D.Com. (Industrial Psychology) / The primary purpose of this study was to determine various perceptions of a group of Black industrial workers regarding group conflict which arises between management and the workers. A second objective was to establish whether any differences exist between ,the perceptions of this group and those of a similar White group. "Conflict" as a phenomenon was introduced and 'collective bargaining' as a means of resolving labour-management conflict was reviewed. This required examining the history of negotiation and its development from biblical times, the Black man's traditional method of negotiation, and the Black workers' involvement in, the trade union movement in South Africa to-day. A study of the relevant literature revealed various approaches to industrial relations, and frames of reference, and it became clear that a person's approach would largely he determined by the frame of reference adopted. The most popular frame of reference in Western industrialized countries appears to he the pluralist perspective which views conflict as' a natural outcome of human interaction. As such it is found in all labour-management interaction t and has been institutionalized through the process of collective bargaining. The sample used in the study consisted of 1124 Black and 201 White industrial workers employed in East London. The instrument used was a questionnaire designed to measure the attitudes of the two groups on various aspects of collective bargaining...

This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.

Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.

ollective bargaining continues to play a prominent role in shaping employment relations in South Africa, without which the individual worker is powerless and in a weaker bargaining position against his employer. Collective bargaining can be described as an interactive process that resolves disputes between the employer and employee. In South Africa the advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. Therefore in examining the history of collective bargaining in South Africa it is necessary to reflect on the state of labour relations prior and post the 1994 democratic elections. The study provides an overview of the practices and processes of public service collective bargaining in the old and new public service. The public sector accounts for a very significant proportion of employment in all countries around the globe, South Africa is no exception. Although the state as employer is in a stronger position than its private sector counterpart, the public employee is potentially also in a stronger position than its private sector counterpart. A defining characteristic of most government activity and services is that they are the ones available to the public. This means that industrial action which disrupts such services has a very significant impact on the public, serving as a substantial leverage in collective bargaining. The bargaining councils in the public sector which ensure the effectiveness of collective bargaining are maintained, are examined to provide a comprehensive understanding of the workings of these institutions. Some of the gains and challenges are also explored to provide a holistic picture of state of collective bargaining in public service. A comparison of countries seeks to analyse and compare globally the developments of collective bargaining in public administrations. The different political systems around the world have developed various labour relations processes in the public service, an examination of the approaches and mechanisms provides alternative ways of doing things. Recommendations are made regarding the changes that need to be made, as well as matters, which need to be analysed and examined further.

The 1996 Constitution provides workers with the right to form and join trade unions and to participate in the activities and programmes of those trade unions. The organizational and associated rights contained in sections 23(2)-(4) of the Constitution of Republic of South Africa, form the bedrock of a labour-relations system characterized by voluntarist collective bargaining. The constitutional protection that the above section gives to these organisational rights shields the trade unions and employer organisations from legislative and executive interference in their affairs and in turn, inhibits victimisation of and interference in trade unions by employers. One of the expressly stated purposes of the Labour Relations Act of 1995 (hereinafter referred to as the “LRA”) is to promote collective bargaining and to provide a framework within which employers, employers’ organisations, trade unions and employees can bargain collectively to determine wages, terms and conditions of employment, other matters of mutual interest and to formulate industrial policy. Notwithstanding the above purpose, the Act does not compel collective bargaining, with the result that the courts have no role in determining, for example, whether an employer should bargain collectively with a trade, what they should bargain about, at what level they should bargain or how parties to a negotiation should conduct themselves. Despite this, by extending and bolstering the right to strike, the LRA has effectively empowered trade unions to have recourse to the strike as an integral aspect of the collective bargaining process. The LRA provides a framework that is conducive to collective bargaining and thus providing for the establishment of bargaining councils. The purpose of this treatise is to examine the role played by the Education Labour Relations Council (hereinafter referred to as the “ELRC”) as one of the sectoral bargaining councils in the Public Service, in collective bargaining. In order to place this discussion in context, it is valuable to know the history of industrial relations and collective bargaining in South Africa.

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.

Ph.D. (Psychology and People Management) / Ineffective communication, inadequate disciplinary measures and little interest in the advancement of black employees are of the greatest problems in the South African manufacturing industry. An investigation was done to determine the perception of different groups working on different levels concerning communication, black advancement in the work situation and discipline. A theoretical framework indicate that vertical communication is essential for stable labour relations in any industry. Employees show a great need to be treated fairly and to obtain democratic decision making power by means of ordered representative systems. The cultural gap, discrimination in education and training, the attitude of both whites and blacks towards one another as well as the attitude concerning integration of work facilities seem to be the most important reasons for black advancement's failure in South Africa. For black advancement to be successful in the work situation, total social, political and industrial integration is necessary.

This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it.

This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it.

The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.