‘Regulated Flexibility’ and labour market regulation: a case Study of Twizza Soft Drinks in the Eastern Cape, South Africa
- Authors: Flatau, Scott
- Date: 2020
- Subjects: Labor market -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa -- Case studies
- Language: English
- Type: text , Thesis , Masters , MSocSc
- Identifier: http://hdl.handle.net/10962/141288 , vital:37959
- Description: Following the negotiated settlement, which led to the ANC assuming power in South Africa in1994, debates concerning the nature of the South African labour market ensued between policy makers and economists alike. Central to understanding the South African labour market was the policy objective of regulated flexibility that has guided the formation of labour legislation in the post-1994 period, including the Labour Relations Act of 1995, the Basic Conditions of Employment Act of 1997, the Employment Equity Act of 1998 and the Skills Development Act of 1998. Regulated flexibility attempts to accommodate the interests of the employer for flexibility and the interests of the employee in regulation or security. These four Acts and the relevant provisions contained within them are the central focus of this research paper, in particular how they affect the case study firm Twizza Soft Drinks. An interpretivist approach was utilised as the preferred research methodology with in-depth, semi-structured interviews being the primary source of data collection. This research paper attempts to situate more clearly the impact of South Africa’s macro-economic policies since 1994 on labour market policy and undertakes an exploration of internal dynamics of firms in response to exogenous factors, such as government regulation. The key finding suggest that some Acts (BCEA, LRA) do not impose a significant burden on the firm and some provisions can lead to beneficial outcomes such as business modernisation and the adoption of formal Human Resource Practices. Conversely, some provisions contained in the EEA increase the administrative burden and therefore increase the indirect cost on the firm.
- Full Text:
- Date Issued: 2020
- Authors: Flatau, Scott
- Date: 2020
- Subjects: Labor market -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa -- Case studies
- Language: English
- Type: text , Thesis , Masters , MSocSc
- Identifier: http://hdl.handle.net/10962/141288 , vital:37959
- Description: Following the negotiated settlement, which led to the ANC assuming power in South Africa in1994, debates concerning the nature of the South African labour market ensued between policy makers and economists alike. Central to understanding the South African labour market was the policy objective of regulated flexibility that has guided the formation of labour legislation in the post-1994 period, including the Labour Relations Act of 1995, the Basic Conditions of Employment Act of 1997, the Employment Equity Act of 1998 and the Skills Development Act of 1998. Regulated flexibility attempts to accommodate the interests of the employer for flexibility and the interests of the employee in regulation or security. These four Acts and the relevant provisions contained within them are the central focus of this research paper, in particular how they affect the case study firm Twizza Soft Drinks. An interpretivist approach was utilised as the preferred research methodology with in-depth, semi-structured interviews being the primary source of data collection. This research paper attempts to situate more clearly the impact of South Africa’s macro-economic policies since 1994 on labour market policy and undertakes an exploration of internal dynamics of firms in response to exogenous factors, such as government regulation. The key finding suggest that some Acts (BCEA, LRA) do not impose a significant burden on the firm and some provisions can lead to beneficial outcomes such as business modernisation and the adoption of formal Human Resource Practices. Conversely, some provisions contained in the EEA increase the administrative burden and therefore increase the indirect cost on the firm.
- Full Text:
- Date Issued: 2020
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
Workplace discipline in the public education sector
- Authors: Loliwe, Fezeka Sister
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor discipline -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10290 , http://hdl.handle.net/10948/d1020091
- Description: Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
- Full Text:
- Date Issued: 2014
- Authors: Loliwe, Fezeka Sister
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor discipline -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10290 , http://hdl.handle.net/10948/d1020091
- Description: Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
- Full Text:
- Date Issued: 2014
Unfair discrimination in recruitment practices
- Authors: Brand, Hugo
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa , Employment interviewing , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10260 , http://hdl.handle.net/10948/d1021197
- Description: The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.
- Full Text:
- Date Issued: 2015
- Authors: Brand, Hugo
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa , Employment interviewing , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10260 , http://hdl.handle.net/10948/d1021197
- Description: The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.
- Full Text:
- Date Issued: 2015
The variation of conditions of employment
- Authors: Horo, Lindile
- Date: 2002
- Subjects: Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11043 , http://hdl.handle.net/10948/282 , Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Description: This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.
- Full Text:
- Date Issued: 2002
- Authors: Horo, Lindile
- Date: 2002
- Subjects: Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11043 , http://hdl.handle.net/10948/282 , Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Description: This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.
- Full Text:
- Date Issued: 2002
The unfair labour practice relating to promotion
- Authors: Abrahams, Dawood
- Date: 2004
- Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
- Full Text:
- Date Issued: 2004
- Authors: Abrahams, Dawood
- Date: 2004
- Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
- Full Text:
- Date Issued: 2004
The unfair labour practice relating to benefits
- Authors: Timothy, Andrea Francis
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
- Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
- Full Text:
- Date Issued: 2015
- Authors: Timothy, Andrea Francis
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
- Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
- Full Text:
- Date Issued: 2015
The role of the education labour relations council in collective bargaining
- Authors: Foca, Nolusindiso Octavia
- Date: 2014
- Subjects: Collective bargaining -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10298 , http://hdl.handle.net/10948/d1021054
- Description: The 1996 Constitution provides workers with the right to form and join trade unions and to participate in the activities and programmes of those trade unions. The organizational and associated rights contained in sections 23(2)-(4) of the Constitution of Republic of South Africa, form the bedrock of a labour-relations system characterized by voluntarist collective bargaining. The constitutional protection that the above section gives to these organisational rights shields the trade unions and employer organisations from legislative and executive interference in their affairs and in turn, inhibits victimisation of and interference in trade unions by employers. One of the expressly stated purposes of the Labour Relations Act of 1995 (hereinafter referred to as the “LRA”) is to promote collective bargaining and to provide a framework within which employers, employers’ organisations, trade unions and employees can bargain collectively to determine wages, terms and conditions of employment, other matters of mutual interest and to formulate industrial policy. Notwithstanding the above purpose, the Act does not compel collective bargaining, with the result that the courts have no role in determining, for example, whether an employer should bargain collectively with a trade, what they should bargain about, at what level they should bargain or how parties to a negotiation should conduct themselves. Despite this, by extending and bolstering the right to strike, the LRA has effectively empowered trade unions to have recourse to the strike as an integral aspect of the collective bargaining process. The LRA provides a framework that is conducive to collective bargaining and thus providing for the establishment of bargaining councils. The purpose of this treatise is to examine the role played by the Education Labour Relations Council (hereinafter referred to as the “ELRC”) as one of the sectoral bargaining councils in the Public Service, in collective bargaining. In order to place this discussion in context, it is valuable to know the history of industrial relations and collective bargaining in South Africa.
- Full Text:
- Date Issued: 2014
- Authors: Foca, Nolusindiso Octavia
- Date: 2014
- Subjects: Collective bargaining -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10298 , http://hdl.handle.net/10948/d1021054
- Description: The 1996 Constitution provides workers with the right to form and join trade unions and to participate in the activities and programmes of those trade unions. The organizational and associated rights contained in sections 23(2)-(4) of the Constitution of Republic of South Africa, form the bedrock of a labour-relations system characterized by voluntarist collective bargaining. The constitutional protection that the above section gives to these organisational rights shields the trade unions and employer organisations from legislative and executive interference in their affairs and in turn, inhibits victimisation of and interference in trade unions by employers. One of the expressly stated purposes of the Labour Relations Act of 1995 (hereinafter referred to as the “LRA”) is to promote collective bargaining and to provide a framework within which employers, employers’ organisations, trade unions and employees can bargain collectively to determine wages, terms and conditions of employment, other matters of mutual interest and to formulate industrial policy. Notwithstanding the above purpose, the Act does not compel collective bargaining, with the result that the courts have no role in determining, for example, whether an employer should bargain collectively with a trade, what they should bargain about, at what level they should bargain or how parties to a negotiation should conduct themselves. Despite this, by extending and bolstering the right to strike, the LRA has effectively empowered trade unions to have recourse to the strike as an integral aspect of the collective bargaining process. The LRA provides a framework that is conducive to collective bargaining and thus providing for the establishment of bargaining councils. The purpose of this treatise is to examine the role played by the Education Labour Relations Council (hereinafter referred to as the “ELRC”) as one of the sectoral bargaining councils in the Public Service, in collective bargaining. In order to place this discussion in context, it is valuable to know the history of industrial relations and collective bargaining in South Africa.
- Full Text:
- Date Issued: 2014
The requirement of "bumping" in operational-requirement dismissals
- Authors: Strydom, Wynand Wilhelmus
- Date: 2015
- 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: http://hdl.handle.net/10948/5896 , vital:21009
- Description: This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
- Full Text:
- Date Issued: 2015
- Authors: Strydom, Wynand Wilhelmus
- Date: 2015
- 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: http://hdl.handle.net/10948/5896 , vital:21009
- Description: This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
- Full Text:
- Date Issued: 2015
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.
- Full Text:
- Date Issued: 2009
The relationship between an automatically unfair dismissal in terms of section 187(1)(c) of the labour relations act and a dismissal for operational reasons
- Authors: James, Ncumisa Portia
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10226 , http://hdl.handle.net/10948/1034 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Description: Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
- Full Text:
- Date Issued: 2009
- Authors: James, Ncumisa Portia
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10226 , http://hdl.handle.net/10948/1034 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Description: Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
- Full Text:
- Date Issued: 2009
The protection offered in terms of the 2014 labour law amendments to fixed-term Contract and part-time employees
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
- Full Text:
- Date Issued: 2018
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
- Full Text:
- Date Issued: 2018
The programmatic enforcement of affirmative action
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
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:
The obligation on employers to effect affirmative action measures
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
The nature and potential effect of the Labour Relations Amendment Act 2002
- Authors: Conroy, Andrew Geddes
- Date: 2003
- Subjects: South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11037 , http://hdl.handle.net/10948/292 , South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Description: It took 18 months of intensive negotiation at the Millennium Labour Council, NEDLAC and the Labour Portfolio Committee before the Labour Relations Amendment Act of 20021 completed its passage through Parliament, taking effect on 1 August 2002. Fifty-seven amendments to specific sections of the Labour Relations Act2 and its schedules cure some obvious anomalies in the original version. It is further apparent that the legislature has taken cognisance of the observations by judges and arbitrators, who voiced their criticism in respect of certain aspects of the original "Act". The amended "Act"3 does appear to be a genuine commitment by both business and organised labour to improve efficiency in the labour market, to promote employment creation and to protect vulnerable workers. Improved dispute resolution mechanisms, enforcement mechanisms and the resurgence of an unfettered discretion in awarding compensation go some way to improving the application of the "Act". The most dramatic amendments have taken place in the law regulating retrenchments by large employers, inclusive of the controversial introduction of a right to strike after retrenchments of this nature have been effected, and the regulation of the transfer of a business as a going concern and its impact on workers. Critics indicate that business and organised labour have subscribed to the package of amendments despite respective reservations and due to certain time constraints. The nett result is a package of amendments that could be described as failing to address, in certain respects, or intentionally overlooking, areas of the "Act" that have traditionally been shown wanting in the past. In the individual employment law sphere specifically, the failure to address the meaning of "benefits" in the definition of unfair labour practices; to allocate a precise meaning to the concept of the transfer of a going concern; or to regulate the conduct of employers when transferring employees, remain some of the areas for concern. It appears that the legislature has decided that certain issues should be resolved by the Labour Court, and ultimately the Labour Appeal Court, on a case-by-case basis rather than by legislative intervention. Whilst this approach has merit, it does present problems to those seeking to apply the provisions of the amended "Act" 5 in everyday practice. On the whole, the amendments do not, nor were they designed to, mark a major shift in the government's labour market policy. The changes clearly focus on correcting and clarifying sections of the "Act", which have resulted in unintended consequences, or lost touch with commercial reality, over the past seven years.
- Full Text:
- Date Issued: 2003
- Authors: Conroy, Andrew Geddes
- Date: 2003
- Subjects: South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11037 , http://hdl.handle.net/10948/292 , South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Description: It took 18 months of intensive negotiation at the Millennium Labour Council, NEDLAC and the Labour Portfolio Committee before the Labour Relations Amendment Act of 20021 completed its passage through Parliament, taking effect on 1 August 2002. Fifty-seven amendments to specific sections of the Labour Relations Act2 and its schedules cure some obvious anomalies in the original version. It is further apparent that the legislature has taken cognisance of the observations by judges and arbitrators, who voiced their criticism in respect of certain aspects of the original "Act". The amended "Act"3 does appear to be a genuine commitment by both business and organised labour to improve efficiency in the labour market, to promote employment creation and to protect vulnerable workers. Improved dispute resolution mechanisms, enforcement mechanisms and the resurgence of an unfettered discretion in awarding compensation go some way to improving the application of the "Act". The most dramatic amendments have taken place in the law regulating retrenchments by large employers, inclusive of the controversial introduction of a right to strike after retrenchments of this nature have been effected, and the regulation of the transfer of a business as a going concern and its impact on workers. Critics indicate that business and organised labour have subscribed to the package of amendments despite respective reservations and due to certain time constraints. The nett result is a package of amendments that could be described as failing to address, in certain respects, or intentionally overlooking, areas of the "Act" that have traditionally been shown wanting in the past. In the individual employment law sphere specifically, the failure to address the meaning of "benefits" in the definition of unfair labour practices; to allocate a precise meaning to the concept of the transfer of a going concern; or to regulate the conduct of employers when transferring employees, remain some of the areas for concern. It appears that the legislature has decided that certain issues should be resolved by the Labour Court, and ultimately the Labour Appeal Court, on a case-by-case basis rather than by legislative intervention. Whilst this approach has merit, it does present problems to those seeking to apply the provisions of the amended "Act" 5 in everyday practice. On the whole, the amendments do not, nor were they designed to, mark a major shift in the government's labour market policy. The changes clearly focus on correcting and clarifying sections of the "Act", which have resulted in unintended consequences, or lost touch with commercial reality, over the past seven years.
- Full Text:
- Date Issued: 2003
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
The law relating to lock-outs
- Madokwe, De Villiers Badanile
- Authors: Madokwe, De Villiers Badanile
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11046 , http://hdl.handle.net/10948/298 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.
- Full Text:
- Date Issued: 2003
- Authors: Madokwe, De Villiers Badanile
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11046 , http://hdl.handle.net/10948/298 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.
- Full Text:
- Date Issued: 2003
The labour law consequences of a transfer of a business
- Authors: Abader, Mogamad Shahied
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11057 , http://hdl.handle.net/10948/306 , Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Description: The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.
- Full Text:
- Date Issued: 2003
- Authors: Abader, Mogamad Shahied
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11057 , http://hdl.handle.net/10948/306 , Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Description: The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.
- Full Text:
- Date Issued: 2003
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