Statutory conciliation as a labour-dispute-resolution mechanism
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
A comparative study of the Ugandan and South African labour dispute resolution systems
- Authors: Ninsiima, Diana
- Subjects: Labor disputes -- Uganda , Labor disputes -- South Africa , Labor -- Law and legislation -- Uganda , Labor -- Law and legislation -- South Africa , Industrial relations -- Uganda , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9437 , http://hdl.handle.net/10948/d1020908
- Description: The purpose of the study is to compare the dispute resolution systems of Uganda and South Africa. The historical developments of both systems were discussed so as to understand the factors that contributed to their growth or demise. From the study, it is clear to see that the Ugandan system’s development has been greatly affected with every regime change, between 1894 to the present. The developments that were tackled are closely related to various historical and political phases through which Uganda has passed and these significant periods are 1894- 1962 (pre-independence), 1962-1971 (Obote 1), 1971-1979 (Amin), 1980-1985 (Obote II), 1986- 2006 (NRM) and 2006 to the present Multi-party system. The South African system on the other hand is divided into four eras with the first one beginning from 1870 to 1948, the second era from 1948 to 1979, the third from 1979-1994 and the last era from 1994 to the present date. The South African system has been greatly influenced by the past government’s move to create a dual system of labour relations that was eventually removed. The two systems were compared using a framework created basing on literature by ILO (2013), Brand, Lotter, Mischke, & Steadman (1997) and Thompson (2010). The framework for comparison outlines the elements of a dispute resolution which include the nature of the dispute, coverage, processes, avenues and human resources. It further presents the criteria and possible indicators to evaluate the performance of the system which are legitimacy, efficiency, informality, affordability, accessibility, a full range of services, accountability and resources. The comparison highlighted the various differences between both countries. The study established differences in the nature of disputes as the Ugandan system does not differentiate between the different types of dispute unlike the South African system which differentiates them and has different avenues for their settlement, the fact that the South African system has a number of avenues to cater to the different types of disputes unlike the Ugandan system which only has one route beginning with the Labour officers and the Industrial court if unresolved. An evaluation of the performance of both systems brought to light the number of changes the Ugandan system has to undergo so as to meet the expectations of the International Labour Organisation and have an effective system. The South African system proves to be more legitimate, efficient, informal, affordable, and accessible than the Ugandan system. Further still the South African system provides a full range of services is more accountable and has enough resources when compared with the Ugandan system. Recommendations have been proposed at the end of the study, mainly for the Ugandan system as the South African system appears to be more advanced and more effective in dispute resolution by international standards. The recommendations suggested are creating an independent dispute resolution system, mass sensitisation on labour rights, accreditation of private agencies, create a separate dispute resolution system for the informal sector, proper routing of disputes, creation of an independent body to monitor the national system, encouraging the creation of more democratic workplaces, re-establish the industrial court and finally, employing and training more labour officers.
- Full Text:
- Authors: Ninsiima, Diana
- Subjects: Labor disputes -- Uganda , Labor disputes -- South Africa , Labor -- Law and legislation -- Uganda , Labor -- Law and legislation -- South Africa , Industrial relations -- Uganda , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9437 , http://hdl.handle.net/10948/d1020908
- Description: The purpose of the study is to compare the dispute resolution systems of Uganda and South Africa. The historical developments of both systems were discussed so as to understand the factors that contributed to their growth or demise. From the study, it is clear to see that the Ugandan system’s development has been greatly affected with every regime change, between 1894 to the present. The developments that were tackled are closely related to various historical and political phases through which Uganda has passed and these significant periods are 1894- 1962 (pre-independence), 1962-1971 (Obote 1), 1971-1979 (Amin), 1980-1985 (Obote II), 1986- 2006 (NRM) and 2006 to the present Multi-party system. The South African system on the other hand is divided into four eras with the first one beginning from 1870 to 1948, the second era from 1948 to 1979, the third from 1979-1994 and the last era from 1994 to the present date. The South African system has been greatly influenced by the past government’s move to create a dual system of labour relations that was eventually removed. The two systems were compared using a framework created basing on literature by ILO (2013), Brand, Lotter, Mischke, & Steadman (1997) and Thompson (2010). The framework for comparison outlines the elements of a dispute resolution which include the nature of the dispute, coverage, processes, avenues and human resources. It further presents the criteria and possible indicators to evaluate the performance of the system which are legitimacy, efficiency, informality, affordability, accessibility, a full range of services, accountability and resources. The comparison highlighted the various differences between both countries. The study established differences in the nature of disputes as the Ugandan system does not differentiate between the different types of dispute unlike the South African system which differentiates them and has different avenues for their settlement, the fact that the South African system has a number of avenues to cater to the different types of disputes unlike the Ugandan system which only has one route beginning with the Labour officers and the Industrial court if unresolved. An evaluation of the performance of both systems brought to light the number of changes the Ugandan system has to undergo so as to meet the expectations of the International Labour Organisation and have an effective system. The South African system proves to be more legitimate, efficient, informal, affordable, and accessible than the Ugandan system. Further still the South African system provides a full range of services is more accountable and has enough resources when compared with the Ugandan system. Recommendations have been proposed at the end of the study, mainly for the Ugandan system as the South African system appears to be more advanced and more effective in dispute resolution by international standards. The recommendations suggested are creating an independent dispute resolution system, mass sensitisation on labour rights, accreditation of private agencies, create a separate dispute resolution system for the informal sector, proper routing of disputes, creation of an independent body to monitor the national system, encouraging the creation of more democratic workplaces, re-establish the industrial court and finally, employing and training more labour officers.
- Full Text:
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