What is a dispute of right and what is a dispute of interest?
Labour disputes can be broadly classified into disputes of right and disputes of interest. Each involves a different procedure to process the dispute.
A right is something a person is entitled to (or has the right to) in terms of the common law, a collective agreement, a contract of employment, or labour legislation. Depending on the nature of the dispute, a dispute that is declared as a result of the infringement of a right has to be determined by arbitration (CCMA or Bargaining Council), or by adjudication (Labour Court) if no agreement is reached to resolve the matter in a conciliation hearing.
An interest is something, which a person wants, but is not entitled to yet. Interest disputes involve negotiation. In some instances, if agreement is not reached the parties involved may resort to power play in the form of strikes and lock-outs to achieve their interests.
Examples of issues that are disputes of right:
- Unfair dismissal disputes;
- Unfair labour practice disputes; and
- Severance pay disputes.
(In terms of the Constitution of the Republic of South Africa, 1996 and the Labour Relations Act 66 of 1995, employees have the right not to be unfairly dismissed and not to be subjected to unfair labour practices.)
Examples of issues that are disputes of interest:
- wage disputes – for example, a wage demand for a 10% increase; and
- a dispute over a change to terms and conditions of employment.
The LRA also includes a number of disputes where the dispute resolution procedures allow the applicants to elect to either refer their unresolved dispute to arbitration (or adjudication by the Labour Court in some instances) or to embark on industrial action.
Examples of disputes that may allow for either industrial action or arbitration/adjudication subject to certain conditions being in place:
- Large-scale retrenchments (substantively unfair); and
- Organisational rights disputes.
If an organisational rights dispute cannot be settled in conciliation, the dispute may be referred to arbitration. However, although an organisational rights dispute may be processed as a rights dispute, a union may instead choose to pursue it as an interest dispute. In other words, a union may choose to strike over an organisational rights claim.