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Chapter 11 Dispute Resolution

Learning ObjectivesDifferentiate between conflict and dispute, as well as

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Chapter 11 Dispute Resolution

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    1. Chapter 11 Dispute Resolution

    2. Learning Objectives Differentiate between conflict and dispute, as well as “dispute of right” and “dispute of interest” Understand the dispute resolution process under the LRA Describe the broad purposes and functions of the CCMA Differentiate between conciliation, mediation and arbitration Understand the binding nature of arbitration and the possibilities for review of an award Consider alternatives to the CCMA for dispute resolution Understand the purpose of the Labour Court and Labour Appeal Court

    3. 11.2 Concept & nature of labour disputes Conflict versus dispute Dispute of right Dispute of interest Process for handling each category of dispute – TEXT pg 418

    4. 11.4 Dispute resolution under the Labour Relations Act 66 of 1995 The Commission for Conciliation, Mediation and Arbitration (CCMA) Independent body Commissioners Main functions of the CCMA – TEXT pg 420 Disputes that may be referred to the CCMA: - Any matter of mutual interest - Some matters can only be conciliated by CCMA, and if unsuccessful must proceed to Labour Court.

    5. 11.4 Dispute resolution under the Labour Relations Act 66 of 1995 Process: TEXT pg 422 (Fig 11.2)

    6. CONCILIATION: Neutral third party attempts to help parties resolve their differences - chair meeting - help parties to define positions - sum up arguments CCMA has 30 days, or longer by agreement (from date of referral of dispute) to attempt to solve dispute via conciliation If no resolution, next stage (arbitration / Labour Court / strike – depending on nature of dispute)

    7. MEDIATION: “Active intervention of a neutral third party who assists parties in achieving a mutually agreeable outcome through the facilitation of open and constructive dialogue” More proactive involvement by third party than in conciliation CCMA: actual process more like mediation

    8. ARBITRATION: Direct intervention of a neutral third party (arbitrator) Conducts a fair hearing & considers evidence and argument Final and binding decision - arbitration award (status of a court order)

    9. COMPULSORY ARBITRATION: In terms of a collective agreement or as required by the LRA VOLUNTARY ARBITRATION: In a matter not falling under the above, where conciliation has failed, any party to the dispute may refer the matter on for arbitration

    10. Review of CCMA arbitration awards No appeal Review (by Labour Court) possible: Misconduct /gross irregularity by commissioner Commissioner exceeded powers Award improperly obtained

    11. Alternative Procedures via the CCMA: Conciliation-Arbitration (Con-Arb) Pre-dismissal arbitration

    12. CCMA’s challenges: See TEXT pg 426 (problems & reasons for high referral rates)

    13. Other institutions conducting conciliation /mediation/arbitration: Bargaining Councils Private dispute resolution bodies (e.g. TOKISO)

    14. Labour Court Functions – TEXT pg 431 Labour Appeal Court Labour Court decisions/judgements taken on appeal Decide on question of law referred by Labour Court

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