The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.

Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.

Conflict is an inherent part of any service relationship, and is one of the important methods of effective organisational functioning. Depending on its management, it has both constructive and negative outcomes. The most extreme outcome of conflict in an industrial relationship is a strike. The South African Public Service strike of 2007 was the most protracted and united strike in the history of South Africa. In order to provide an insight into this strike, this treatise explores the following key aspects: • To present a short background of collective bargaining in the public sector through time. • To provide a short background to the public sector strike in 2007. • To develop a conflict model for analytic purposes based on a literature review and to use the conflict model to analyse the strike. A study of the strike was deemed essential because of its current nature and it being charged with political undertones. Moreover, conflict in the employment relationship has had an important influence on theories of industrial relations. The South African labour relations system is pluralist in nature, with a focus on the formal institutions of industrial relations. The focus should be on the motives and actions of parties in the employment relationship. Hence, one should look beyond conventional explanations in understanding conflict.

Thesis (MBA)--Stellenbosch University, 2005. / ENGLISH ABSTRACT: Collective bargaining has gained more prominence within the industrial relations system as the latter is undergoing a worldwide transformation process. None of the effects of this transformation process is potentially more important to workers than the impact on dispute resolution. Changes in world markets furthermore necessitate a renewed emphasis on quality of products and services. Within this context labour conflicts in the public service have potential crucial consequences for the South African government's ability to promote economic development and service delivery. The Education Labour Relations Council (ELRC) with its nine provincial chambers provides the infrastructure for collective bargaining in the public education sector and plays an important role in managing conflict and disputes within this sector. The goal of this research is to determine whether the Western Cape provincial chamber of the ELRC (PELRC) is effective in the fulfilment of its statutory functions, with specific reference to its collective bargaining and dispute resolution functions. Data has been collected by conducting interviews using an interview schedule. The research indicated that the PELRC does perform its statutory collective bargaining and dispute resolution functions. The PELRC, however, is more active in terms of dispute resolution than collective bargaining. The research established that the PELRC does not measure its effectiveness. Results were inconclusive regarding the PELRC's effectiveness in terms of its service delivery. The research, though did manage to identify those factors that contribute to effectiveness as well as those that counter it. It furthermore indicated that when effective, the PELRC's service delivery has a positive impact on the said statutory functions. / AFRIKAANSE OPSOMMING: Kollektiewe bedinging het in vernaamheid binne die arbeidsverhoudinge sisteem toegeneem soos wat laasgenoemde 'n wêreldwye transformasie proses ondergaan. Geen van die gevolge van hierdie transformasie proses is vir werkers moontlik belangriker as die invloed wat dit op dispuut oplossing het nie. Veranderinge binne wêreld markte het verder 'n hernuwe klem op die kwaliteit van produkte en dienste genoodsaak. Binne hierdie verband het arbeidskonflik in die staatsdiens potensieel kritieke gevolge vir die Suid-Afrikaanse regering se vermoë om ekonomiese ontwikkeling en dienslewering te bevorder. Die Raad van Arbeidsverhoudinge in die Onderwys (RAVO) met sy nege provinsiale kamers verskaf die infrastruktuur vir kollektiewe bedinging in die openbare onderwys sektor en speel 'n belangrike rol in die bestuur van konflik en dispute binne hierdie sektor. Die doel van hierdie navorsing is om te bepaal of die Wes-Kaap provinsiale kamer van die RAVO (PRAVO) effektief is in die uitvoering van sy statutêre funksies met spesifieke verwysing na sy kollektiewe bedinging en dispuut oplossing funksies. Data is ingesamel deur onderhoude te voer waartydens 'n onderhoud skedule gebruik is. Die navorsing het aangetoon dat die PRAVO wel sy statutêre kollektiewe bedinging en dispuut oplossing funksies uitvoer. Die PRAVO is egter meer aktief in terme van dispuut oplossing as kollektiewe bedinging. Die navorsing het vasgestel dat die PRAVO nie sy effektiwiteit meet nie. Resultate was onoortuigend betreffende die PRAVO se effektiwiteit in terme van sy dienslewering. Die navorsing het wel daardie faktore wat tot effektiwiteit bydra sowel as dié wat dit teenwerk geïdentifiseer. Dit het verder aangetoon dat wanneer effektief, die PRAVO se dienslewering 'n positiewe invloed op die genoemde statutêre funksies het.

M.Comm. / Collective bargaining has undergone substantial changes in South Africa. Not alone have we seen dramatic political change but a totally new rule of law. The Interim Constitution was but the beginning. With the promulgation of Act 200 of 1994 a new era was entered into, not only for South Africa, but in particular, for collective bargaining in South Africa. With the final Constitution, Act 108 of 1996, taking effect on 4 February 1997, a new era arrived for collective bargaining. Since the passing of the Interim Constitution in 1994 there have been many changes. Various changes in the legislation occurred, amongst others, (a) the Act on National Economical Development and Labour, No. 35 of 1994, (b) the New Act on Labour Relations, No. 66 of 1995, (c) the New Act on Basic Conditions of Employment, the New Act on Public Holidays, No. 36 of 1994, (d) the Occupational Health and Safety Act, No. 85 of 1993, (e) the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 and the like, have signalled the changes in the new collective bargaining arena. A vast amount of sections in the Constitution's Bill of Rights can be made applicable to collective bargaining. It makes one realise the importance of this subject. Section 23 of the Constitution entrenches the fundamental right of collective bargaining. This right is not only entrenched in the Constitution, but made practical under the new Labour Relations Act, Act. 66 of 1995. Of particular importance are the structures within which collective bargaining under the new Act are envisaged. The Communication sector, and in particular the Telecommunication sector in South Africa, finds itself in a very regulated environment. Exclusive rights have been granted to TELKOM for another four years, which was initially five years starting in 1997, and expiring in 2001. The Communication Workers' Union, the dominant union in the Telecommunication sector, is trying to expand its power base and is looking to gain control of the Telecommunication sector as a whole.

Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. / Abstract

In the sphere of labour and employment, "prerogative" is usually taken to refer to the "right to manage" an organisation. The right can be divided into those decisions which relate to the utilisation of the human resources of the organisation and decisions of an "economic" or "business" nature. This thesis focuses on the first category of decisionmaking. It is generally accepted by employers and trade unions that employers have the right to manage employees. The legal basis for this right is to be found in the contract of employment which has as one of its elements the subordination of the employee to the authority of the employer. This element affords the employer the legal right to give instructions and creates the legal duty for the employee to obey these instructions. Employers' right to manage is, however, neither fixed nor static. The main purpose of this thesis is to determine the extent of employers' right to manage employees. This is done by examining the restrictions imposed by the law {ie common law and legislation) and collective bargaining. The examination is accordingly focussed on what is Jett of employer prerogative. A number of conclusions are drawn from the examination. One of the most important conclusions reached is that, although most of an employer's common law decisionmaking powers have been statutorily regulated, none have been rescinded. The employer has accordingly retained its decision-making power, albeit in a more restricted or limited form. This makes further restriction of its decision-making power through contractual or statutory provisions or collective bargaining possible. It, however, also makes the lessening or even the total removal of these restrictions through future statutory provisions or collective bargaining possible. / Law / LL.D.

The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.

In the sphere of labour and employment, "prerogative" is usually taken to refer to the "right to manage" an organisation. The right can be divided into those decisions which relate to the utilisation of the human resources of the organisation and decisions of an "economic" or "business" nature. This thesis focuses on the first category of decisionmaking. It is generally accepted by employers and trade unions that employers have the right to manage employees. The legal basis for this right is to be found in the contract of employment which has as one of its elements the subordination of the employee to the authority of the employer. This element affords the employer the legal right to give instructions and creates the legal duty for the employee to obey these instructions. Employers' right to manage is, however, neither fixed nor static. The main purpose of this thesis is to determine the extent of employers' right to manage employees. This is done by examining the restrictions imposed by the law {ie common law and legislation) and collective bargaining. The examination is accordingly focussed on what is Jett of employer prerogative. A number of conclusions are drawn from the examination. One of the most important conclusions reached is that, although most of an employer's common law decisionmaking powers have been statutorily regulated, none have been rescinded. The employer has accordingly retained its decision-making power, albeit in a more restricted or limited form. This makes further restriction of its decision-making power through contractual or statutory provisions or collective bargaining possible. It, however, also makes the lessening or even the total removal of these restrictions through future statutory provisions or collective bargaining possible. / Law / LL.D.

This dissertation analyses, in a comparative perspective collective agreements entered into in Belgium and in South Africa in the private sector. It is divided into three parts: Belgian law, South African law and a comparative perspective. Each part adopts the same format: it comprises a historical survey, a description of the parties to collective agreements, the forums in which collective bargaining takes place and an analysis of collective agreements, focusing on the nature of their binding force. Because Belgian law prohibits agency shop and closed shop agreements, on the basis of the freedom of association, no reference has been made to these agreements, even though they are permitted in South Africa and are regarded as collective agreements. This dissertation does not deal with collective agreements entered into to regulate terms and conditions of employment in the public sector as state employees in Belgium are excluded from the scope of labour law and have their employment relationship governed by administrative law / Law / LL.M.