UNIVERSITY EXAMINATIONS: UNIVERSITEITSEKSAMENS: UNISA le LLW2602 (498517) MaylJune 2013 COLLECTIVE LABOUR LAW Duration 2 Hours: 80 Marks: EXAMINERS - FIRST PROF AH DEKKER SECOND MR MK MATHIBA Closed book examination ‘This examination question paper remains the property of the University of South Africa and may not be removed from the examination venue ‘This paper consists of 9 pages plus instructions for completing a mark reading sheet, INSTRUCTIONS: 1 This paper consists of 9 pages and you have to answer ALL the questions. 2 The paper is divided into 2 sections: SECTION A consists of 2 questions (with subdivisions) and has to be completed in the answer books provided to you. SECTION A counts 40 marks. SECTION B consists of 20 multiple choice questions counting 2 marks each. The answers to the multiple choice questions have to be filled in on the mark reading sheet provided to you, SECTION B counts 40 marks, THE EXAM PAPER COUNTS 80 MARKS. Et At the end of the examination you have to hand in both the answer book and the mark reading sheet containing your answers io the multiple chorce questions 4.__ GOOD LUCK! We hope that you will do well. Please note: The Labour Relations Act is abbreviated as the “LRA”.2 LLW2602 MAY/JUNE 2013 SECTION A QUESTION 1 (a) Define collective labour law. 4) (b) Name five organisational rights and the level of representation required in order for a trade ‘union to acquire each of them, as provided by the LRA. (40) (©) Discuss the right of trade unions to conclude closed shop and agency shop agreements and the right of employees to freedom of association. © (d) What are the requirements that must be met for a secondary strike to be protected? 6) (5) QUESTION 2 AA Union a representative union at UNISA approaches UNISA management about a 10% increase in ‘the wages of its members. UNISA management offers the union only 7.5%. The parties fail to reach an agreement and the dispute is referred to the CCMA for conciliation. Within two weeks of the referral ona Monday morning the union informs the University management that because the University is not prepared to meet their demand its members will embark on a strike as from Tuesday morning. 2.1 Discuss whether the strike by members of AA Union will be protected. 6) 2.2 Assuming that the strike was unprotected, discuss the procedural requirements which must be met before employees who are engaged in such a strike may be dismissed. 6) 2.3. What are the legal consequences of participating in an unprotected strike? @) 2.4 Name two issues which may be considered as matters of mutual interest between employees and an employer. @ {15} TOTAL FOR SECTION A: 40 MARKS (TURN OVER}i LLW2602 MAY/JUNE 2013 SECTION B QUESTION 1 Which ONE of the following statements about organisational rights is CORRECT? 1 ‘An unregistered trade union that represents 55% of the employees in the workplace is entitled to access to the workplace, to the deduction of membership fees from the wages of members, to the election of shop stewards, to time off for union activities for shop stewards and to the disclosure of information. 2 A registered trade union that is merely sufficiently representative in a workplace, is entitled to access to the workplace and to the deduction of membership fees ftom the wages of its members. 3 An unregistered trade union that 1s a member of a bargaining council is entitled to access to the workplace and to the deduction of membership fees from the wages of its members. 4 Anunregistered minority trade union can obtain organisational rights by concluding a collective agreement with the employer. @ QUESTION 2 Which ONE of the following statements is INCORRECT? 1 ‘The difference between a strike and protest action is that a strike is aimed at resolving any issue of mutual interest between the employer and the employees, whereas protest action is aimed at socio-economic issues. 2 Because a dispute regarding organisational nghts is a dispute of right, it has to be referred for arbitration and adjudication, and employees may not strike regarding such issue 3 Employees who wish to strike do not need to be members of a registered trade union. 4 An employer is not obliged to pay employees who are participating in a protected or unprotected strike Q) QUESTION 3 ‘Consider the following types of information an employer will have at its disposal: A B Cc D private personal information of employees information that is relevant to the issues under discussion confidential information regarding the employer’s business information that is legally privileged Which of the above types of information does the employer NOT have to disclose to the union in the case of dismissal for operational reasons? 1 2 3 4 A,B, Cand D only C and D only A, Band C only A, Cand D Q [TURN OVER]4 LLW2602 MAY/TUNE 2013 QUESTION 4 Which ONE of the following is NOT a characterishee of a closed shop agreement between a trade union and an employer? 1 Itis entered into by way of a collective agreement by a majority trade union and an employer or employers’ organisation. 2 None of the employees who were in the employ of the employer or employers when the closed shop agreement was concluded, may be dismissed for refusing to joi the trade union which is party to the closed shop agreement, 3. The dismissal of conscientious objectors for their refusal to join the union, will be faur 4 Union subscription fees can only be used to advance the socio-economic interests of the union members and not for any political affiliation. Q) QUESTION 5 For which ONE of the following forms of industrial action does the union have to appoint a convenor and marshalls? 1 astrike 2 apicket 3 alock-out 4 protest action (2) QUESTION 6 Which ONE of the following statements regarding picketing as a form of industrial action is INCORRECT? 1 Picketing must always take place on the premises of the employer. 2 Apart from carrying placards and chanting slogans, picketers may also prevent service providers from entering the premises of the employer. 3 A picket can take place in support of any protected strike and any lock-out. 4 The purpose of a picket is to encourage non-striking employees and members of the public to support strikers involved in any strike @ [TURN OVER]+ LLW2602 MAY/TUNE 2013 QUESTION 7 Consider the following statements regarding the ecumstances under which a strike and lock-out may be prohibited and consequently unprotected: A ‘The employees of AC Processing and Packaging are dissatisfied about the dismissal of Samuel Matlala, a popular shop steward, who was found guilty of misconduct, and wish to strike to force AC Processing and Packaging to re-instate him. Standard Cable Manufacturers employs 130 employees, and due to a downturn in the economy it needs to scale down its operations and dismiss 15 employees for operational reasons The employees feel that the employer has no valid reason for dismssing them and therefore intend to strike agamst the employer’s decision. ‘The Hospitality and Entertainment Workers’ Union (HEWU) and Smart Hotel Group have concluded a collective agreement that employees of the hotel group who are members of the union will not resort to strike action if they are dissatisfied with their annual salary increases The employees are very upset at receiving only a 2% increase and wish to embark on a strike Members of the South Afncan Police Union vehemently oppose the deployment of the South African Armed Services at violent strikes around the country. They wish to strike to force the government to deploy them mstead In which of the above circumstances will the contemplated strikes be prohibited in terms of section 65 of the LRA? 1 only B,CandD 2 only A,BandC 3 only A,CandD 4 in none of the circumstances Q) QUESTION 8 ‘Which ONE of the following statements will complete the sentence CORRECTLY? ‘An employer faced with a protected strike can, Bune dismiss the striking employees for participating in the strike dismiss employees who are not striking for refusing to do the jobs of the protected strikers promise to pay a bonus to all those strikers who decide to return to work. dismiss the striking employees on the basis of operational requirements. Q [TURN OVER]6 LLW2602 MAY/JUNE 2013 QUESTION 9 In certain circumstances a strike will be protected even though the employees who wish to embark on the strike have not met the procedural requirements laid down mn the LRA. In which ONE of the following cases, however, will employees STILL be obliged to meet the procedural requirements laid down in the LRA? 1 The parties to the issue 1n dispute are members of a bargammng council and the issue in dispute has been dealt with by the council in accordance with its constitution. 2 The partes previously concluded a collective agreement, which spells out the requirements that must be met for strike action, and these requirements have, in fact, been met. 3 The employer acted first by locking out its employees without meeting the procedural requirements laid down in the LRA. 4 The strike is about orgamsational rights, the trade union has more than 75% of the employer’s workforce as its members and the union chooses not to use arbitration. Q) QUESTION 10 Which ONE of the following statements regarding the consequences of protected strike action, is INCORRECT? 1 In principle, the dismissal of an employee for participation in a protected strike will constitute an automatically unfair dismissal 2 An employee who participates in a protected strike may be dismissed for reasons relating to his or her conduct during the strike or for reasons based on the employer's operational requirements. 3 Although the “no work, no pay”-rule also applies to protected strikes, employers have to continue to provide accommodation and food during a protected strike (if this forms normally part of the remuneration) and if the employees request that it continues. 4 Ifa protected strike proves to be unsuccessful, the employer may afterwards sue the trade union for the damage it suffered as a result of the stnke action, Q) QUESTION 11 Which ONE of the following statements regarding agency shop agreements is INCORRECT? 1 Ageney shop agreements constitute much less of an infringement on an employee's nght to freedom of association than closed shop agreements, 2 Only a registered trade union, or two or more registered trade unions acting jointly, that represent the majority of employees in a workplace can conclude a binding agency shop agreement in respect of that workplace. 3A binding agency shop agreement can only be concluded if a ballot was conducted amongst all ‘employees likely to be affected by the agreement and two thirds of the employees who voted, voted in favour of the agreement 4 The agency fee may not be more than the subscriptions paid by the members of the trade union that is party to the agency shop agreement. Q) {TURN OVER]7 LLWw2602 MAY/UNE 2013 QUESTION 12 Which ONE of the following statements regarding lock-outs in general, is INCORRECT? aoe Itis possible in law to exclude one employee from the workplace In case of an offensive lock-out, an employer may not employ replacement labour A lock-out in response to an unprotected strike will be protected In order to constitute a lock-out as defined by the LRA, the exclusion of employees from the workplace by the employer must be accompanied by a demand conceming a matter of mutual interest. @) QUESTION 13 Which ONE of the following 1s a dispute of interest (as opposed to a dispute of right)? During consultations about retrenchments, the employer refuses to provide certain information to the trade union with which it consults, on the basis that the information is confidential and, if disclosed, could cause it substantial harm. During a strike, an employer offers to pay a bonus to all those employees who are out on stnike but who decide to return to work A registered trade union, which has more than 40% of the employer's workforce as its ‘members, approaches the employer and demands the right of access to the workplace and the night to deduction of union dues. ‘An employer who is going through a difficult time approaches the trade union active in the workplace and informs it that although employees are still entitled to their housing allowances, the employer is obliged to reduce these allowances by 50% for the next six months. The trade union informs the employer to try it and “see what happens”. Q QUESTION 14 Which ONE of the following statements about the definition of a strike is CORRECT? 1 Asstrike is the complete, but not partial, stoppage of work. 2 Anovertime ban will constitute a work stoppage. 3 Ago-slow is not a stnke. 4 Awork-to-rule does not amount fo a complete or partial stoppage of work. Q) QUESTION 15 Which ONE of the following demands is likely to be accepted by the Labour Court as a matter of ‘mutual interest between employers and employees and thus a suitable matter for collective bargaining? Bene a demand that the employer limits the amount of overtime worked at the plant ademand that the “pay as you eam”- taxes are reduced for certain workers a demand that the employer supports the bond repayment boycott by the employees a demand that the employer ensures that school fees are subsidised by the government (2) [TURN OVER}8 LLW2602 MAYAJUNE 2013 QUESTION 16 Which ONE of the following statements about the consequences of strike action is CORRECT? 1 Employees who take part in a protected strike can never be fairly dismissed. 2 Employees who take part in a protected strike must be heard before they can be dismissed for their participation in the strike. 3 Employees who take part in an unprotected strike can be dismissed if they do not adhere to the ‘employer's ultimatum. 4 Employees who take part in a protected strike will only forfeit their salanes if the strike becomes unprotected Q QUESTION 17 Which ONE of the following statements regarding access to the workplace as an organisational right is CORRECT? 1 Access to the workplace allows the unton to hold meetings with employees at the workplace in working hours 2 Access to the workplace does not allow for the voting of umon members at the employer's premises. 3 Access to the workplace allows the union to recruit members and serve the interest of members 4 Access to the workplace does not allow the trade union to enter the workplace Q) QUESTION 18 Which ONE of the following statements regarding the defimtion of a “strike” 1s CORRECT? 1 A single employee can embark on a strike since the Constitution of the Repubhe of South Africa grants the right to stnike to individual workers. 2 The action by employees who perform some of their duties, but refuse to perform all of them, will not constitute a strike. 3 The purpose of strike action must be to resolve a dispute regarding a matter of mutual interest between an employer and employees. 4 The word “work” in the definition of a strike only refers to overtime work which an employee 1s contractually obliged to do. @) ITURN OVER]9 LLW2602 MAY/JUNE 2013 QUESTION 19 Which ONE of the following statements regarding essential services is INCORRECT? 1 Parties involved in the provision of essential services can embark on a strike if there is an agreement that certain minimum services will be provided during the strike. 2 Anessential service is a service which, if interrupted, will have the effect of material physical destruction of a working area, plant or machinery 3 A dispute regarding the terms and conditions of employment of employees who provide minimum services, will be subject to arbitration. 4 Employees who are engaged in the provision of essential services may under no circumstance embark on a strike. Q) QUESTION 20 Which ONE of the following statements regarding secondary strikes is CORRECT? 1 2 3 A secondary strike will be protected even though the primary strike is not protected. Employees of a secondary employer must also be in dispute with their employer in order for the secondary strike to be protected The secondary employer must have received 48 hours prior written notice of the secondary strike in order for the secondary strike to be protected. 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