Dates: 18 - 19 August 2016

Venue: Hilton Hotel - Sandton, Johannesburg

WELCOME

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THE ROLE OF SHOP STEWARDS IN THE UNION-

MANAGEMENT RELATIONSHIP

Magate Phala

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SHOPSTEWARDS FORM THE FOUNDATION OF OUR TRADE UNIONS. OUR PRINCIPLE OF WORKERS’ AND DEMOCRACY WILL NOT FUNCTION WITHOUT A TEAM OF COMMITTED, HARD WORKING, DISCIPLINED, MILITANT AND KNOWLEDGEABLE SHOPSTEWARDS

To organize workers and unite them into a

strong and democratic trade union.

To challenge the power of employers through

collective action.

To bargain collectively with employers for a

living wage and decent conditions of work.

To represent workers in their individual

workplaces on all matters of concern for

workers.

To represent workers at industry level and

national level.

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To educate workers and the community at large

in trade unionism.

To fight for workers rights in the community and

country as a whole.

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Trade unionism is a means for workers to

liberate themselves from poverty and social

exclusion. Workers use trade unions as their

representative voice to demand their rights and

improve their living and working conditions. The

formation of trade unions was a reaction against

the mechanisms of pauperisation, notably: low

pay, long working hours, child labour and

generally appalling working conditions. And so

trade unionism has always been about eradicating poverty

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Article 2 Workers and employers, without distinction whatsoever,

shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3 1. Workers' and employers' organisations shall have the

right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

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1996 Constitution :Section 23.

Every worker has the right to; form and join a trade

union; participate in the activities and programmes

of a trade union; and to strike.

Every trade union and every employers'

organisation has the right to; determine its own

administration, programmes and activities; to

organise; and to form and join a federation.

Every trade union, employers' organisation and

employer has the right to engage in collective

bargaining

Section 18 - Everyone has the right to freedom of

association.

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LRA – Section 8: Every trade union and every employers’ organisation has the right-

to determine its own constitution and rules; and to hold elections for its office bearers, officials and representatives;

to plan and organise its administration and lawful activities; to participate in forming a federation of trade unions or a federation of employers organisations; to join a federation of trade unions or a federation of employers organisations, subject to its constitution, and to participate in its lawful activities; and

to affiliate with, and participate in the affairs of, any international workers’ organisation or international employers’ organisation or the International Labour Organisation, and contribute to, or receive financial assistance from, those organisations.

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Trade Union’s Organisational Rights

Section 11 – sufficient representativenes Section 12 – Acces to Workplace Section 13 Stop order facilities or Levies Section 14 – Election of Shopstewards ; 10

member=x1; more than 10 members=x2; 50 members =x2 plus additional one……. Etc

Section 15 – Leave for Trade Union Activities Section 16 – Union Entitlement to relevant

information.

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Section 14(4) - a trade union representative has the right to perform the following functions-

(a) at the request of an employee in the workplace, to assist and represent the employee in grievance and disciplinary proceedings;

(b) to monitor the employer's compliance with the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer;

(c) to report any alleged contravention of the workplace-related provisions of this Act, any law regulating terms and conditions of employment and any collective agreement binding on the employer to-

(i) the employer;

(ii) the representative trade union; and

(iii) any responsible authority or agency; and

(d) to perform any other function agreed to between the representative trade union and the employer.

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Section 185, LRA –

Every employee has the right not to be: (a) unfairly dismissed; and (b) subjected to unfair labour practice

Section 186(2) –

Unfair labour practice includes: The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

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Section 188 Other unfair dismissals - Three Reasons for Fair Dismissal and Fair

Procedure A dismissal that is not automatically unfair, is

unfair if the employer fails to prove a. that the reason for the dismissal is a fair reason – i. related to the employee’s conduct or capacity; or ii. based on the employer’s operating requirements; and that the dismissal was effected in accordance with a fair procedure.

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The purpose of a disciplinary code and procedure is to regulate standards of conduct of employees. The aim of the discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace.

Discipline must be substantively and procedurally fair. Discipline should help employees to correct bad

behaviour rather than punish them. Discipline must be applied: - fairly - consistently (the same procedure for everyone, and the same for everything) - promptly, and - progressively (starting from less strict to getting more strict for the same disciplining).

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Any person considering whether or not the reason for

dismissal is a fair reason or whether or not the dismissal

was effected in accordance with a fair procedure must

take into account any relevant code of good practice

issued in terms of this Act.

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The employer should notify the employee of the allegations using a form and

language that the employee can reasonably understand.

The employee should be allowed the opportunity to state a case in response to

the allegations. The employee should be entitled to a reasonable time to

prepare the response and to the assistance of a trade union representative or

fellow employee. After the enquiry, the employer should communicate the

decision taken, and preferably furnish the employee with written notification of

that decision.

Discipline against a trade union representative or an employee who is an

office-bearer or official of a trade union should not be instituted without first

informing and consulting the trade union.

If the employee is dismissed, the employee should be given the reason for

dismissal and reminded of any rights to refer the matter to a council with

jurisdiction or to the Commission or to any dispute resolution procedures

established in terms of a collective agreement.

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Any person who is determining whether a dismissal for misconduct is unfair should

consider—

(a) Whether or not the employee actually broke a rule or a standard of behaviour for

the workplace? and

(b) if the rule or standard was indeed broken:

(i) was the rule or standard reasonable?

(ii) did the employee know about the rule or standard? or should he/she reasonably

have known about the rule or standard?

(iii) has the employer applied the rule or standard in the same way forall employees?

(iv) was dismissal the appropriate action for breaking the rule or standard?

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As per Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC)

•The importance of the rule that was breached •The basis of the employee’s challenge to the appropriateness of the sanction; •The harm caused by the employee’s conduct; •The effect of dismissal on the employee; •Whether additional training and instruction may result in the employee not repeating the misconduct; •Whether progressive discipline was applied and if not, whether progressive discipline may be effective;

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The employee’s disciplinary record and length of service;

•The presence or absence of dishonesty in the employee’s

conduct;

•Whether the employee admitted the misconduct or

disputed it and; if the employee disputed it, whether the

employee behaved dishonestly or inappropriately in doing

so;

•Whether the misconduct is serious and makes a

continued employment relationship intolerable;

•Whether the employee has applied the sanction of

dismissal consistently in the past and between employees

who participate in the same misconduct.

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1. Unlawful summary dismissal – dismissals in breach

of contractual right to disciplinary procedure and in breach

of right to freedom of expression - Solidarity and Others

v South African Broadcasting Corporation (J1343/16)

[2016] ZALCJHB 273 (26 July 2016)

The LC has authority in terms of sections 77A(e) and

77(3) of the BCEA to grant an order for specific

performance, compelling an employer to honour

contractual obligations to hold a disciplinary hearing and

setting aside dismissals in breach of such obligations as

being invalid. Further, section 157(2) of the LRA gives

the LC concurrent jurisdiction with the High Court to deal

with any threatened violation of any fundamental right

under chapter 2 of the Constitution.

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Principle of Consistency vs Dishonest Conduct

Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (JA78/14) [2016] ZALAC 1; [2016] 5 BLLR 435 (LAC) (3 February 2016) - Dismissals of two employees rendered unfair on the basis of inconsistency. Employees re-instated retrospectively

ABSA Bank Ltd v Naidu & others [2015] 1 BLLR 1 (LAC) - The fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer in the belief that they would not be dismissed.

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Disciplinary Penalty — Plea Agreement with Accomplice

Where the employer had entered into a ‘plea agreement’ with

one of several employees involved in misconduct in return for

his plea of guilty and his testifying against his colleagues, the

Labour Court saw no reason why such an agreement, modelled

on the type recognised by s 204 of the Criminal Procedure Act

51 of 1977, should not be used in the labour law context

(Member of the Executive Council, Department of Health,

Eastern Cape v Public Health & Social Development

Sectoral Bargaining Council & others at 1429).

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Strike — Withholding of Labour In G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of SA & others (at 1832) the Labour Appeal Court found that employees who withheld labour that they were not obliged to perform in terms of their contracts of employment were not participating in an unprotected strike. Similarly, in Imperial Cargo Solutions (Pty) Ltd v SA Transport & Allied Workers Union & others (at 1908) the Labour Court found that, where employees withheld the labour that they had been obliged to perform in terms of a cancelled collective agreement, the withholding of labour did not constitute an unprotected strike.

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The Roles and Responsibilities of different

Stakeholders;

Trade Unions

Management, and

Industrial Relations (IR)

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• Ensure that relationships with Management are characterised by mutual trust, participation, co-operation and commitment

• Ensure that members are strife free, productive and disciplined employees

• Ensure that there is fair and effective maintenance of discipline

• Ensure that there is fair and effective resolution of grievances

• Ensure that there is no or minimised and well managed industrial action

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• Ensure that there is sound human relations in the work place

• Ensure that there is a facilitated drive towards a shared business and work ethics between the organisation and workers

• Ensure that problem situations concerning management and employees are handled objectively and in an orderly manner

• Ensure that there is trust between management and the employees

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• Ensure that Shop Stewards are not victimised

• Ensure that the established channels of communication are respected

• Motivate employees

• Ensure that its structures and members operate and co-operate in a spirit of mutual regard and respect

• Ensure that its structures and members settle disputes orderly and within the framework of applicable agreements

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• Forster relationships with the TU’s and its structures which are based on mutual interest and respect.

• Direct, effective, frank and open Management/ Employees communication

• Promote and ensure sound Industrial and Human Relations

• Ensure trust between Management, Employees and the Trade Unions

• Ensure that all workplace conflict is resolved

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Ensure that Shopstewards are Not Victmised

Ensure fair and effective maintenance of discipline

Ensure fair and effective resolution of grievances

Instil and ensure sound business and work ethics amongst employees

Ensure that production demands and goals are met

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From ILO Perspective - IR is essentially pluralistic in

outlook, in that it covers not only the relations between

employer and employee (the individual relations) but

also the relations between employers and unions and

between them and the State (collective relations). IR

theory, practice and institutions traditionally focus more

on the collective aspect of relations. This is evident from

the central place occupied by labour law, freedom of

association, collective bargaining, the right to strike,

employee involvement practices which involve unions,

trade unionism and so on.

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The Basic Objectives of IR,

To establish mechanisms for communication,

consultation and cooperation in order to resolve

workplace issues at enterprise and industry level,

and to achieve through a tripartite process,

consensus on labour policy at national level.

To avoid and settle disputes and differences

between employers, employees and their

representatives, where possible through

negotiation and dispute settlement mechanisms.

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To provide social protection where needed e.g. in the

areas of social security, safety and health, child labour,

etc.

Establishment of stable and harmonious relations

between employers and employees and their

organizations, and between them and the State.

The efficient production of goods and services and, at

the same time, determination of adequate terms and

conditions of employment, in the interests of the

employer, employees and society as a whole, through a

consensus achieved through negotiation

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THANK YOU

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