Every Employer Needs Labour Law Expertise
South African labour law is a minefield riddled with endless hidden dangers. That is, there are numerous labour acts, regulations, codes and determinations that are mainly focussed on protecting employees. Some of these provisions are so incomplete or vague that they are often interpreted very differently by the arbitrators and judges appointed to implement them.
All of this means that, as with income tax laws and actuarial science, the untrained layperson cannot be expected to understand and implement labour legislation or to travel through the jungle of labour case law without a guide. The only guide qualified to lead employers through this perilous and harsh terrain is a labour law expert with a track record of experience in labour law. The question is, how do you distinguish a true labour law expert from one who will give you the wrong advice, half-baked training and failed litigation? We are frequently called in to fix up such messes but sometimes too much damage has been done to save the employer from serious losses. The solution is therefore not in the cure but in prevention. That is, every employer needs to have available, at short notice, a labour law advisor who can help to ensure that the employer does not fall prey to the jungle’s pitfalls all the time. However, it is extremely difficult to find and choose a labour expert who suits your needs and who knows what he/she is doing because:
• The lay business person may know enough about the law to assess whether the so-called specialist truly is a labour law expert. • There are a great many so-called labour experts around. • The brochures and other promotional materials you receive may look impressive but could be exaggerated. • The fee may be so low that it could tempt you to use the consultant. With all these pitfalls it is extremely difficult to choose a labour representative who will keep you out of trouble rather than land you in it! There are a number of reputable and highly competent labour law experts in South Africa. The question is, how does the businessperson fight his/her way through the jungle of misinformation to find the right expert? A number of guidelines in this regard can be useful. Try to ensure that the labour expert you choose: • Has a tertiary qualification in the labour relations field • Has substantial experience as a labour law consultant or labour lawyer • Has a solid, hands-on background in corporate industrial relations • Is closely affiliated to a business labour forum through which he/she can keep in touch with the latest developments in the industry, in trade union activity and in labour legislation • Shows his/her updated knowledge of labour relations via publications, speaking at conferences and the presentation of seminars • Has quick access to the latest labour statutes and to case law decisions • Charges a fee that is affordable but not suspiciously low • Is willing to share his/her knowledge via in-house training courses for your managers rather than trying to make you dependent on him/her • Provides the full spectrum of labour law/industrial relations services as a comprehensive service rather than fragmented assistance. The services that should be offered include: • o Chairing of disciplinary hearings o Representation of employers at CCMA and bargaining councils o Labour relations consultation, labour litigation and legal advice o Industrial relations and human resources policy development o Review and drafting of employment contracts o Retrenchment, restructuring and rightsizing o Negotiating and drafting union recognition agreements o Union wage negotiations and strike handling o Writing of legal opinions on all Labour Law and IR/HR matters o Conducting of IR audits o Implementation of employment equity o Mentoring of HR/IR executives, managers, officers and trainee HR/IR professionals Choosing the wrong expert is like using a blind guide. So, don’t enter the minefield until you have an expert who can see and deal with the dangers.
by Ivan Israelstam