Unit 6 Flashcards
What is dispute of rights?
- Exist if parties are in dispute due to different interpretations of the application of rights that are already defined in contracts, procedures, agreements or the law
- Existing rights
- Cannot strike over this dispute
- The court can have a verdict /Hof kan uitspraak maak
What is disputes of interest?
- Exist where 2 parties are involved in negotiations with a view to define rights
- Arise when no agreement on demand/ grievance can be achieved
- Potential rights
- Something you don’t have but want
- Can strike
- Court cannot deliver a verdict (uitspraak)
- If should the ER agree to the terms + write it in the contract the interest becomes a right
- It is not the right of the EE to have an end year bonus, it’s an interest
Where does disputes of rights issues arise from?
- The failure of 1 party to abide by the contract of employment
- Failure to implement legally determined conditions+ procedures (minimum working hours)
- Failure to implement the terms of a legally enforced agreement
- The non-implementation of a arbitration award/ wage determined
- Interference of freedom of association
- Transgression of common law
- A unilateral change in acceptance/ customary practice
- Codified unfair dismissals + unfair labour practices
State the different types of dispute settlement method
- Mediation
- Arbitration
- Conciliation
What is conciliation?
The act of procuring goodwill or inducing a friendly feeling:
* Undertaken by a 3rd party (may be part of CCMA)
* same as marriage councillor
* cannot make any decisions, or proposals regarding this matter (can’t say who is right or wrong)
* can try to convince them to come up with their own solution
* cannot bring along lawyers
* no recording or record
* anything said and done in this process cannot be mentioned in the next process
What is arbitration?
Appointment of 3rd party to act as adjudicator in dispute + to decide on the terms of the settlement (final decision)
* doesn’t promote negotiation
* 3rd party: takes the role of decision maker
* Individuals may submit their individual proposals, but final decision is 3rd party’s
* Settlement becomes binding
* Formal process
* Can take a lawyer
* Happens After conciliation
Discuss the impetus of conciliation
- Negotiations have failed
- Lack of new ideas
- Demand and offer miles apart
- 3rd party can bring parties closer
- Different legal interpretations
Discuss the impetus of arbitration
- Mostly disputes of rights
- Discontinues dispute, may not resolve conflict
- Dismissal
- About unfair labour practices
- About organisational rights
- About CA (collective agreements)
- No appeal can take on review in LC
State the functions of conciliation
- Clarify + improve communication
- Release tension
- Fact finding + find real interest of parties
- Alternative solutions
- Realistic view of power balance
- Non-binding
- Offers + counter offers
- Advice + agreements are drafted
- Legitimate
State the functions of aribitration
- Parties promote and defend rights
- Fair hearing
- Time frames
- Binding dispute resolution mechanism
- Avoid labour unrest
- Development of jurisprudence (commissioner makes a decision on a case and every other similar case is binding to the same decision)
What is the attributes of the facilitator in relation to conciliation?
- Listen
- Impartial
- Reliable
- Trust
- Creative
- Assertive
- Legal knowledge
- Chairing skills
- Patient
- Sense of humour
What are the attributes of the facilitator in relation to artibitration?
- Control process
- Good listener
- Legal knowledge
- Impartial
- Independent
- Reliable
- No prejudice
- Can evaluate complex data
- Good writing skills, complete reports & awards in time
