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 - A formal association of workers that promotes the interests of its members through collective action 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, employment relationships. 8

The role players in labour relations The State Secondary relationship Secondary relationship Employee (trade union) Employer (management) Primary relationship 9

Trade union .... an ongoing permanent organisation established by the workers to protect themselves in their work, to improve their working conditions through collective bargaining, to try to improve their living conditions 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 collective bargaining (standard of living and working conditions). 11

Trade union goals Union security Closed shop Agency shop Job security Improved economic conditions Working conditions Fairness and justice Social action 12

Kinds of unions Industrial unions National Union of metal Workers of South Africa (NUMSA) National Union of Mine Workers (NUM) Trade/craft unions The South African Boilermakers’ Society Employee association Public Servants Association 13

Why to join a trade union? Job security Wages and benefits Working conditions Fair and just supervision Mechanism to be heard Need to belong Reasons NOT to join a trade union Cost Union ineffectiveness No co-worker support Political intimidation Employer intimidation Union fails to meet members’ needs 14

Trade union registration Trade union obligations Independent Address in the RSA Name Constitution Bookkeeping Financial statements Annual audit List of members Minutes of meetings 15

Trade union rights Sufficiently representative trade unions Access to the workplace Union meetings at the workplace Stop-order facilities Leave for trade union activities Majority representative trade unions Election of shop stewards Disclosure of information 16

The shop steward Two-fold task Functions Enrol members See that agreements are adhered to Discuss complaints with management Look after the general wellbeing of union members 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 No statutory support for worker participation Ineffective dispute resolution International standards Interim Constitution Needs of small businesses 19

Aims of the LRA Economic development Social justice Labour peace Democratisation of the workplace 20

Who is excluded from the LRA? The National Defence Force The National Intelligence Agency The South African Secret Service Farm workers? Domestic workers? 21

Benefits for workers i.t.o the LRA Trade unions Strike Picket Consultation Joint decision making Information Fair dismissals Protection against victimisation 22

Benefits for employers i.t.o the LRA Employers’ organisations Lock-out Less production time lost Successful restructuring Joint problem-solving Effective adjudication Accommodation of small business needs 23

NEDLAC Labour Relations Act The Constitution and Fundamental Rights International Conventions NEDLAC 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 CCMA Organisational rights Bargaining Councils Labour Court Unfair dismissal Statutory Councils Labour Appeal Court Unfair labour practice Workplace forums Strikes and lockouts

Freedom of association Strikes and lockouts Organisational rights Rights and obligations of employees, unions, employers and employers’ organisations Unfair labour practice Unfair dismissal

Promotion of collective bargaining and worker participation Collective agreements Bargaining Councils 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) Collective bargaining (2) Dispute resolution Workplace forums Statutory Councils Difference? Aims are to promote (1) the interests of all employees (2) participation and efficiency 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 > 100 workers in the workplace Only registered trade unions with majority representation may apply to the CCMA Commissioner Establishment by collective agreement 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 labour peace Councils & private agencies CCMA Labour Court ? For use with Human Resource Management in South Africa 4e by Grobler, Wärnich et al ISBN: 1408019515 © 2010 Cengage Learning

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 PRE-NEGOTIATION/ PREPARATORY PHASE NEGOTIATION/ INTERACTIVE PHASE POST-NEGOTIATION/ ADMINISTRATIVE PHASE 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 Distributive bargaining Integrative bargaining Productivity bargaining Concession bargaining 32

Contract format Union recognition and scope of the bargaining unit Management rights Union security (eg. closed shop) Strikes and lockouts Job rights and seniority Wages Benefits and paid time off Safety and health Discipline, suspension and discharge Grievance handling 33

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

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

Strikes: Procedural requirements Dispute to bargaining/statutory council or CCMA 30 day waiting period 48 hours’ notice Ballot? 36

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

Other forms of industrial action Sit down Slowdown Work-to-rule action Picketing Boycott 38

Grievance vs gripe Grievance A formal complaint by an employee concerning a possible violation of the labour contract Gripe A complaint by an employee concerning an action by management that does not violate the contract 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 10 working days Ruling at highest level (top management) Step 5 Settled Unsettled 7 working days Formal grievance investigation (committee with higher-level manager) Step 4 Settled Step 3 Unsettled 4 working days Worker & representative Manager from higher level Settled Unsettled Step 2 48 hours 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

Lack of skills or abilities A model for analysing and correcting unsatisfactory performance 1 Terminate Train Discipline Define performance expectations 3 Select appropriate corrective approach(es) Transfer/ demote Council/ refer Personal problems Change the work Rehabilitate 2 Lack of skills or abilities Identify causes of unsatisfactory performance Rule breaking

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

Preventative discipline Match employee with job (selection, testing & placement) Properly orient employee to the job Provide training Clarify proper employee behaviour Provide frequent and constructive feedback Enable employees to address their problems 44

Steps in the process of discipline Administer corrective counselling techniques  Administer progressive discipline  Collect performance data  Communicate disciplinary policy, procedure and rules  Define expected employee behaviour  Clarify responsibility for discipline 

The hot-stove rule Immediate Warning Consistent Impersonal 46

Dismissal Automatically unfair dismissals Other unfair dismissals Substantive fairness (reason) Misconduct Incapacity Operational reasons Procedural fairness (procedure) Remedies Reinstatement Reemployment Compensation 47

Dismissal for misconduct Substantive fairness Contravene a workplace rule/standard? Rule/standard reasonable/valid? Employee aware of rule/standard? Rule/standard consistently applied? Dismissal appropriate sanction? Gravity of misconduct Nature of job/workplace Circumstances of employee/employer 48

Dismissal for misconduct (continued) Procedural fairness Investigation Prior notice of charge & results of investigation Reasonable time for preparation State case (disciplinary hearing) Assistance and representation (union official or fellow worker NOT legal representation) Written notification of decision Reasons 49

Dismissal for incapacity: Incompetence Substantive fairness Fail to meet performance standard Aware of required performance standard Fair opportunity Appropriate sanction Procedural fairness Opportunity to improve No other alternatives 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 “No fault” dismissals Substantive fairness Valid economic reason Procedural fairness Consultation Attempt to reach consensus Measures to avoid dismissals Method of selection Severance pay 52

Dismissal for operational reasons Procedural fairness (continue) Disclose information Reason for dismissals Alternatives Number of employees affected Method of selection Time Severance pay Assistance 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.