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Merc Law S2 textbook summaries
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Chapters 4-8 Covered in S2
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CHAPTER 8 – DISPUTE RESOLUTION AND REMEDIESINTRODUCTION
• Collective bargaining mechanisms promote labour peace
• However, not all conflict can be prevented
• Remember: difference between rights and interest disputes
• LRA provide three ways to solve RIGHTS DISPUTES:
• 1. Conciliation: Bargaining Council or statutory council
• 2. CCMA
• 3. Private arbitration (by agreement between parties)
CONCILATION AND ARBITRATION
• Conciliation Fails?
• CCMA will then arbitrate:
• Result? Dispute is heard anew and will proceed immediately from conciliation
to arbitration
• Legal representation?
• Parties may testify, submit evidence, call and question witnesses, deliver
closing arguments
• Arbitration award by a Commissioner is final: within 14 days with reasons
• No appeal available, can be reviewed on the Labour Court
ARBITRATION: REVIEW
Review of the award is possible:
• In case of procedural irregularities (distinguish from an appeal):
• Misconduct by the Commissioner
• Gross irregularities in the conduct of the proceedings
• Exceeding the powers of the Commissioner
• Award obtained in an improper manner
• Standard of review (Sidumo case (Constitutional Court))
• Is the award one that a reasonable decision maker could not make
THE LABOUR COURT
Jurisdiction of the Court:
• Labour legislation gives exclusive jurisdiction to court in respect of certain matters
• Concurrent jurisdiction with High Courts
• Disputes where the state is the employer
• Disputes related to the BCEA and the employment contract
• High Courts retain common law jurisdiction over labour law matters,
especially where the employment contract (breach of contract) is concerned
• Appeal to the Labour Appeal Court
Powers of the Labour Court:
• Urgent interim relief (e.g. reinstatement)
• Interdicts
• Order that certain acts be performed
• Explanatory orders
• Award of compensation and damages
• Cost orders
• Labour Court has the power of review with respect to CCMA awards
LABOUR APPEAL COURT
• Highest court of appeal in labour law matters
• In relation to constitutional points - can approach Constitutional Court
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