanting to take part in any procee­dings in terms of the LRA
- give advantage or promise to give advantage to an employer for not exercising any right