PART 4 Labour Relations 1

The environment for HR Finding & placing qualified employees Assessing & developing qualified employees CHAPTER 13: The Union–management relationship, employee discipline and dismissal 4 Labour relations Emerging HR practices

The Union–management relationship, employee discipline and dismissal CHAPTER 13 The Union–management relationship, employee discipline and dismissal 3

Chapter outcomes describe what a union is and explain why employees join unions understand the basic elements of the Labour Relations Act, No. 66 of 1995 as amended discuss the role and objectives of the National Economic Development and Labour Council (NEDLAC) describe the typical collective bargaining process 4

Chapter outcomes recognise the various sources of poor performance through the illustration and discussion of an unsatisfactory performance model explain both good and poor ways to discipline employees illustrate a model of positive discipline and describe the procedures for ensuring that discipline achieves its goals identify the procedures for carrying out the dismissal decision humanely and tactfully and according to the law 5

Definition Union - 6

Trade unions, collective bargaining and grievance procedure Employers’ organisations International Labour Organisation (ILO) Labour Relations Act 66 of 1995 NEDLAC Collective bargaining 7

Labour relations management ....that part of management that encompasses a study of those factors and dynamics that emanate from, and are related to, ______________________. 8

The role players in labour relations _________ Secondary relationship _________ relationship _________ __________ ________ relationship 9

Trade union .... an ongoing permanent organisation _____________________ to _________ themselves in their work, to improve their _______________ through collective bargaining, to try to improve their _____________ and to offer a mechanism by which workers can put their standpoints. 10

Primary goal of a trade union ... to promote the interests of its membership through __________________ (standard of living and working conditions). 11

Trade union goals Union security Job security Improved economic conditions Fairness and justice Social action 12

Kinds of unions Industrial unions Trade/craft unions Employee association 13

Why to join a trade union? Job security Working conditions Mechanism to be heard Reasons NOT to join a trade union Cost Union ineffectiveness Political intimidation 14

Trade union registration Trade union obligations Independent Address in the RSA Bookkeeping Annual audit Minutes of meetings 15

Trade union rights Sufficiently representative trade unions Majority representative trade unions 16

The shop steward Two-fold task Functions Number of shop stewards Time off during working hours Disclosure of information 17

The formal dimension of labour relations Constitution Labour Relations Act Basic Conditions of Employment Act Occupational Health and Safety Act Compensation for Occupational Injuries and Diseases Act Unemployment Insurance Act Employment Equity Act Skills Development Act Skills Development Levies Act 18

Reasons for the new LRA Old Act no longer intelligible Inadequate collective bargaining Ineffective dispute resolution Interim Constitution 19

Aims of the LRA 20

Who is excluded from the LRA? Farm workers? Domestic workers? 21

Benefits for workers i.t.o the LRA Trade unions Consultation Information Protection against victimisation 22

Benefits for employers i.t.o the LRA Employers’ organisations Less production time lost Successful restructuring Accommodation of small business needs 23

__________ Labour Relations Act The Constitution and Fundamental Rights International Conventions __________ Labour Relations Act Rights and obligations of employees, unions, employers and employers’ organisations Promotion of collective bargaining and worker participation Dispute resolution and labour peace Freedom of association Collective agreements ____________ ______________ Bargaining Councils Labour Court Unfair dismissal Statutory Councils Labour Appeal Court ______________ _____________ Strikes and lockouts

Freedom of association ___________ ___________ Rights and obligations of employees, unions, employers and employers’ organisations Unfair labour practice ___________

Promotion of collective bargaining and worker participation ___________ __________ Written agreement Terms & conditions of employment Between registered trade union(s) and employer(s)/employers’ organisation(s) Established for a specific sector in a specific geographical area Functions: (1) _________________ (2) _________________ __________ __________ Difference? Aims are to promote (1) _______________________ (2) _______________________ Functions: (1) Consultation (2) Joint decision making (3) Information sharing Established at request of union(s)/employers’ organisation(s) representing 30%+ of employers/employees in sector & area Function: Dispute resolution

Establishment of workplace forums 27

Working of workplace forums Regular meetings between employer and WPF Regular meetings between WPF and employees Yearly reports by management Union officials may attend meetings Dissolved by ballot 28

? ? ? Labour Appeal Court Labour Court CCMA Dispute resolution and _____ peace Councils & private agencies CCMA Labour Court ?

Management Committee Secretariat EXECUTIVE COUNCIL Representatives of NEDLAC Management Committee Secretariat EXECUTIVE COUNCIL Representatives of The State Organised labour Organised employers Development organisations Summit Chambers Public finance and monetary policy Trade and industry Labour market Development State, employer and union representatives Community development representatives

The phases of the negotiation process Planning, preparation and organisation Execution of negotiation strategies and tactics, and utilisation of structures in order to achieve objectives Agreements are concluded, and the maintenance of relations and the administration of agreements follow

Bargaining strategies 32

Contract format Union recognition and scope of the bargaining unit Management rights Union security (eg. closed shop) Job rights and seniority 33

Bargaining impasse Assistance from third party Union power tactics Employer power tactics 34

Strike Temporary Stoppage of work Collective action Means of expressing a grievance 35

Strikes: Procedural requirements Ballot? 36

Types of strikes Economic strike Grievance strike Secondary/sympathy strike Wildcat strike 37

Other forms of industrial action Picketing Boycott 38

Grievance vs gripe Grievance Gripe 39

Typical steps in a grievance procedure Grievance procedure ends Start of dispute settlement process if preferred, eg bargaining council, mediation, conciliation, arbitration, judicial settlement or strike Unsettled ______ Ruling at highest level (top management) Step 5 Settled Unsettled ______ ________________________________ Step 4 Settled Step 3 Unsettled 4 working days Worker & representative Manager from higher level Settled Unsettled Step 2 ______ Settled (record) Worker & representative Head of immediate supervisor Unsettled Step 1 Verbally 24 hours Settled (record) Worker Immediate supervisor

Discipline, counselling & dismissal Performance problems Discipline Disciplinary dismissal Outside misconduct 41

A model for analysing and correcting unsatisfactory performance 1 __________ Train Discipline ___________ 3 ______________ Transfer/ demote Council/ refer Personal problems Change the work ___________ 2 __________ _____________ __________ Lack of motivation

Incorrect discipline Punitive discipline Negative feedback Late intervention Inadequate definition Labelling employees, not behaviour Misplaced responsibility 43

Preventative discipline 44

Steps in the process of discipline _____________________  Administer progressive discipline  ___________________  Communicate disciplinary policy, procedure and rules  _____________________  Clarify responsibility for discipline 

The hot-stove rule Immediate Warning Consistent Impersonal 46

Dismissal Automatically unfair dismissals Other unfair dismissals Substantive fairness (reason) Procedural fairness (procedure) Remedies 47

Dismissal for misconduct Substantive fairness Contravene a workplace rule/standard? Rule/standard reasonable/valid? Rule/standard consistently applied? Nature of job/workplace 48

Dismissal for misconduct (continued) Procedural fairness State case (disciplinary hearing) 49

Dismissal for incapacity: Incompetence Substantive fairness Fail to meet __________ Aware of ________________ Fair _________ Appropriate ________ Procedural fairness Opportunity to __________ No other _________ 50

Dismissal for incapacity: Ill health or injury Substantive fairness Capable of performing work Extent of capability Procedural fairness Adaptation of work circumstances Alternatives 51

Dismissal for operational reasons _____________ dismissals Substantive fairness ____________ reason Procedural fairness Attempt to reach consensus Method of selection Severance pay 52

Dismissal for operational reasons Procedural fairness (continue) Disclose information Future reemployment Representations Consider and respond to representations Provide reasons Selection of employees according to set criteria 53

Summary A union has a major impact on an organisation’s management. Many HR decisions must be shared with the union, and the labour contract limits management’s flexibility for the length of the agreement. Finally, poor relations between management and labour may result in costly and stressful organisational conflict. The percentage of organised labour in South Africa has doubled since 1985 to approximately 3 million. This represents about 40% of the workforce. The goals of the unions have not changed dramatically since their beginning. Important union goals include job security, improved wages and benefits, favourable working conditions and fair and just treatment for their members. The heart of the union structure is the local union, although the national union provides important direction and guidance. The local union often receives assistance from the national union during the collective bargaining process. During the organising drive, the union attempts to convince workers that they will be better off by organising. Management tries to convince them that they are better off without the union. Labour legislation provides a number of ground rules regarding the recognition of a union in the workplace.

Summary Relations between organised labour and management are strictly governed by the Labour Relations Act, No. 66 of 1995. Managers and HR administrators who work in unionised organisations must be intimately familiar with this law. There are a variety of different collective bargaining strategies. The most common form involves distributive bargaining, or win/lose bargaining, although this strategy seems to be giving way to more cooperative forms such as integrative bargaining and productivity bargaining. Concessionary bargaining, or give-back bargaining, has increased as a result of foreign competition. The negotiation process involves a great deal of give and take before an agreement is reached. A bargaining impasse may cause a strike, lockout or other power tactic. However, more often mediation or other third-party techniques will be used to end the impasse. Grievance handling is a critical part of labour relations. The multi-step procedure usually includes arbitration as a final step. The grievance process can keep minor disagreements from disrupting the workplace unnecessarily.

Summary Many reasons may cause an employee to perform unsatisfactorily. Some of these reasons may be directly attributable to management’s shortcomings or to some other problem of the organisation. When attempting to determine the cause of poor employee performance, managers should recognise that the employee may not be responsible for the unsatisfactory behaviour. Discipline should be applied only when it has been determined that the employee is the cause of the unsatisfactory performance. There are different approaches to the disciplinary process; the most effective technique involves administration of preventive discipline. If discipline must be administered, the positive approach should be used. Corrective counselling is a particularly important part of the positive discipline process. It helps build respect and trust between the supervisor and subordinate and encourages the employee to find his or her own solutions to problems. The more the employee participates in the problem-solving process, the greater the chances for a permanent improvement in employee behaviour.

Summary Much of the supervisory resistance to change can be reduced by training supervisors to follow the hot-stove rule. With this technique, discipline is administered immediately, with a warning, consistently and impersonally. HR managers must ensure that supervisory training programmes provide instruction in applying each of the hot-stove rules. Dismissal can be traumatic and costly for both the dismissed employee and the organisation. The dismissal should be thoroughly planned and carried out in a professional manner and according to the law. It is particularly important that the employee be given complete details regarding the dismissal, including why it is taking place and how the dismissal is to be carried out. For a dismissal to be fair it must be substantively and procedurally fair.