Workplace forums in terms of the labour relations act 66 of 1995
- Authors: Pather, Sivalingam
- Date: 2007
- Subjects: Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10229 , http://hdl.handle.net/10948/845 , Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Description: The promulgation into law of the concept of workplace forums has been beset with immense criticism and opposition from organized labour and some quarters of organized business. Last ditch efforts by the Ministerial Task Team had won the day for the inclusion of this controversial provision in the new Labour Relations Act.1 Commentators on the Act tend to agree that the fallout with organized labour at the negotiations has probably set the scene as to whether the provisions would be widely used or not. History has shown that the establishment of such forums in workplaces has been low. In some situations where workplace forums had been established, their continuous sustainability was put into doubt. This has led to the de-establishment of some of these forums in some workplaces. Various reasons were provided, but the prime factors for its failure could be traced back to the negotiations at NEDLAC. The unions opposed the original proposal by government that minority unions and even non-union employees can trigger the establishment of a workplace forum and insisted that this be restricted to majority unions. The voluntary nature regarding the establishment of a workplace forum and the trigger that only a majority union can invoke the provisions has still seen unions reluctant to utilize the provisions since it did not serve their purpose. The aims of the provisions, namely to increase workplace democracy, was therefore thwarted in favour of more informal procedures. Although the idea is a noble one, it is argued that the introduction of the provisions was ill-timed and inappropriate. The lesson that the legislature can take is that for any provision to be a success, buy-in from all stakeholders is paramount. Research has shown that there was a steady decline in the establishment of workplace forums. Since December 2004 there was not a single application received by the Commission for Conciliation, mediation and Arbitration. There is also doubt as to whether any of the Forums that were previously established are still functional. What is certain is that statutory workplace forums is not at the forefront as a vehicle for change that was envisaged in the Explanatory Memorandum that accompanied the new Labour Relations Act. What is also certain is that employers and employees are utilizing other forums to ensure workplace participation. These forums, however, only provide a voice to unionized workers. The vast majority of non-union workers remain voiceless. The proposed amendments in 2002 that intimated that the trigger be any union and not only majority unions failed to be passed into law. Perhaps it is that type of catalyst that is required to give life to the provisions. The future of workplace forums in South Africa is bleak and will continue to be if there is no intervention by the parties at NEDLAC to revive it. A complete revamp of the legislation would be required for such a revival. Some commentators have made meaningful suggestions on changes that can be made to the legislation to make workplace forums more attractive. Some have suggested it be scrapped altogether and future workplace participatory structures should be left to the parties to embrace voluntarily. Workplace forums are a novel innovation with great potential to encourage workplace democracy. There is nothing wrong with the concept. The application of such forums in the South African context is what is concerning. Perhaps prior experience and experimentation with similar type forums have tarnished workplace participation. The strategies by the previous regime and some employers have caused such participation to equate to co-option. Perhaps not enough spade work was done to ensure that the climate and attitude of the parties was conducive for its introduction. What is paramount no matter the form it takes is that workplace participation is crucial for economic growth and the introduction of new work methods to improve productivity. Without the establishment of such forums, whether voluntary or statutory, the ‘second channel principle’ that promotes non-adversarial workplace joint decision-making would be lost and conflict based participation could spiral leading to economic disaster.
- Full Text:
- Date Issued: 2007
- Authors: Pather, Sivalingam
- Date: 2007
- Subjects: Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10229 , http://hdl.handle.net/10948/845 , Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Description: The promulgation into law of the concept of workplace forums has been beset with immense criticism and opposition from organized labour and some quarters of organized business. Last ditch efforts by the Ministerial Task Team had won the day for the inclusion of this controversial provision in the new Labour Relations Act.1 Commentators on the Act tend to agree that the fallout with organized labour at the negotiations has probably set the scene as to whether the provisions would be widely used or not. History has shown that the establishment of such forums in workplaces has been low. In some situations where workplace forums had been established, their continuous sustainability was put into doubt. This has led to the de-establishment of some of these forums in some workplaces. Various reasons were provided, but the prime factors for its failure could be traced back to the negotiations at NEDLAC. The unions opposed the original proposal by government that minority unions and even non-union employees can trigger the establishment of a workplace forum and insisted that this be restricted to majority unions. The voluntary nature regarding the establishment of a workplace forum and the trigger that only a majority union can invoke the provisions has still seen unions reluctant to utilize the provisions since it did not serve their purpose. The aims of the provisions, namely to increase workplace democracy, was therefore thwarted in favour of more informal procedures. Although the idea is a noble one, it is argued that the introduction of the provisions was ill-timed and inappropriate. The lesson that the legislature can take is that for any provision to be a success, buy-in from all stakeholders is paramount. Research has shown that there was a steady decline in the establishment of workplace forums. Since December 2004 there was not a single application received by the Commission for Conciliation, mediation and Arbitration. There is also doubt as to whether any of the Forums that were previously established are still functional. What is certain is that statutory workplace forums is not at the forefront as a vehicle for change that was envisaged in the Explanatory Memorandum that accompanied the new Labour Relations Act. What is also certain is that employers and employees are utilizing other forums to ensure workplace participation. These forums, however, only provide a voice to unionized workers. The vast majority of non-union workers remain voiceless. The proposed amendments in 2002 that intimated that the trigger be any union and not only majority unions failed to be passed into law. Perhaps it is that type of catalyst that is required to give life to the provisions. The future of workplace forums in South Africa is bleak and will continue to be if there is no intervention by the parties at NEDLAC to revive it. A complete revamp of the legislation would be required for such a revival. Some commentators have made meaningful suggestions on changes that can be made to the legislation to make workplace forums more attractive. Some have suggested it be scrapped altogether and future workplace participatory structures should be left to the parties to embrace voluntarily. Workplace forums are a novel innovation with great potential to encourage workplace democracy. There is nothing wrong with the concept. The application of such forums in the South African context is what is concerning. Perhaps prior experience and experimentation with similar type forums have tarnished workplace participation. The strategies by the previous regime and some employers have caused such participation to equate to co-option. Perhaps not enough spade work was done to ensure that the climate and attitude of the parties was conducive for its introduction. What is paramount no matter the form it takes is that workplace participation is crucial for economic growth and the introduction of new work methods to improve productivity. Without the establishment of such forums, whether voluntary or statutory, the ‘second channel principle’ that promotes non-adversarial workplace joint decision-making would be lost and conflict based participation could spiral leading to economic disaster.
- Full Text:
- Date Issued: 2007
Substantive equality and affirmative action in the workplace
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
The perceptions of educators, in the Queenstown education district, of the labour dispute resolution system
- Authors: Rataza, Themba Theophilus
- Subjects: Labor disputes -- South Africa -- Queenstown , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9434 , http://hdl.handle.net/10948/d1020542
- Description: The objective of this study is to conduct a survey concerning the perceptions of educators in the Queenstown education district of the labour dispute resolution system. The education department is one of the biggest departments in the Eastern Cape’s Provincial Administration system. The likelihood of disputes is high when there are many employees. The focus of the study therefore is on how educators perceive the role of the department in terms of ensuring that labour disputes with the department are resolved efficiently and speedily. The advent of a democratic dispensation resulted in the ushering in of progressive labour legislation such as Labour Relations Act 55 of 1995. The objective of this Act is to facilitate economic development, social justice, labour peace and democratization of the workplace. In other words this Act gave birth to the manner in which labour disputes should be resolved. The study was carried out not only to explore the perceptions of educators but also with a view to making recommendations on the findings in order to help contribute towards labour peace and productivity in the workplace. The attitudes of one hundred and forty-one educators were surveyed via questionnaires and six educators who have had labour disputes with the department were interviewed. The key findings of the study revealed that both the educators who were surveyed and those interviewed lack confidence in the effectiveness of the labour dispute procedures in the district; they perceive the system as being inaccessible to them; time taken to resolve disputes is too lengthy; the system lacks necessary independence from the department of education or government and the department is seen as not adhering to its own policies and legislation. Hence there are many disputes and there is a great need for more awareness and for improved training in handling labour dispute resolution systems for district officials and educators. The study recommends more awareness and training sessions for both district officials responsible for labour relations and educators at large. It also calls for an increasingly proactive role by teacher unions in partnership with the department of education to avoid labour disputes. Although the findings cannot be generalized toother districts of the province, they do however highlight critical areas in labour dispute resolution where attention can be paid and focus made in order to ensure labour peace in the workplace for improved productivity and effective teaching and learning.
- Full Text:
- Authors: Rataza, Themba Theophilus
- Subjects: Labor disputes -- South Africa -- Queenstown , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9434 , http://hdl.handle.net/10948/d1020542
- Description: The objective of this study is to conduct a survey concerning the perceptions of educators in the Queenstown education district of the labour dispute resolution system. The education department is one of the biggest departments in the Eastern Cape’s Provincial Administration system. The likelihood of disputes is high when there are many employees. The focus of the study therefore is on how educators perceive the role of the department in terms of ensuring that labour disputes with the department are resolved efficiently and speedily. The advent of a democratic dispensation resulted in the ushering in of progressive labour legislation such as Labour Relations Act 55 of 1995. The objective of this Act is to facilitate economic development, social justice, labour peace and democratization of the workplace. In other words this Act gave birth to the manner in which labour disputes should be resolved. The study was carried out not only to explore the perceptions of educators but also with a view to making recommendations on the findings in order to help contribute towards labour peace and productivity in the workplace. The attitudes of one hundred and forty-one educators were surveyed via questionnaires and six educators who have had labour disputes with the department were interviewed. The key findings of the study revealed that both the educators who were surveyed and those interviewed lack confidence in the effectiveness of the labour dispute procedures in the district; they perceive the system as being inaccessible to them; time taken to resolve disputes is too lengthy; the system lacks necessary independence from the department of education or government and the department is seen as not adhering to its own policies and legislation. Hence there are many disputes and there is a great need for more awareness and for improved training in handling labour dispute resolution systems for district officials and educators. The study recommends more awareness and training sessions for both district officials responsible for labour relations and educators at large. It also calls for an increasingly proactive role by teacher unions in partnership with the department of education to avoid labour disputes. Although the findings cannot be generalized toother districts of the province, they do however highlight critical areas in labour dispute resolution where attention can be paid and focus made in order to ensure labour peace in the workplace for improved productivity and effective teaching and learning.
- Full Text:
Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
An analysis of the proposed amendments to the Labour Relations Act and other employment legislation
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
The extent of the right to strike in South African labour law
- Authors: Myeza, Sanele Phillip
- Date: 2009
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10225 , http://hdl.handle.net/10948/1037 , Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Description: South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.
- Full Text:
- Date Issued: 2009
- Authors: Myeza, Sanele Phillip
- Date: 2009
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10225 , http://hdl.handle.net/10948/1037 , Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Description: South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.
- Full Text:
- Date Issued: 2009
Non-renewal of a fixed-term employment contract
- Authors: Timothy, Lester Clement
- Date: 2006
- Subjects: Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10209 , http://hdl.handle.net/10948/431 , Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of the common law contract of employment an employee who is a party to a fixed term contract, unlike an indefinite period contract, cannot be dismissed. The contract terminates upon an agreed or ascertainable date determined by the parties and the conclusion of the contract. Section 186(1)(b) of the Labour Relations Act 1995, however, defines the failure to renew a fixed term contract on the same or similar terms where the employee reasonably expected the contract to be renewed, as a dismissal. In this treatise the scope and content of this provision is considered with reference to relevant case law. The factors and considerations that establish a reasonable expectation are highlighted and considered. The question as to whether or not this provision also provides for the situation where an employee expects indefinite employment is also considered and critically discussed. The author concludes that the provision should not be interpreted in such a manner that an expectation of permanent employment is created.
- Full Text:
- Date Issued: 2006
- Authors: Timothy, Lester Clement
- Date: 2006
- Subjects: Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10209 , http://hdl.handle.net/10948/431 , Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of the common law contract of employment an employee who is a party to a fixed term contract, unlike an indefinite period contract, cannot be dismissed. The contract terminates upon an agreed or ascertainable date determined by the parties and the conclusion of the contract. Section 186(1)(b) of the Labour Relations Act 1995, however, defines the failure to renew a fixed term contract on the same or similar terms where the employee reasonably expected the contract to be renewed, as a dismissal. In this treatise the scope and content of this provision is considered with reference to relevant case law. The factors and considerations that establish a reasonable expectation are highlighted and considered. The question as to whether or not this provision also provides for the situation where an employee expects indefinite employment is also considered and critically discussed. The author concludes that the provision should not be interpreted in such a manner that an expectation of permanent employment is created.
- Full Text:
- Date Issued: 2006
A comparison between the South African and Kenyan labour law systems
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
Equal pay for equal work
- Authors: Paul, Gary William
- Date: 2016
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa , Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
- Full Text:
- Date Issued: 2016
- Authors: Paul, Gary William
- Date: 2016
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa , Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
- Full Text:
- Date Issued: 2016
The impact of the concept of decent work on the job security and the provisioning of educators
- Authors: Pretorius, William Richard
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10262 , http://hdl.handle.net/10948/d1021218
- Description: Section 29(1) of the Constitution of the Republic of South Africa (the Constitution) guarantees the right to a basic education, including a basic adult education and further education. In realising this right, the State is obliged to provide financial and human resources in a manner that will transform society as a whole and deliver a better life for all citizens. The human resources in the main refer to educators. Education is one of key priorities of the present government to the extent that President Zuma has instructed that a presidential commission be established to look into the conditions of service of public servants and in particular that of educators. The International Labour Organisation (ILO) has proposed the Decent Work Country Programmes to help countries align their policies with the international goal of the achievement of Decent Work for all. South Africa has done a lot of work in this regard; however the main challenge remains with the implementation and acceptance of such policies by the major stakeholders especially the trade unions. This treatise investigates the impact of the Decent Work Agenda (DWA) on the job security and provisioning of educators in South Africa. It also explores the conditions of service of temporary educators and those educators who are teaching in the rural areas under extremely difficult conditions in comparison with their counterparts in urban areas. This treatise also examines the status of social dialogue in the education sector and the impact of same on collective bargaining. This treatise recommends that the utilisation of the services of temporary educators need to be regulated to address the continuous extension of temporary contracts that is impacting negatively on job security. It also suggests that urgent measures in the form of norms and standards be determined to improve the working conditions of educators who are teaching in rural areas under very difficult circumstances.
- Full Text:
- Date Issued: 2014
- Authors: Pretorius, William Richard
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10262 , http://hdl.handle.net/10948/d1021218
- Description: Section 29(1) of the Constitution of the Republic of South Africa (the Constitution) guarantees the right to a basic education, including a basic adult education and further education. In realising this right, the State is obliged to provide financial and human resources in a manner that will transform society as a whole and deliver a better life for all citizens. The human resources in the main refer to educators. Education is one of key priorities of the present government to the extent that President Zuma has instructed that a presidential commission be established to look into the conditions of service of public servants and in particular that of educators. The International Labour Organisation (ILO) has proposed the Decent Work Country Programmes to help countries align their policies with the international goal of the achievement of Decent Work for all. South Africa has done a lot of work in this regard; however the main challenge remains with the implementation and acceptance of such policies by the major stakeholders especially the trade unions. This treatise investigates the impact of the Decent Work Agenda (DWA) on the job security and provisioning of educators in South Africa. It also explores the conditions of service of temporary educators and those educators who are teaching in the rural areas under extremely difficult conditions in comparison with their counterparts in urban areas. This treatise also examines the status of social dialogue in the education sector and the impact of same on collective bargaining. This treatise recommends that the utilisation of the services of temporary educators need to be regulated to address the continuous extension of temporary contracts that is impacting negatively on job security. It also suggests that urgent measures in the form of norms and standards be determined to improve the working conditions of educators who are teaching in rural areas under very difficult circumstances.
- Full Text:
- Date Issued: 2014
Providing basic conditions in vulnerable sectors
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
The legal protection of temporary employees
- Authors: Gillespie, Neil
- Date: 2013
- Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
- Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
- Full Text:
- Date Issued: 2013
- Authors: Gillespie, Neil
- Date: 2013
- Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
- Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
- Full Text:
- Date Issued: 2013
Civil liability of an employer for injuries on duty
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
- Full Text:
- Date Issued: 2009
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
- Full Text:
- Date Issued: 2009
Large scale retrenchments: an overview of Section 189 A
- Authors: Ah Shene, Lee-Anne Dorothy
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10237 , http://hdl.handle.net/10948/d1012042 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Description: This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
- Full Text:
- Date Issued: 2012
- Authors: Ah Shene, Lee-Anne Dorothy
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10237 , http://hdl.handle.net/10948/d1012042 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Description: This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
- Full Text:
- Date Issued: 2012
Recent development concerning the unfair labour practice relating to promotion
- Authors: Sotshononda, Ndomelele
- Date: 2017
- Subjects: Unfair labor practices -- South Africa Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14400 , vital:27581
- Description: This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
- Full Text:
- Date Issued: 2017
- Authors: Sotshononda, Ndomelele
- Date: 2017
- Subjects: Unfair labor practices -- South Africa Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14400 , vital:27581
- Description: This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
- Full Text:
- Date Issued: 2017
The application of section 197 of the Labour Relations Act in an outsourcing context
- Authors: Biggs, Lynn
- Date: 2008
- Subjects: South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10193 , http://hdl.handle.net/10948/751 , South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Description: Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.
- Full Text:
- Date Issued: 2008
- Authors: Biggs, Lynn
- Date: 2008
- Subjects: South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10193 , http://hdl.handle.net/10948/751 , South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Description: Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.
- Full Text:
- Date Issued: 2008
Critical analysis of the 2007 public service strike and its impact on the evolution of formalised collective bargaining in South Africa
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
- Full Text:
- Date Issued: 2009
The extension of employment rights to employees who work unlawfully
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
The remedies for unfair dismissal
- Authors: Cokile, Siyabonga
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10227 , http://hdl.handle.net/10948/1033 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
- Full Text:
- Date Issued: 2009
- Authors: Cokile, Siyabonga
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10227 , http://hdl.handle.net/10948/1033 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
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- Date Issued: 2009