The Labour Relations Act 66 of 1995 in section 145 and the Arbitration Act 42 of 1965 in section 33 uses wording very similar to one another to specifically enable the labour court to review CCMA and private arbitration awards respectively. As a result, labour arbitration award reviews are regarded as part of the family of special statutory reviews; the implication of such a classification being that the situation specific statutory provision(s) and the jurisprudential principles developed thereunder are applicable rather than those applicable to reviews in general. When the common purpose of the review procedure is then read with the legislature’s objective of quickly and finally resolving labour disputes at arbitration level as well as the limited grounds for review as provided for in the LRA and the AA, indications are that the labour courts’ review powers should be restrictively interpreted. However, because the making of CCMA arbitration awards also constitutes administrative action, the review thereof is also influenced by the constitutional right to just administrative action and reasonableness in particular. This does however not mean that applicants on review can rely directly on section 33 of the Final Constitution or on the broader grounds of section 6 of the PAJA to review CCMA arbitration awards on the basis of unreasonableness. Section 145 of the LRA constitutes administrative action legislation within the specialised labour law sphere and reasonableness is not a ground mentioned therein. A constitutionally consistent interpretation of section 145 however has the effect that reasonableness suffuses the statutory defined grounds for review; a state of affairs that does not threaten the restrictive scope of CCMA arbitration award reviews. In terms thereof, courts on review must establish whether the decision, alleged to have been reached by the commissioner as a result of the occurrence of one or more of the section 145 grounds for review, is one that a reasonable decision-maker could not reach. This interpretation accords far better with the legislature’s specific objectives pertaining to labour arbitration award reviews and the permissible range of reasonableness further ensures that awards are not easily interfered with on review. When a court is then called upon to determine whether or not a decision is reviewable in terms of section 145, it is entitled to have regard to both the award and the record of the proceedings. If, after such scrutiny, the court is of the opinion that the decision was arrived at as a result of the occurrence of a defect as contemplated by section 145 of the LRA, the decision should be reviewed and set aside irrespective of the fact that the outcome can be sustained by other reasons also identifiable from the record; the focus of review always being on the commissioner’s process of reasoning and the way in which he arrived at his findings rather than the outcome of the process. A court should however be mindful of the fact that erroneous reasons for findings per se are not reviewable grounds, but at best serve as evidence of a reviewable ground that will in conjunction with other considerations have to be sufficiently compelling to justify an inference that the decision is unreasonable. In the case of jurisdictional reviews, the reasonableness standard is also applicable because the focus is on the commissioner’s subjective reasons for his findings rather than the jurisdictional fact’s objective existence. A court on review can accordingly set aside a decision following upon the non-observance of a jurisdictional fact if the commissioner, in deciding that the jurisdictional fact existed, committed one or more of the section 145 grounds for review. In the case of private arbitration awards, applicants seeking a review must do so on the grounds recognised in section 33 of the AA and reasonableness is not one of them. This is however not the only reason why these awards are also not subject to the scrutiny of the reasonableness test on review. The other reason relates to the fact that the issuing of private arbitration awards does not constitute administrative action. The disputing parties can also not by agreement incorporate the reasonableness standard into private arbitration award reviews conducted by the labour court. Such parties are however entitled to establish a private appeal or private review body in their arbitration agreement, clothing it with the powers that they wish to confer upon it, including the ability to review an award subject to the reasonableness standard. / Abstract

LL.M. / Please refer to full text to view abstract

The objectives of this study were to first identify the decision-making bodies structures in the Buffalo City Municipality. Secondly, to assess compositions, powers and functions of such identified bodies or structures. The field study was limited to the administrative jurisdictions of the Buffalo City Municipality; however, the findings and recommendations were applicable to all municipalities in South Africa with the same or similar decision-making like the Buffalo City Municipality. In order to achieve the research objectives, a review of the relevant literature was done. It began by first looking at the constitutional and other legislative provisions establishing the Municipal government system or concept. The literature review looked at the powers and functions given to municipal governments by such constitutional provisions and how effective are such powers exercised. The literature further highlighted the role of trade unions participation and civil society groups in the smooth and effective administration of the municipality and in making the Integrated Development Planning a successful one. The data collection was done by means of questionnaire, focus group discussions complimented by face-to-face interviews. Forty respondents were sampled from six different trade unions and top municipal management. The data collected were analysed thematically with the use of frequency tables, pie charts and histograms. The findings of the study showed among other things that, the highest decision-making body in the municipality is the municipal council supported by various committees, boards and directorates. All the legislative and executive powers are vested in the municipal council. Again, it became known that, the municipal workers unions participate effectively in labour related issues whereas the non-municipal workers unions participate poorly in all consultative processes. In conclusion, there is the urgent need to bring all stakeholders including trade unions in the municipality during decision-making processes in order promote sustainable development in the municipality.

The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.

Thesis (M.Law) -- University of Limpopo, 2007 / Refer to document

No abstract available. / Thesis (LL.M.)-University of Natal, Durban,1985.

The thesis examines the Namibian labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. It describes the legal provisions that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system, which is given recognition in national labour legislation, and in a number of international labour standards and regional labour instruments. It argues for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The study examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Namibia and South Africa’s obligation to provide ADR systems that respond to the needs of the labour relations community. It is argued that ratifying particular ILO conventions creates obligations to comply with their provisions, and to apply them in national legislation and in practice. It is further argued that by having ratified those international labour standards that provide for ADR, Namibia assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is credible and trusted by disputants and the general public. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The focus of the comparison is on whether the South African ADR system can inform Namibia’s application of its newly adopted ADR system. South Africa has a labour dispute resolution system that has influenced Namibian labour law, prompting Namibia to borrow its ADR system from South Africa’s advanced Commission for Conciliation Mediation and Arbitration (CCMA). In this sense, it is submitted that there are fundamental similarities and differences in the two respective systems. Ideally, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Labour Court. In terms of implementation, it is argued that despite the international obligation and commitment to provide and make available free and expeditious ADR services, there are gaps that exist between the legal framework regulating the ADR system and the application thereof in practice, making the attainment of effective and efficient labour dispute resolution difficult. Disputes should be resolved as quickly and informally as possible, with little or no procedural technicalities, and without allowing them to drag on indefinitely, offering immediate solutions instead. This is far from the reality of the situation. In contrast, the study found that although the Labour Act, 2007 and the South African Labour Relations Act (LRA) have brought statutory dispute resolution within the reach of the ordinary worker, these Acts may have compounded the problems relating to dispute resolution in the respective countries. The statutes in question have created sophisticated systems of dispute resolution in which most role players are seen as failing to operate as a result of the complex and technical processes of dealing with disputes. For this reason, the author proposes several remedial interventions that look to the future and the continued provision of fast, effective and user-friendly ADR services. Solving these problems and making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.

The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012

Jurisdiction is the power or competence of a Court to hear and determine an issue between parties, as well as the power to compel the parties to give effect to a judgment. The approach of a CCMA commissioner faced with a jurisdictional challenge is therefore an important issue that requires legal certainty. Unfortunately, our case law has not been uniform with regard to the various issues surrounding jurisdiction of the CCMA, for example: what facts need to be established in order for the CCMA to have jurisdiction and at what stage of the process should a commissioner deal with the issue of jurisdiction. The purpose of this treatise is to consider the various approaches of our courts to the issue of the jurisdiction of the CCMA and to determine what approach is practically best suited for CCMA commissioners when the issue of jurisdiction is in dispute. The research methodology is based on the various approaches of our courts to the jurisdiction of the CCMA as set out in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC). The more practical “third” approach as proposed by van Niekerk J, in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC), has been favoured by the Labour Court and the CCMA following the judgment. The correct approach of a commissioner when dealing with specific jurisdictional facts such as condonation and the jurisdiction of a bargaining council will further be considered. However, the predicament that commissioners face is that the Labour Appeal Court’s approach to jurisdiction is in conflict with that of the Labour Court’s approach. In conclusion, it is submitted that the Labour Appeal Court must pronounce on the issue of jurisdiction, taking into consideration the approach of the Labour Court as to create certainty regarding the correct approach of a commissioner when faced with a jurisdictional challenge.