PEMA5122 Exam Notes
PEMA5122 Exam Notes
PEMA5122 Exam Notes
Q.4.2 “Employees have stronger protection with regards to their right to strike
than employers who only have recourse to a lock out.” Discuss this statement
with reference to the right to strike and lock outs.
The statement suggests that employees generally have more legal protection when it
comes to their right to strike compared to employers' ability to initiate a lockout. The
right to strike is recognized as a fundamental labour right in many jurisdictions and is
often protected by labour laws and international conventions. Employees have the
right to engage in collective bargaining and use strikes as a tool to advance their
interests.
On the other hand, employers have the option of using a lockout, which is the
temporary closure of a workplace or the withholding of work from employees during
a labour dispute. However, lockouts are subject to more restrictions and legal
scrutiny compared to strikes. In many jurisdictions, employers must demonstrate that
a lockout is a reasonable response to a labour dispute and that it is not being used to
undermine the employees' right to strike.
Overall, while both strikes and lockouts are tools used in labour disputes, employees
generally have stronger legal protection for their right to strike, ensuring their ability
to collectively bargain and negotiate with employers.
Q.4.3 Should the above strike in the extract be declared an unprotected strike,
explain the following to the striking employees:
Protected strikes are those that comply with the legal requirements and procedures
set out in labour laws. These strikes enjoy certain legal protections, such as
immunity from disciplinary action or dismissal. On the other hand, unprotected
strikes are those that do not meet the legal requirements and may be subject to
disciplinary action or other consequences.
2. Legality: Protected strikes are lawful and recognized by labour laws, while
unprotected strikes are considered unlawful or illegal.
3. Liability for damages: Employees may be held liable for any damages caused
by the unprotected strike, such as financial losses incurred by the employer or
third parties.
Q.4.4 Explain to the striking employees the procedure that must be followed
for there to be a protected strike.
To have a protected strike, employees must follow certain procedures as outlined by
labour laws. The specific procedures may vary depending on the jurisdiction, but
generally include the following steps:
5. Strike certificate: If the above steps are followed and the requirements are
met, the relevant authority may issue a strike certificate, confirming that the
strike is protected under the law.
By following these procedures, employees can ensure that their strike is legally
protected, providing them with certain rights and protections during the labour
dispute.
A secondary strike refers to a situation where workers from one union go on strike in
support of another union's strike. It occurs when workers who are not directly
involved in a labour dispute decide to join the strike action to show solidarity and put
additional pressure on the employer.
Here's an example to illustrate how a secondary strike comes about:
Facts:
2. Union B represents workers at a car assembly plant that uses the parts
produced by the manufacturing company.
5. Union B, in solidarity with Union A, decides to join the strike and support their
cause.
6. The workers from Union B refuse to work, effectively shutting down the car
assembly plant.
In this example, the primary strike is initiated by Union A, which represents the
workers at the manufacturing company. However, Union B, representing workers at
the car assembly plant, decides to participate in the strike as well. This secondary
strike by Union B is aimed at putting additional pressure on the manufacturing
company to meet the demands of Union A.
By joining the strike, Union B demonstrates solidarity with Union A and shows that
they are willing to take collective action to support their fellow workers. The
secondary strike can have a significant impact on the employer's operations, as it
disrupts the production process and increases the economic costs of the labour
dispute.
It is important to note that the legality of secondary strikes varies across jurisdictions.
Some countries may prohibit or restrict secondary strikes, considering them as
unlawful or unfair labour practices. Therefore, it is crucial for unions to understand
the legal framework governing secondary strikes in their respective jurisdictions
before engaging in such actions.
Question:
• Identify any four persons who are excluded from the application of COIDA.
• Discuss the requirements that must be met in order to qualify to claim from
the Commissioner under COIDA.
The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)
is a South African legislation that aims to provide compensation and support to
employees who suffer injuries or contract diseases as a result of their work. The
main objectives of COIDA are as follows:
While COIDA covers most employees, there are certain categories of individuals who
are excluded from its application. Four persons who are excluded from the
application of COIDA are:
To qualify for compensation under COIDA, certain requirements must be met. These
include:
It is important for employees to understand their rights and obligations under COIDA
to ensure they receive the compensation they are entitled to in case of work-related
injuries or diseases.
Questions:
Q.6.1 Discuss any five duties of an employee as they relate to health and
safety in the workplace.
Employees have several duties related to health and safety in the workplace. Here
are five important ones:
1. Complying with Policies and Procedures: Employees must follow all health
and safety policies and procedures established by their employer. This
includes using personal protective equipment, following safe work practices,
and reporting any hazards or incidents.
Q.6.2 Explain any five functions of the health and safety representative in the
workplace.
Health and safety representatives play a crucial role in promoting and maintaining a
safe work environment. Here are five functions they typically perform:
Mediation:
• The mediator does not make a decision or impose a solution but helps the
parties reach a mutually acceptable agreement.
• The focus is on finding a resolution that satisfies the interests and needs of
both parties.
Arbitration:
• Arbitration is a more formal process where a neutral third party, the arbitrator,
is appointed to make a binding decision on the dispute.
• The arbitrator acts as a judge and renders a decision after considering the
evidence and arguments presented by both parties.
• The focus is on determining the rights and obligations of the parties based on
applicable laws or contractual agreements.
• Arbitration can be less formal and more streamlined than court proceedings,
but the decision is legally binding and enforceable.
• The arbitrator's role is to hear the evidence, apply the law, and make a final
decision that resolves the dispute.
Q.7.1 Cecilia is 9 months pregnant, and she will be taking unpaid maternity
leave for 4 months.
Cecilia would be entitled to claim the following benefits under the Unemployment
Insurance Act 63 of 2001 (UIA):
1. Maternity Benefits: Cecilia can claim maternity benefits for the duration of her
unpaid maternity leave. These benefits are provided to support her financially
during this period.
Samantha and Samuel would be entitled to claim the following benefits under the
Unemployment Insurance Act 63 of 2001 (UIA):
1. Adoption Benefits: Samantha and Samuel can claim adoption benefits for the
period they take off work to care for the newborn baby, Sammy. These
benefits are provided to support them financially during this period.
Q.7.3 Harriet is diagnosed with Tuberculosis (TB) and she has been critically ill
for 4 weeks.
Harriet would be entitled to claim the following benefits under the Unemployment
Insurance Act 63 of 2001 (UIA):
1. Illness Benefits: Harriet can claim illness benefits for the period she is unable
to work due to her critical illness. These benefits are provided to support her
financially during this period.
Q.7.4 Michael is the breadwinner in his family. Michael passed away and left
behind two dependants, Michaela, and Michael Jr.
Michael's dependants, Michaela, and Michael Jr., would be entitled to claim the
following benefits under the Unemployment Insurance Act 63 of 2001 (UIA):
Melody would be entitled to claim the following benefits under the Unemployment
Insurance Act 63 of 2001 (UIA):
The Occupational Health and Safety Act 83 of 1993 (or OHASA) was instituted
in South Africa to make sure that company management set up safety
representatives and safety committees in the workplace. The Act also gives
health and safety guidelines on more regular, day-to-day workplace facilities
like toilets, change rooms, first aid kits, fire precautions, adequate ventilation,
proper lighting, temperature and more.
Q.8.1 Leon runs a labour broking company called “Genesis”. The company,
among other functions, helps clients to develop their long-term staffing
strategies and to secure the employees best qualified to meet their
requirements. Leon has heard of OHASA but is not sure if it applies to him.
Explain to Leon the following:
• the instances when OHASA would not apply to an employer; and • whether
OHASA applies to Leon ’s company. (10)
NOTE: 8 marks are to be allocated for content and 2 marks are to be allocated
for the skill that you use to answer this question.
The Occupational Health and Safety Act 83 of 1993 (OHASA) applies to all
employers and employees in South Africa, regardless of the industry or sector. Its
purpose is to ensure the health and safety of workers in the workplace. Therefore,
OHASA is generally applicable to all employers, including Leon's company,
"Genesis."
While OHASA generally applies to all employers, there are a few instances when it
may not apply:
1. Domestic workers: OHASA does not apply to employers who employ
domestic workers in private households. However, employers are still
encouraged to provide a safe working environment for domestic workers.
Since Leon's company, "Genesis," helps clients develop staffing strategies and
secure qualified employees, it is likely that OHASA applies to his company. OHASA
covers all employers, regardless of their specific functions or services. Therefore,
Leon should ensure that his company complies with OHASA's health and safety
requirements to provide a safe working environment for his employees and clients.
Philip's thinking about the roles and responsibilities of a health and safety
representative is partially correct, but there are some misconceptions. While the
health and safety representative does have certain powers and responsibilities, they
do not have the authority to attend disciplinary hearings or participate in all senior
management meetings.
The main function of a health and safety representative is to represent the interests
of the employees in matters relating to health and safety in the workplace. This
includes:
However, it is important to note that the health and safety representative does not
have the authority to attend disciplinary hearings or make decisions on behalf of
employees. Their role is to advocate for health and safety measures and represent
the employees' interests in those matters.
In terms of the law, the Occupational Health, and Safety Act (OHSA) in South Africa
governs the roles and responsibilities of health and safety representatives. It is
important for Philip to familiarize himself with the specific provisions of the OHSA to
fully understand his rights and obligations as a health and safety representative.
NOTE: 8 marks are to be allocated for content and 2 marks are to be allocated
for your skill of applying the law to the facts
An employer is required to establish a health and safety committee when they have
a certain number of employees or when requested by the employees. The specific
requirements for establishing a health and safety committee may vary depending on
the jurisdiction, but generally, it is required when there are a certain number of
employees, such as 20 or more.
The frequency of health and safety committee meetings may vary depending on the
jurisdiction and the specific needs of the workplace. However, it is generally
recommended that the committee meets at least once every three months. This
allows for regular discussions and updates on health and safety matters, as well as
the opportunity to address any emerging issues or concerns. It is important for the
committee to establish a regular meeting schedule and ensure that all members
attend and actively participate in the meetings. Additionally, the committee should
also hold additional meetings as needed, especially in response to any urgent health
and safety issues that may arise.
Question:
• Discuss any five benefits provided for by the UIA. In your answer, you are
also required to explain the circumstances under which one could claim those
benefits (10 marks).
NOTE: 20 marks are to be allocated for content and 5 marks are to be allocated
for skill
The Unemployment Insurance Act 63 of 2001 (UIA) in South Africa aims to provide
temporary financial relief to workers who become unemployed, as well as to promote
social security and reduce poverty. The main purposes of the UIA are:
1. Income Support: The UIA aims to provide income support to workers who
have lost their jobs involuntarily, ensuring they have a basic level of financial
security during their period of unemployment.
3. Social Security: The UIA aims to contribute to the overall social security of
workers by providing them with a safety net in case of unemployment,
reducing the risk of falling into poverty.
The Unemployment Insurance Fund (UIF) is a public fund established under the UIA.
It is managed by the South African government's Department of Employment and
Labour. The UIF is funded through contributions made by both employers and
employees. The fund serves as a pool of resources from which eligible individuals
can claim unemployment benefits.
To be entitled to claim from the UIF, individuals must meet certain criteria:
3. Registration: Individuals must be registered with the UIF and have a valid
UIF reference number. This can be obtained by completing the necessary
registration forms and submitting them to the UIF.
The UIA provides various benefits to eligible individuals. Five of these benefits, along
with the circumstances under which they can be claimed, are:
2. Illness Benefits: Individuals who are unable to work due to illness or injury
can claim illness benefits. These benefits provide temporary financial support
during the period of illness or injury.
5. Dependants' Benefits: Individuals who are the sole breadwinners and have
dependants can claim dependants' benefits in the event of their death. These
benefits provide financial support to the dependants left behind.
It is important to note that each benefit has specific eligibility criteria and
requirements that must be met in order to claim them. Individuals should consult the
UIA and relevant regulations for detailed information on each benefit and the
circumstances under which they can be claimed.
Overall, the UIA aims to provide a safety net for workers in South Africa, offering
temporary financial relief during periods of unemployment, illness, maternity,
adoption, and in the event of the breadwinner's death.