Union Versus Employers In The Workplace Law Employment Essay

Published Date: 02 Nov 2017

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Labour Relations

Queen Charlene Swartz – Student no: 21110159

Contents 2

Question 1 2

Organisational rights awarded to unions in terms of Labour Relations Act (LRA) 1995 2

Question 2 3

Union versus Employers in the workplace 3

Question 3 5

Procedural and Substantive Fairness 5

Question 4 8

The employees right to strike 8

Question 5 9

Contract of Employment 9

List of References 10

Question 1

Organisational rights awarded to unions in terms of Labour Relations Act (LRA) 1995

Trade union representativeness - the LRA allows a registered trade union or a to represent employees

Trade union access to workplace - employers allow unions to enter an their premises to recruit or talk to members

Deduction of trade union subscriptions or levies – trade unions instruct employers to make e deductions of and pay over union membership fees from their employees.

Trade union representatives – employers should allow elections for trade union elections at the workplace

Leave for trade union activities – employers should allow trade union representatives to take reasonable leave to attend trade union activities

Disclosure of information

Restricted rights in domestic sectors

Rights to establish thresholds of representativeness

Certain organisational rights for trade union party to council

Organisational rights in collective bargaining

Exercise of rights conferred by this part

Disputes about organisational rights

Question 2

Union versus Employers in the workplace

A trade union is an organization whose membership consists of workers and union leaders. They are united to protect and promote their common interests. The main purposes of a trade union are to:

Negotiate wages and work conditions

Regulate relations between its members and their employers

To do collective bargaining

Raise demands on behalf of its members

Help settle grievances

Trade unions

The role played by unions is clearly set out in their objectives. And by accomplishing these goals they fulfill their objectives.

Economic Objective

Maintaining and improving the economic status is the most important goal of any union. This is done by increasing their bargaining power to gain economic concession in the forms of increased wages or improved benefits from the employer.

Job Security

Unions aim to maintain job security for their member’s as much as economic benefits. Thus unions may waive increased economic benefits for some members so that all members may keep their jobs. They are also involved in preventing retrenchments and dismissal’s.

Social Welfare

Unions ensure the welfare of their members in respect of sickness, accident, death and pension benefits. Unions take it upon themselves to ensure the employers establish pension and medical aid where union representatives act as trustees. The union’s welfare may even extend to areas such as housing and skills development/education

Job Regulation

Unions aim to influence as much as possible of their working lives. This joint agreements on aspects such as overtime, working hours, work on public holidays, vacation, sick, compassionate leave and notice periods are regarded as basic to any union and management agreement.

Individual Development

Through this unions aim to promote the moral, physical and intellectual wellbeing of each member. The union may also offer practical lessons for education and training.

Socio-political Aims

It is very difficult for trade unions to achieve political objectives because they are various contributing factors.

Employers Organization

An organisation of employers generally from the same industry working together for the interests of all member companies on tasks like trade union negotiation, sharing information and advice, and approaching other companies.

The function of an employers association

To represent the collective interests of employees with regard to unions

Engage in collective bargaining with unions meanwhile making sure there’s wages uniformity, conditions of employment and procedures.

Represent the interests of members with Government and other agencies.

Act as advisors to employers in the industry

To establish comprehensive benefit and training funds, which individual employers and in particular smaller employers will not be able to provide for the employees?

Question 3

Procedural and Substantive Fairness

Employers who have valid substantive reasons for a dismissal must still follow a fair procedure before they decide to dismiss and employee. Procedural fairness is viewed as the right of the worker in respect of the real procedure to be followed during the process of discipline or dismissal.

Procedural Fairness

                        

The following procedures for procedural fairness should be followed:

An employer must inform the employee of allegations in an understandable manner

Ample time should be given to an employee to respond to allegations

Employees have a right to state their case

An employee has the right to representation by either a co-worker or shop steward during the hearing

The sanction must be communicated in writing to the employee

The reasons for dismissal must be clear and understandable to the employee

They employer must keep records of all disciplinary issues of employees and their sanctions for future reference

Checklist for Procedural fairness:

Did the employee receive an original complaint in writing?

Has a thorough investigation take place and are all aspects of investigation recorded in writing.

Ensure statement is taken of all including witnesses.

A written notice of the disciplinary hearing been sent out to the accused.

Does the accused have enough time to prepare and get a representative?

Is the charge clear to the accused?

Does the accused know of their rights?

Does the accused have copies of all the statements presented during the hearing?

Is the chairperson independent?

The accused has a right to plead to the charges.

The complainant should have a fair chance to present his/her case and witnesses.

Accused has the right to interrogate witnesses.

Accused presents evidence in his defence.

Accused calls his witnesses to testify and complainant is given opportunity to interrogate accused's witnesses.

Chairperson adjourns hearing for to have minutes typed up.

Accused is immediately handed a copy of the minutes.

Chairperson considers whether a fair procedure has been followed.

Chairperson decides on guilt or innocence based on the evidence presented by both sides and on the balance of probability – which story is more likely to be true? That of the complainant or that of the accused? That is the basis on which guilt or innocence is decided. In weighing up the balance of probability, the previous disciplinary record of the accused, his personal circumstances, his previous work record, mitigating circumstances etc. are all EXCLUDED from the picture – these aspects are considered only when deciding on a suitable and fair sanction. The decision on guilt or innocence is decided only on the basis of evidence presented and in terms of the balance of probability.

Chairperson reconvenes the hearing.

Chairperson advises accused of guilty verdict. If not guilty, this is confirmed in writing to the accused and the matter is closed. If guilty, then :

Chairperson asks accused if he/she has anything to add in mitigation of sentence.

Chairperson adjourns meeting again to consider any mitigating facts now added.

Chairperson considers and decides on a fair sanction.

Chairperson reconvenes hearing and delivers the sanction.

Accused has the right to appeal against the verdict

Substantive Fairness

Substantive Fairness – Misconduct – the question to ask yourself would be "Does the crime fit the sanction"?

Was a company rule, or policy, or behavioural standard broken?

If so, was the employee aware that they were transgressing a rule

Has the employer been consistent in applying the rules?

Does the dismissal fit the crime?

In similar cases, what sanction was applied?

Take the accused's personal circumstances into consideration.

Consider also the circumstances surrounding the breach of the rule.

Consider the nature of the job.

Would the sanction now to be imposed be consistent with previous similar cases?

Substantive Fairness - Incapacity – Poor Work Performance.

Examples: incompetence – lack of skill or knowledge; insufficiently qualified or experienced. Incompatibility – bad attitude; carelessness; doesn't "fit in." inaccuracies – incomplete work; poor social skills; failure to comply with or failure to reach reasonable and attainable standards of quality and output.

 

Deliberate poor performance as a means of revenge against the employer for whatever reason is misconduct and not poor performance.

 

Was there a material breach of specified work standards?

If so, was the accused aware of the required standard or could he reasonably be expected to have been aware of the standard?

Was the breached standard a reasonable and attainable standard?

Was the required standard legitimate and fair?

Has the standard always been consistently applied?

What is the degree of sub-standard performance? Minor? Major? Serious? Unacceptable?

What damage and what degree of damage (loss) has there been to the employer?

What opportunity has been given to the employee to improve?

What are the prospects of acceptable improvement in the future?

Consider training, demotion or transfer before dismissing.

Question 4

The employees right to strike

Employees and trade unions in most cases only resort to strikes after all channels have been explored in an effort to reach an agreement and the negotiations still deadlocked. This is usually the last resort to persuade employers to revise their offers for an agreement to be reached.

On the other hand employers may lockout or dismiss striking employees. Both the employee and employers suffer losses, however the employee suffers the most in the event of a dismissal. Employers merely resort to this type of action because they cannot meet the demands of employees. They use lockouts to pressurize employees to go back to work. However dismissals are not recommended as it may disturb the power balance between the parties.

Question 5

Contract of Employment

A contract of employment comes into effect once the employee agrees to work for the employer. This will include the type of work the employee will be doing and the remuneration the employer will pay the employee. The contract may be written, verbal or even an understanding. Even if a written or verbal contract has not been entered into, the mere fact that you are working for someone stipules as a contract and remuneration is required. And a common rate for similar work is paid. A contract that has an ending date is called a Fixed-term contract and a contract without an end date is permanent contract.

Once a contract is entered into there are certain rights and duties under the common law for both parties.

The common law rights of the employer include the following:

To pay the employee

To provide safe and healthy working conditions

To provide work for the employee

Not to make the employee do work junior to the status for which he was employed

Not to contract the employee’s services to another employer without the employee’s consent

In turn the employee will:

Perform his/her work faithfully and diligently

Obey reasonable orders given to him/her in the normal course of employment

Not deal dishonestly with the property of the employer

Not compete in his/;her private capacity with the business of the employer

The duty of the one party constitutes the right of the other party.