THE ORIGINS OF INDUSTRIAL RELATIONS
Industrial relations was born out of necessity with the advent of the Industrial Revolution. Prior to this, organisations employing thousands of employees were non existing and no mechanism existed to deal with the relationship between employers and employees. This period was characterised by long working hours, unsafe working conditions and the exploitation of workers which in turn led to violent strikes, instability and eventually the establishment of trade unions. Industrial relations solutions were desperately needed to mitigate this situation and manage the employment relationship.
Industrial relations, therefore, in essence, is the management of the relationship between an employer and an employee in order to create a harmonious and productive working environment and to balance the uneven bargaining powers of employers versus individual employees.
Industrial relations aim to strike a balance between pure capitalistic, employer driven, economic principles and employee demands. In order to find this balance, governments had to create a legal framework to regulate industrial relations and employment relationships. In modern times industrial relations therefore became the tool used to manage relationships between employers, unions, employees and government.
INDUSTRIAL RELATIONS IN SOUTH AFRICA TODAY
Industrial relations is the management of the relationship between employers, unions and employees within a legislative framework. In South Africa the legislative framework is contained in the Constitution of the Republic of South
Africa, which guarantees the fundamental rights to fair labour practices and collective bargaining, and in the Labour Relations Act. This Act sets out the rights of employers, employees and unions as well as the manner in which
these rights may be exercised.
Industrial relations therefore encompasses the area of collective bargaining with trade unions on conditions of employment, or individual negotiations with employees where there is no trade union, employer policies, grievances, disciplinary measures, retrenchments, incapacities, strikes and lock outs as well as dispute resolution under the auspices of the CCMA and various bargaining councils.
Although industrial relations is aimed at creating a harmonious working environment, this is not always possible due to the perceived competing interests and different ideological approaches of employers and employees.
Therefore, disputes are commonplace, and the industrial relations legislative framework provides the mechanisms for resolving these disputes in a structured manner.
These disputes can take various forms depending on the nature of the disagreement between the various parties. The most prominent disputes employers and employees, trade unions, labour relations consultants and employers’ organisations are confronted with on a daily basis are:
Disciplinary disputes deal with alleged transgressions of the disciplinary code of the employer by employees or a breach of an employee’s duties as contained in his contract of employment. A disciplinary code sets out the rules of the workplace. Should an employee break these rules the employer is entitled to initiate a disciplinary process as stipulated by the Labour Relations Act. The outcome of such disciplinary action may be a warning or the dismissal of such an employee, depending on the circumstances and nature of the transgression.
DISPUTES ABOUT CONDITIONS OF EMPLOYMENT
These disputes typically entail disagreements surrounding the working conditions and benefits of employees. It includes issues like wages, leave, medical aid, provident fund or any other mutual interest matter between an employer and its employees. Normally the employees will be represented by a trade union which carries a mandate to speak for the collective. These disputes often result in strike action if not resolved. Strike management and negotiations aimed at resolving the impasse is an important function of industrial relations consultants and employers’ organisations.
Incapacity procedures encompass two different scenarios.
Ill health incapacity is a process whereby it has to be determined whether an employee is unable to continue to perform his duties due to illness or injury. There is an obligation on the employer to attempt to accommodate the employee, in particular where an employee was injured on duty.
Poor work performance envisages a situation where an employee simply does not have the capability to perform a certain task satisfactorily. These tasks are normally measured against a set target which the employee continuously fails to achieve. As with all these processes, the Labour Relations Act prescribes certain guidelines on how to deal with incapacity dismissals.
Retrenchment is a somewhat complex process that is initiated when the employer needs to reduce his number of employees due to the employer’s operational requirements. The operational requirements of employers may vary but this situation will typically arise where the employer can no longer afford to pay the employees or, due to changes in technology, the skills of some employees are no longer required, or a company restructures its organigram resulting in some positions becoming redundant. The Labour Relations Act prescribes a very strict process which must be followed if retrenchments are being contemplated. Retrenchment is a process an employer should not embark on without the assistance of an employers’ organisation or labour consultant.
All the processes described above are aimed at protecting the rights of an employee. Should an employee be of the view that his rights have been infringed, he may refer a dispute to the CCMA or relevant bargaining council. The CCMA or bargaining council was established to resolve disputes between employers and employees. The conciliation process is the first step in this process. A conciliation is, simply put, an attempt by an independent commissioner to settle the dispute between the parties. If a settlement is reached, it is the end of the matter.
In the event of a settlement not being reached at conciliation, the employee may request the matter to be arbitrated by a commissioner. An arbitration is like a mini court case, the commissioner hears evidence from both sides and then decides which version is more probable or whether a sanction implemented by the employer was appropriate under the circumstances.
All these relationships and dispute management functions fall within the arena of industrial relations. It is a complex and ever evolving field of law. Employers would be well advised to acquire the services of a labour consultant or employers’ organisation to assist with the management of these issues.
Steven House, 3rd Floor
570 Fehrsen Street
Tel: (+27)12 622 8971
If you do what you've always done, you'll get what you've always gotten.