Thesis (doctoral)--Universität, Konstanz, 2006. / Includes bibliographical references (p. [225]-267).

The highly competitive environment in which companies functions prompts the need to review their operations which may include reconsideration of the manning levels, and or changing terms and conditions of employment in order to be able to survive and prosper economically. The difficulty arises when the employers have to respond to the challenges. By law the employers are legally prohibited from unilaterally effecting the changes to the terms and conditions of employment. Furthermore, changing terms and conditions of employment is dealt with through collective bargaining and as such, the dismissal is outlawed as a legitimate instrument to coerce the employees to concede to the proposals. So the employers have to obtain an agreement or consent with the affected employees. In terms of the 1956 LRA the employer could justifiably terminate the contract of employment within the context of collective bargaining. For the employer to avoid offending the lock out provisions in terms of the 1956 LRA, the lock-out dismissal had to be effected in order to achieve a specific purpose, and it had to be conditional. Unlike its predecessor, the 1995 Labour Relations Act introduced section 187(1)(c) which renders the so-called lock-out dismissal by an employer, within the context of collective bargaining, automatically unfair. Section 187(1)(c) categorises a dismissal as automatically unfair, if the reason is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. The employers are however permitted in terms of the 1995 LRA, to dismiss the employees based on operational grounds, as long as the requisite process has been adhered to. The employers need to restructure their operations in order to ensure that terms and conditions of employment are responsive to operational needs. Where the employees’ terms and conditions of employment are not in line with the company operational requirements, the need to terminate the employment contracts of the employees may arise. The employers are within their right to terminate the service of the employees who refuse to accept changes to their conditions of service based on the employers’ operational requirements. The court in Schoeman v Samsung Electronics confirmed that employer’s right to run its business in a successful manner, which includes affecting changes to the existing terms and conditions of employment to be aligned with the market demand. The dismissal is outlawed as a mechanism to coerce the employees to acceptance the employer’s demand relating to matters of mutual interest. At the same time, the employers are within their rights terminate the service of the employees who refuse to accept changes to their conditions of service based on the employers operational requirements. There is a clear tension between sections 187(1) (c), 188(1) (ii) and 189 of LRA. When the employers seek to review the terms and conditions of employment, the tension between these sections becomes more common, as it involves the matters of mutual interest which are dealt with through the collective bargaining arena and the dispute of right through arbitration. In Fry’s Metals v Numsa the court rejected the notion that there is tension between section 187(1) (c) and section 188(1) (a) (ii) of the LRA. Instead the court was of the view that, there is a historical context to section 187(1) (c) which is the now repealed 1956 Labour Relations Act. The 1956 LRA included in its definition of a lock-out the termination by the employer. Secondly, the court interpreted section 187(1)(C) to only give protection to employees who are dismissed in order to compel them to accept a demand on a matter of mutual interest, and only where the dismissal was of a temporary nature. The court interpretation in Fry’s metals implied that, section 187(1)(c) will only come to the defence of employees if they are dismissed for the purpose compelling them to accept a demand on a matter of mutual interest, and if the dismissal was of a temporary nature. Where a permanent dismissal is effected because employees would not accept its demands, section 187(1) (c) could not come to the employees’ protection. Considering that the lock out provided for in terms of the 1995 LRA is not a preferred option by most of the employers, they will rather resort to use the loophole created by the narrow interpretation of section 187(1)(c) to circumvent having to secure consensus from the affected employees and rather dismissed them based on operational requirements. This study seeks to deal with the questions relating to the relationship between collective bargaining related dismissals in particular the automatically unfair dismissal in terms of section 187(1) (c) and business restructuring related dismissal. As such the relationship between sections 187(1) (c) and dismissals based on operational requirements will be central to this study.

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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2022 / This study examines the relationship between automatic unfair dismissal under Section 187(1)(c) of the Labour Relations Act,1 and dismissal for operational reasons under Section 189 of the LRA. Dismissal is automatically unfair if the reason for dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer and this is according to Section 187(1)(c) of the LRA Employees have the right to refuse the new terms and conditions of employment, and they cannot be dismissed for doing so. However, if the employer’s business is in decline and thus causes financially loss to the employer, the employer may change the operation of the employment in order to sustain the employment. The employer must initiate consultation process (collective bargaining) with the employees' representatives in order to reach an agreement that protects both the employer's and the employees' interests. To avoid retrenchment, the employer and the employees’ representatives through collective bargaining have to agree to new conditions of the employment and should the parties agree on the new conditions of the employment this will automatically set aside the terms and conditions of the employment contract. In K Ngubane v NTE Limited, 2 “the court observed and noted that the requirement is that the old contract of employment must be terminated with the purpose of inducing acceptance of a demand or proposal, or the employer can simultaneously terminate the contract of employment and give the employee his/her final offer”. Before resorting to dismissal, the employer must exhaust all the alternatives available to him and this could include, inter alia, change of job descriptions since this will not have adverse financial consequences for the workers. If the employees refuse to accept the demands of the employer that were aimed to avoid retrenchments for operational reasons, the employer may dismiss them in accordance with the provisions of section

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Advancing technology has caused rapid and dramatic changes in the world of work. Labour law systems grounded in the industrial era, with their emphasis on collective bargaining, are not suitable in today’s world of work. Throughout the world, the ‘atypical employee’ is replacing the standard or typical employee whose terms and conditions of employment were generally regulated by collective agreements. Atypical employee’s terms and conditions of employment generally are not regulated by collective agreements. World– wide trends in the decentralisation of collective bargaining, decollectivisation and individualisation of the employment relationship have contributed to a decline in trade union power and influence. Consequently the number of workers covered by collective agreements has decreased. Collective bargaining has been rendered less effective because of the changing the world of work. The South African labour law system places a huge emphasis on collective bargaining, particularly at industry level, for the protection of employee interests. Given these trends in the changing world of work, the appropriateness of this emphasis on industry or central level collective bargaining is questioned. The vacuum left by the inadequacy and inability of trade unions to protect employee interests in a comprehensive manner by means of collective bargaining, needs to be addressed. The following alternative means of protecting employee interests are considered: (i) The socialisation of the law of contract; (ii) the interpretation given to the constitutional right to fair labour practices; and (iii) the role of good corporate governance and corporate social responsibility. These alternative means of addressing legitimate employee interests could play a role in filling the vacuum created by trade union decline. The South African law of contract is capable of bridging the gap between law and justice by the application of the concepts of good faith and public policy, so that employment contracts may take cognisance of employee interests despite the imbalance of power between employer and employee. The protection of worker interests by means of the constitutional right to fair labour practices depends on the judge’s interpretation of what is fair. Implementation of good corporate governance codes can be influential in protecting and promoting employee interests. / Thesis (LLD (Mercantile Law))--University of Pretoria, 2006. / Mercantile Law / unrestricted

The International Labour Organisation (ILO) is dedicated to achieving social justice throughout the world. It specifically recognises the right to collective bargaining as one of the main drivers of its ambitions. It desires to achieve social justice through various Conventions and Recommendations. South Africa as a member of ILO constitutionally recognises the right to engage in collective bargaining. The Labour Relations Act (LRA) advocates for the establishment of bargaining councils in various sectors in the country to effectively recognise this right. This study predominantly focuses on the efficiency of these councils as tools for collective bargaining. The study is intended to ultimately provide a lesson to Lesotho. Trade unions in Lesotho’s garment industry are adamant that bargaining councils are the solution to the country’s collective bargaining woes. Specific attention is paid to the history of collective bargaining in the two countries to firstly indicate the inter relation of the bargaining framework in the two countries and to trace the origins of the bargaining councils in South Africa’s set up. The role of these councils is examined, with prime attention placed on the advantages and disadvantages of industry level bargaining. The Constitutions of the National Textile Bargaining Council and The National Bargaining Council for the Manufacturing Industry are examined to determine the roles these councils play in the collective bargaining framework of South Africa. Attention is also paid to the procedures required for the establishment of these councils. The challenges facing this form of bargaining are also outlined, with prime attention being given to the cases in South African courts that are a potential threat to the bargaining council system in South Africa. The study culminates in conclusions on the bargaining framework in South Africa and provides recommendations on ways to improve the collective bargaining framework in the country. This subsequently provides a platform for the lessons that Lesotho should learn from the framework in South Africa. The study ultimately concludes that bargaining councils are efficient tools for the promotion of collective bargaining. They, however, are not a desirable solution for the collective bargaining problems faced in Lesotho’s context. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2015

The International Labour Organisation (ILO) is dedicated to achieving social justice throughout the world. It specifically recognises the right to collective bargaining as one of the main drivers of its ambitions. It desires to achieve social justice through various Conventions and Recommendations. South Africa as a member of ILO constitutionally recognises the right to engage in collective bargaining. The Labour Relations Act (LRA) advocates for the establishment of bargaining councils in various sectors in the country to effectively recognise this right. This study predominantly focuses on the efficiency of these councils as tools for collective bargaining. The study is intended to ultimately provide a lesson to Lesotho. Trade unions in Lesotho’s garment industry are adamant that bargaining councils are the solution to the country’s collective bargaining woes. Specific attention is paid to the history of collective bargaining in the two countries to firstly indicate the inter relation of the bargaining framework in the two countries and to trace the origins of the bargaining councils in South Africa’s set up. The role of these councils is examined, with prime attention placed on the advantages and disadvantages of industry level bargaining. The Constitutions of the National Textile Bargaining Council and The National Bargaining Council for the Manufacturing Industry are examined to determine the roles these councils play in the collective bargaining framework of South Africa. Attention is also paid to the procedures required for the establishment of these councils. The challenges facing this form of bargaining are also outlined, with prime attention being given to the cases in South African courts that are a potential threat to the bargaining council system in South Africa. The study culminates in conclusions on the bargaining framework in South Africa and provides recommendations on ways to improve the collective bargaining framework in the country. This subsequently provides a platform for the lessons that Lesotho should learn from the framework in South Africa. The study ultimately concludes that bargaining councils are efficient tools for the promotion of collective bargaining. They, however, are not a desirable solution for the collective bargaining problems faced in Lesotho’s context. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2015

Set against a background of technological change, national bargaining and union merger, this thesis considers the impact of a changing structural, economic and political climate on the resilience of national pay bargaining within general print, a little documented but important section of the economy. It seeks to examine contemporary workplace industrial relations where, against national trends, national bargaining has been resilient. It is in the light of there being a long association with strong, regulatory unionism within the sector that this study seeks to explore the reality of workplace industrial relations under national bargaining. There has been a wealth of theoretical and empirical data produced on the background to the wider debate on the declining influence of multi-employer bargaining across the UK economy. However, little work has been committed to the general printing sector that investigates why, in the face of fundamental changes to industrial relations practice, the national agreement for this sector appears to have continued relatively unscathed. The thesis draws on the experience of twelve branches with respect to the impact of the national agreement; three case studies in general print sector companies located in the South West, Humberside and Anglia regions; and on documentary evidence and participant observation. Analysis of the thesis was informed by classical and contemporary writers on industrial relations. The thesis finds a shift from traditional adversarial approaches to partnership in national agreement negotiations. The thesis reveals that at the workplace level, the chapel structure remains intact with its traditional, hierarchal structure and the accompanying issues of gender segregation and worker exclusion remaining firmly embedded within chapels. Behind this appearance of chapel strength an air of apathy and poor organisation impacts on union activity and local bargaining. The thesis concludes by critiquing shifts away from traditional bargaining and questions the state of workplace organisation with changes in union structure. Importantly, the thesis presents data on the state of collective bargaining in the sector, and in particular identifies a shift from the traditional adversarial approach to partnership in the national agreement; it also identifies the difference in the image and reality of workplace organisation in the sector where behind the appearance of chapel strength lies an air of apathy and poor organisation that ultimately impacts on chapel activity and local bargaining. Using Kelly’s model for union renewal the thesis assesses the level of union activity and considers the likelihood of increased union activity in the workplace in the general print sector.