Unit 6

Question 1

What is dispute of rights?

Answer 1

• 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

Question 2

What is disputes of interest?

Answer 2

• 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

Question 3

Where does disputes of rights issues arise from?

Answer 3

• 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

Question 4

State the different types of dispute settlement method

Answer 4

• Mediation
• Arbitration
• Conciliation

Question 5

What is conciliation?

Answer 5

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

Question 6

What is arbitration?

Answer 6

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

Question 7

Discuss the impetus of conciliation

Answer 7

• Negotiations have failed
• Lack of new ideas
• Demand and offer miles apart
• 3rd party can bring parties closer
• Different legal interpretations

Question 8

Discuss the impetus of arbitration

Answer 8

• 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

Question 9

State the functions of conciliation

Answer 9

• 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

Question 10

State the functions of aribitration

Answer 10

• 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)

Question 11

What is the attributes of the facilitator in relation to conciliation?

Answer 11

• Listen
• Impartial
• Reliable
• Trust
• Creative
• Assertive
• Legal knowledge
• Chairing skills
• Patient
• Sense of humour

Question 12

What are the attributes of the facilitator in relation to artibitration?

Answer 12

• Control process
• Good listener
• Legal knowledge
• Impartial
• Independent
• Reliable
• No prejudice
• Can evaluate complex data
• Good writing skills, complete reports & awards in time