An examination of employee participation as provided for in the Labour Relations Act 66 of 1995
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
Insubordination in the workplace
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Date Issued: 1999
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Date Issued: 1999
Protectionism and compliance with the GATT article XXIV in selected regional trade arrangements
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
The legal position of unmarried fathers in the adoption process after Fraser v Children's Court, Pretoria North, and others 1997 (2) SA 261 (CC) : towards a constitutionally-sound adoption statute
- Schäfer, Lawrence Ivan, 1972-
- Authors: Schäfer, Lawrence Ivan, 1972-
- Date: 1999
- Subjects: Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3694 , http://hdl.handle.net/10962/d1003209 , Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Description: The subject-matter of this thesis is the rule, previously contained in section 18(4)(d) of the Child Care Act 74 of 1983, in terms of which a mother could surrender her child born out of wedlock for adoption without the consent of its father. This section was struck down as unconstitutional by the Constitutional Court in Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC), on the grounds that it violated an unmarried father’s constitutional rights to equality and non-discrimination. In the light of this judgment, this thesis seeks to articulate the constitutional parameters within which section 18(4)(d) must be amended. The requirements of Fraser are identified and discussed. Regard is also had to other constitutional rights upon which Fraser might have been decided; in particular, an unmarried father’s right to procedural fairness, and his child’s right to family or parental care. Case law from the United States, Canada, Ireland and the European Court of Human Rights is also discussed. The end product of this examination is an exposition of the various constitutional rights which vest in the father of a child born out of wedlock. A separate exposition is given of the distinct rights which vest in all children in the adoption process. The latter set of rights is drawn both from the Constitution of the Republic of South Africa Act 96 of 1996, and the United Nations Convention on the Rights of the Child. The thesis then proceeds to examine the Adoption Matters Amendment Act 56 of 1998, which was enacted in response to Fraser. The consent and notice provisions of adoption statutes in the United States, Canada, Australia, Ireland and England are also examined, and compared to the provisions of the Adoption Matters Amendment Act. The object, here, is two-fold: first, to consider the practical value of this Act; and second, to consider whether it satisfies the constitutional requirements identified earlier in this thesis. The thesis concludes with suggestions for the improvement of this Act.
- Full Text:
- Date Issued: 1999
- Authors: Schäfer, Lawrence Ivan, 1972-
- Date: 1999
- Subjects: Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3694 , http://hdl.handle.net/10962/d1003209 , Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Description: The subject-matter of this thesis is the rule, previously contained in section 18(4)(d) of the Child Care Act 74 of 1983, in terms of which a mother could surrender her child born out of wedlock for adoption without the consent of its father. This section was struck down as unconstitutional by the Constitutional Court in Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC), on the grounds that it violated an unmarried father’s constitutional rights to equality and non-discrimination. In the light of this judgment, this thesis seeks to articulate the constitutional parameters within which section 18(4)(d) must be amended. The requirements of Fraser are identified and discussed. Regard is also had to other constitutional rights upon which Fraser might have been decided; in particular, an unmarried father’s right to procedural fairness, and his child’s right to family or parental care. Case law from the United States, Canada, Ireland and the European Court of Human Rights is also discussed. The end product of this examination is an exposition of the various constitutional rights which vest in the father of a child born out of wedlock. A separate exposition is given of the distinct rights which vest in all children in the adoption process. The latter set of rights is drawn both from the Constitution of the Republic of South Africa Act 96 of 1996, and the United Nations Convention on the Rights of the Child. The thesis then proceeds to examine the Adoption Matters Amendment Act 56 of 1998, which was enacted in response to Fraser. The consent and notice provisions of adoption statutes in the United States, Canada, Australia, Ireland and England are also examined, and compared to the provisions of the Adoption Matters Amendment Act. The object, here, is two-fold: first, to consider the practical value of this Act; and second, to consider whether it satisfies the constitutional requirements identified earlier in this thesis. The thesis concludes with suggestions for the improvement of this Act.
- Full Text:
- Date Issued: 1999
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