Chapter 6 - Labour Law
A dispute is any serious disagreement between two parties. For example, there could be a dispute over a problem of discipline in the workplace, over complaints (also called 'grievances') which employees have, or over dismissals. There can also be disputes over wages and other working conditions.
So, there are different kinds of disputes. You can have a dispute about making new rights, for example employees wanting to get paid higher wages or the employer bringing in a new pension or provident fund scheme which employees must belong to. These disputes are also called disputes of interest. These disputes are often handled by a union and are the subject of negotiation and possible industrial action (strike action) where agreement cannot be reached. The Labour Relations Act describes structures and processes which can be used to resolve disputes of interest. The Act also governs the procedures for taking industrial action.
There are also disputes over rights which already exist in a contract, a law, an agreement or in custom and practice. These kinds of disputes are called disputes of right. They usually involve an unfair dismissal (for example retrenching employees without consulting with the employees) or unfair discrimination or an unfair labour practice (such as ‘removal of benefits’). The Labour Relations Act sets out how disputes over rights in the workplace must be handled and the Employment Equity Act sets out how discrimination will be dealt with in the workplace.
A dispute of right can also happen when an employer doesn't obey a term or condition of a wage regulating measure, for example, the Basic Conditions of Employment Act, a Bargaining Council Agreement (or other collective agreement), Wage Determination, sectoral determination, or a Ministerial exemption. An example of a dispute of right is where an employer doesn't pay an employee the correct leave pay or where an employee is dismissed without the employer following a fair procedure. Enforcement and disputes about terms and conditions of employment that fall under these laws should be dealt with by the relevant Bargaining Council or the Department of Labour.
The Labour Relations Act (LRA) sets out structures and processes which can be used to resolve disputes of interest. The outcome of disputes of interest will depend on the relative strength of employees and employers. Each party may use different strategies to win what they want.
Employees can take industrial action over disputes of interest, like strikes, work stoppages and go-slows once they have complied with prescribed dispute procedures. Employees cannot strike over disputes of rights under the LRA (e.g. unfair labour practices and unfair dismissals).Disputes of right are referred to arbitration at the CCMA or the Bargaining Council.
The LRA governs the procedures that must be followed before industrial action can be taken by employees (strikes) or by the employer (lock outs).
Where there is no bargaining council:
If it is a dispute about enforcing a right under the Basic Conditions of Employment Act (BCEA), , a Sectoral Determination or a Wage Determination or the Occupational Health and Safety Act, then a complaint can be sent to the Department of Labour. The complaint can include a request for a ‘Compliance order’ which is issued by an inspector of the Department. See Enforcement of the BCEA.
If it is a matter of enforcing a right or a dispute of rights under the Labour Relations Act (LRA) (for example, an alleged unfair dismissal) where no bargaining council exists in that sector, then the matter should be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If the dispute concerns a dismissal, it must be referred within 30 days of the date of dismissal. If it concerns an Unfair Labour Practice, then the dispute must be referred within 90 days of the alleged unfair practice occurring.
If conciliation fails then refer the dispute to arbitration within 30 days of receiving the certificate of failed conciliation from the CCMA. The CCMA will hear disputes over a BCEA issue if it is related to a matter which is being arbitrated by the CCMA (for example, a claim of unfair dismissal is before the CCMA together with a claim for unpaid leave pay).
Where there is a bargaining council:
If it is a dispute of rights under a Bargaining Council Agreement then the problem should be referred to the Bargaining Council for enforcement or conciliation. If conciliation fails then refer the dispute to arbitration within 30 days of receiving the certificate of failed conciliation from the Bargaining Council.