Mrl3702 Assignment

1. Four circum- stances under which employees of the labour bro- ker may hold both the labour broker and the client jointly and severally liable ito the LRA 2. When can an em- ployee take fam- ily responsibility ito the BCEA 3. What are the 3 NB elements that distinguish a collective agree- ment from any other agreement between employ- ees and employ- ers 4. Definition of a strike? 5. Definition of protest action If the TES contravenes - a collective agreement concluded in a bargaining council that regulates terms and conditions of employment - a binding arbitration award that regulates terms and conditions of employment - the BCEA - a determination made in terms of the BCEA An employee is entitled to 3 days family responsibility leave for every 12 months worked (s17). *Only for employ- ees who have worked for longer than 4 months and who work at least 4 days a week - a collective agreement must be in writing - only a registered union can be a party to a collective agreement - a collective agreement must regulate terms and condi- tions of employment or any other matter of mutual interest between a trade union and the employer or employers organisations A strike is the partial or complete concerted refusal to work, or the retardation or obstruction of work, by people who are or have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute on respect of any matter of mutual interest between employer and employee and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio-economic interests of 6. Under which cir- cumstances may the remedy of re- instatement not be awarded to an employee who was unfairly dis- missed 7. What does TES stand for? 8. Which terms of employment are regarded as core terms ito the BCEA and can- not be varied 9. Who is a tempo- rary employee 10. Name and ex- plain 3 forms of sexual harass- ment 11. 11. workers, but not for a purpose referred to in the definition of strike - the employee does not wish to be reinstate or re-em- ployed - the circumstances surrounding the dismissal are such that a continued employment relationship would be intol- erable - it is not reasonably practicable for he employer to rein- state or re employ the employee - the dismissal is unfair only because the employer did not follow a fair procedure Temporary Employment Services - maximum working hours - provisions relating to work - not less than 2 weeks annual leave - 4 months maternity leave - provisions relating to sick leave Employee who is supplied to a client by a TES/Labour broker. Such a relationship is characterised by its triangu- larform - victimization: an employee is victimized or intimidated for failing to submit to sexual advances - quid pro harassment: employment circumstances eg promotion or an increase are influenced by the employer, manager, or a co-employee to coerce an employee to surrender to sexual advances - sexual favoritism: a person in a position of authority in the workplace rewards only those who respond to his sexual advances 9 types of dis- missals which qualify as au- tomatically un- fair dismissals ito the LRA 12. Direct discrimi- nation = 13. Indirect discrimi- nation = 14. Discuss the em- ployee's duty to serve the em- - employer acts contrary to section 5 - participation in or supporting a protected strike or protest action - Refusal to do the work of employees who are on protect- ed strike - Compelling an employee to accept a demand made by the employer - Exercising rights against the employer - Pregnancy, intended pregnancy or any reason relating to pregnancy - Unfair discrimination - Transfer of a business - Protected disclosures Occurs if someone is clearly treated differently because of a certain characteristic for example race or gender. Eg, an employee being paid less simply because he is disabled, of a different religion than the employer or divorced Indirect discrimination is found when criteria that appear to be neutral, negatively affect a certain group dispropor- tionately for example, gay or Hindu people or women. It is often disguised and hard to detect Each employee owes his employer a duty of good faith, also referred to as a fiduciary duty. An employment rela- tionship is built on trust and confidence and this is in fact ployer's interests an implicit term of every employment contract. It includes, and act in good faith (3) 15. Precautionary suspensions 16. Punitive suspen- sion for example, the duty not to work against the employer's interests, not to compete with the employer, to devote hours of work to promoting the employer's business and to act honestly can be implemented to allow an employer to investigate the alleged misconduct of an employee, and to decide whether disciplinary action should be taken against the employee 17. Powers and func- tions of a bar- gaining council 18. What are the pro- cedural require- ments which must be com- plied with in or- der for a protest action to be pro- tected? 19. Direct discrimna- tion 20. Indirect discrimi- nation Fair suspension without pay could be an alternative to a sanction of dismissal in an attempt to correct the behavior of the employee - to conclude collective agreements - to enforce such collective agreements - to prevent and resolve labour disputes - to promote and establish training and education schemes - to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes - trade unions or federations of trade unions should ensure that their action complies with the definition or purpose of protest action - trade unions or federations of trade unions should comply with the procedure prescribed by section 77 of the LRA - occurs if someone is clearly treated differently because of a certain characteristic eg race or gender - eg an employee being paid less simply because he is disabled - fond when criteria that appear to be neutral, negatively affect a certain group disproportionately eg gay or hindu - it is often disguised or hard to detect - eg a requirement that candidates must have a deep bass voice. In such instance, more men than women qualify 21. Fiduciary duty? An employment relationship is built on trust and confi- dence and this is in fact an implicit term of every employ- ment contract Includes for example the duty not to work against the employers interests, not to compete with the employer, to devote hours of work to promoting the employers business and to act honestly 22. 22. 4 conducts by the employer which may qual- ify as actions in bad faith for pur- poses of promo- tion 23. Precautionary suspension 24. Punitive suspen- sion 25. Payment of sev- erance pay to employees dis- missed on opera- tional reasons 26. What are the cir- cumstances un- der which the remedy of re- instatement may not be ordered in case of an unfair dismissal - where the employer exercised its discretion inconsistent- ly - where the reasons provided cannot be substantiated - where the decision was taken on a wrong principle - where the decision was taken in a biased manner - can be implemented to allow an employer to investigate the alleged misconduct of an employee, and to decide whether disciplinary action should betaken against the employee - fair suspension without pay could be an alternative to a sanction of dismissal in an attempt to correct the behavior of the employee - it can be seen as a form of progressive discipline where appropriate - employer must pay the employee severance pay equal to at least one weeks pay for each completed year of continued service with that employer - eg an employer who has worked at a particular employer for 6 years and his contract is ended on the basis of oper- ational requirements, he must receive 6 weeks severance pay - an employee who unreasonably refuses to accept an offer of alternative employment with that employer or any other employer is not entitled to severance pay - employee does not wish to be reinstated or re employed - the circumstances surrounding the dismissal are such that a continued employment relationship would be intol- erable - it is not reasonably practicable for the employer to rein- state or reemploy the employee - the dismissal is unfair only because the employer did not follow a fair procedure 27. 27. What does the right to free- dom of associ- ation entail for trade unions? 28. Mention 5 pow- ers/functions of a bargaining coun- cil 29. Describe consul- tation as one of the functions of a workplace forum 30. Discuss refusal to work as an im- portant compo- nent of the defin- ition of a strike 31. What are the pro- cedural require- ments which must be com- piled with in or- der for a protest action to be pro- tected Every trade union has the right to - determine its constitution and rules - hold elections for office bearers - plan and organise its administration and lawful activities - join federations - affiliate with and participate in the affairs of international organisations - to conclude collective agreements - to enforce such collective agreements - to prevent & solve labour disputes - to promote & establish training and education schemes - to establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes - consultation entails that the employer allows the forum to make representations & to advance alternative proposals and considers and responds to these and if the employer disagrees with them, it must state the reasons for dis- agreeing - must take place before the employer implements any proposal - purpose of consultation is to attempt to reach consensus - the refusal maybe partial (employees perform only some of their duties - complete (employees do not perform any of their duties) - or involve the retardation of work (employees work but at a reduced pace) - or an obstruction of work (employee disturb production through their actions) - trade unions or federations of trade unions should ensure that their action complies with the definition or purpose of protest action - trade unions or federations of trade unions should comply with the procedure prescribed by section 77 of LRA 32. Employee = appointed to render personal services in terms of a job description 33. Independent contractor = 34. Guidelines to distinguish be- contracted to perform a specified task or to produce a specific result control test = looks at control the employee has over the work the person does the manner in which the work must tween employees be done & when and where the work must be done and independent contractors 35. Discuss the re- quirements pre- scribed by the law for the con- clusion of a valid contract, includ- ing a contract of employment 36. 4 circumstances under which em- ployees of the labour broker may hold both the labour bro- ker and the client jointly and sever- ally liable ito LRA organisation test = looks at whether the person is part and parcel of the business of the employer. The persons work must be integrated into the business of the employer and must not just be an accessory to the business dominant impression test = favored by courts and consid- ers the employment relationship as a whole rather than concentrating on only 1 factor - must be agreement between the parties - the parties to the contract must have capacity to act - agreement must be legally possible - performance under the agreement must be physically possibly - if any formalities are prescribed or the formation of that particular type of contract or if the parties themselves have agreed about certain formalities, then those formalities must be satisfied If TES contravenes: - a collective agreement concluded in a bargaining council that regulates t&c of employment - a binding arbitration award that regulates t&c of employ- ment - the BCEA - a determination made ito the BCEA 37. Family responsi- bility? 38. Who are desig- nated employees ito the EEA 39. Procedural re- quirements in or- der for a dis- missal to be fair 40. Constructive dis- missal An employee is entitled to 3 days family responsibility leave for every 12 months worked. May be taken when an employees - child is born or is sick - in the event of the death of the employees spouse / life partner / parent / grand parent / child/ grand child - larger enterprises with 50 or more employees - employers who employ fewer than 50 employees but have an annual turnover specified in schedule 4 of the EEA - municipalities - organs of state - Employers that are designated as such ito a collective agreement - the National Defense Force & state security agency are explicitly excluded from the definition of designated employers - did the employer conduct an investigation to determine whether there are grounds for dismissal? - did the employer notify the employee of the allegations - did the employee get reasonable time to prepare - was the employee allowed to state a case in response to the allegations - was the employee allowed the assistance of a union rep or co-employee - did the employer after the inquiry communicate the deci- sion taken and furnish the employee with written notifica- tion of the decision as well as the reasons for the decisions - if the employee is dismissed, did the employer remind him or any right to refer the matter to a bargaining council or the CCMA - where an employee resigns because the employer made continued employment intolerable for the employee - it was not done voluntarily - employers conduct made it impossible for the employee to continue working for the employer 41. 4 requirements for the regis- tration of trade unions 42. What are the 3 important ele- ments that dis- tinguish a collec- tive agreement from any oth- er agreement be- tween employers and employees 43. Secondary strike? - 3 elements must be present - employee must show that he resigned. 2, employee must show that the reason for the resignation was that continued employment became intolerable. 3. employee must show that it was the employ- ers conduct that created the intolerable circumstances - must adopt a name or abbreviation which is not so close to that of any other union so as to cause confusion - it must adopt a constitution that complies with certain requirements - it must have an address in SA - it must be independent from any interference or influence by the employer - collective agreement must be in writing - only a registered trade union can be a party to a collective agreement - a collective agreement must regulate t&c of employment or any other matter of mutual interest between a trade union and the employer or employers organisations - the primary strike must be protected - strikers must give their employer 7 days written notice of the commencement of their strike - the harm to the secondary employer must not be more than what is required to make an impact on the primary employer 44. strike to remedy a grievance or resolve any matter of mutual interest between employees and employers 45. protest action to promote or defend the socio-economic interests of workers 46. Formal equality focuses on protecting individuals against discrimination it views individual ability and performance as the only factors relevant for achieving success in society 47. Fixed term em- ployees as a cat- egory of non standard employ- ees 48. The duty of the employer to deal refers to a contract of employemtn that terminates on - the occurance of a specified event - the completion of a specified task or project - a fixed date - duty is captured by the constitutional right to fair labour pratices fairly with the em- - LRA protects employees against unfair treatment during ployee 49. Determing whether a person is 'suitably qulifed' depends on his 50. Meaning of "small employ- er" in the con- text of dismissal based on opera- tional reasons 51. Max working hours as de- scribed by the BCEA 52. Meaning of re- straint of trade the time of employment and against unfair dismissal at the time the employment contract is terminated - this duty is wide enough to also include the employers common law duties and the duty to comply with statutory obligations - formal qualifications - prior learning - relevant experience - capacity to acquire, within a reasonable time, the ability to do the job a small employer is a n employer that employs fewer than 50 employees max of 45 hours a week - if an employee works 5 days a week or less he may not work more than 9 hours a day - if an employer works 6 days or more a week, he may not work more than 8 hours a day - normally included in employment contracts to protect the interests of the employed against unfair competition from employees after their employment has ended - purpose is to protect the employers trade secrets, good- will and business connections 53. Lock out as a form of industrial - restraint of trade is lawful and enforceable unless it is unreasonable - defined as the exclusion by an employer of employ- ees from the employers work place for the purpose of action compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches the em- ployees contracts of employment in the course of or for the purpose of that exclusion 54. Abence without - if employee does not want to terminate the employment leave contract, but stays away from work without leave - warrants dismissal if the period of absence is unreason- ably long - if the employee returns after a few days with a letter to show that she had a reason for the absence eg hospital- ized, a dismissal will not be appropriate 55. Desertion - if the employee without resigning stays away from work with the intention of terminating the contract of employ- ment - employer must terminate the contract of employment by holding a disciplinary hearing in the absence of the employee - even if the employee returns after dismissal, the employ- er must give her the opportunity to state a case 56. Collective bar- - process entails negotiations between 2 or more par- gaining = ties namely a union on the one hand an an employer / employees organisation on the other hand about t&cs of employment and any other mater of mutual interest between the parties - presumes a willingness by each party , not only to listen to and consider the representations of the other party, but also to abandon its own fixed positions where possible in order to find common ground 57. Discuss the bind- - one of the main functions of a bargaining council is to ing nature of a negotiate and conclude collective agreements on behalf collective agree- ment concluded by the bargaining council 58. Closed shop agreements 59. Agency shop agreements 60. Legal conse- quences faced when participat- ing in an unpro- tected strike 61. Discuss the re- quirement that a picket must be authorised by a registered trade union in order to be protected of its members - collective agreements concluded by a bargaining council are binding on: parties to the bargaining council who are also parties to the agreement parties to the council who are not parties to the agree- ment parties who are not members of the council and not parties to the agreement - concluded by a majority union and an employer or an employers organisations - concluded by way of a collective agreement - 2/3 of employees who voted must vote in favour of agreement - employer must deduct agreed subscription fee from the employees identified in the agreement - concluded by a majority union and an employer or an employers organisation - concluded by way of a collective agreement - employer must deduct agreed agency fee from the em- ployers identified in the agreement - interdict - compensation - dismissal for strikers - unregistered trade unions and employees acting on their own cannot authorise a picket - this is to ensure that trade unions take responsibility for the conduct of their members taking part in a picket - the authorization of a picket must be in accordance with the trade unions constitution - the authoritarian must be formed and in writing and must be accompanied by a resolution authorizing the picket - these documents should then be served on the employer before the commencement of a picket 62. Discuss the various ways by which trade unions may ac- quire organisa- tional rights 63. Doctrine of vicar- ious liability? 64. Employee's duty to render ser- vices to the em- ployer 65. 2 main functions - through collective agreement - through membership of a bargaining council - through strike action - through the section 21 procedure - an employer is liable for the unlawful or delictual acts of an employee performed during the course of business. - regulated by common law - based on the principle that the employer has to compen- sate those who suffer injury as a result of the wrongful conduct of its employees - protects third parties - primary duty of an employee is to place his labour poten- tial at the disposal of the employer - Includes the employers duty to enter and remain in the employer's service - employee who fails to enter and remain in the employer's service will not receive any remuneration from the employ- er 1. promote the interests of all employees in the workplace of a workplace fo- 2. enhance efficiency in the workplace rum 66. Describe con- structive dis- missal - where an employee resigns because the employer made continued employment intolerable for the employee - it was not done voluntarily - the employer's conduct made it impossible for the em- ployee to continue working for the employer 3 elements must be present 1. employee must show that he resigned 2. employee must show that the reason for the resignation was that continued employment became intolerable 3. employee must show that it was the employer's conduct that created the intolerable circumstances 67. Substantive equality - Recognizes that opportunities are determined by an individuals status as a member of a group. - Discriminatory acts are part of patterns of behaviors towards groups, which result in disadvantage for such groups - The prohibition of unfair discrimination itself is insufficient to achieve true equality and therefore affirmative action measures are required to correct imbalances where dis- advantage and inequality exist