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
A comparative study of the Ugandan and South African labour dispute resolution systems
- Authors: Ninsiima, Diana
- Subjects: Labor disputes -- Uganda , Labor disputes -- South Africa , Labor -- Law and legislation -- Uganda , Labor -- Law and legislation -- South Africa , Industrial relations -- Uganda , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9437 , http://hdl.handle.net/10948/d1020908
- Description: The purpose of the study is to compare the dispute resolution systems of Uganda and South Africa. The historical developments of both systems were discussed so as to understand the factors that contributed to their growth or demise. From the study, it is clear to see that the Ugandan system’s development has been greatly affected with every regime change, between 1894 to the present. The developments that were tackled are closely related to various historical and political phases through which Uganda has passed and these significant periods are 1894- 1962 (pre-independence), 1962-1971 (Obote 1), 1971-1979 (Amin), 1980-1985 (Obote II), 1986- 2006 (NRM) and 2006 to the present Multi-party system. The South African system on the other hand is divided into four eras with the first one beginning from 1870 to 1948, the second era from 1948 to 1979, the third from 1979-1994 and the last era from 1994 to the present date. The South African system has been greatly influenced by the past government’s move to create a dual system of labour relations that was eventually removed. The two systems were compared using a framework created basing on literature by ILO (2013), Brand, Lotter, Mischke, & Steadman (1997) and Thompson (2010). The framework for comparison outlines the elements of a dispute resolution which include the nature of the dispute, coverage, processes, avenues and human resources. It further presents the criteria and possible indicators to evaluate the performance of the system which are legitimacy, efficiency, informality, affordability, accessibility, a full range of services, accountability and resources. The comparison highlighted the various differences between both countries. The study established differences in the nature of disputes as the Ugandan system does not differentiate between the different types of dispute unlike the South African system which differentiates them and has different avenues for their settlement, the fact that the South African system has a number of avenues to cater to the different types of disputes unlike the Ugandan system which only has one route beginning with the Labour officers and the Industrial court if unresolved. An evaluation of the performance of both systems brought to light the number of changes the Ugandan system has to undergo so as to meet the expectations of the International Labour Organisation and have an effective system. The South African system proves to be more legitimate, efficient, informal, affordable, and accessible than the Ugandan system. Further still the South African system provides a full range of services is more accountable and has enough resources when compared with the Ugandan system. Recommendations have been proposed at the end of the study, mainly for the Ugandan system as the South African system appears to be more advanced and more effective in dispute resolution by international standards. The recommendations suggested are creating an independent dispute resolution system, mass sensitisation on labour rights, accreditation of private agencies, create a separate dispute resolution system for the informal sector, proper routing of disputes, creation of an independent body to monitor the national system, encouraging the creation of more democratic workplaces, re-establish the industrial court and finally, employing and training more labour officers.
- Full Text:
- Authors: Ninsiima, Diana
- Subjects: Labor disputes -- Uganda , Labor disputes -- South Africa , Labor -- Law and legislation -- Uganda , Labor -- Law and legislation -- South Africa , Industrial relations -- Uganda , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9437 , http://hdl.handle.net/10948/d1020908
- Description: The purpose of the study is to compare the dispute resolution systems of Uganda and South Africa. The historical developments of both systems were discussed so as to understand the factors that contributed to their growth or demise. From the study, it is clear to see that the Ugandan system’s development has been greatly affected with every regime change, between 1894 to the present. The developments that were tackled are closely related to various historical and political phases through which Uganda has passed and these significant periods are 1894- 1962 (pre-independence), 1962-1971 (Obote 1), 1971-1979 (Amin), 1980-1985 (Obote II), 1986- 2006 (NRM) and 2006 to the present Multi-party system. The South African system on the other hand is divided into four eras with the first one beginning from 1870 to 1948, the second era from 1948 to 1979, the third from 1979-1994 and the last era from 1994 to the present date. The South African system has been greatly influenced by the past government’s move to create a dual system of labour relations that was eventually removed. The two systems were compared using a framework created basing on literature by ILO (2013), Brand, Lotter, Mischke, & Steadman (1997) and Thompson (2010). The framework for comparison outlines the elements of a dispute resolution which include the nature of the dispute, coverage, processes, avenues and human resources. It further presents the criteria and possible indicators to evaluate the performance of the system which are legitimacy, efficiency, informality, affordability, accessibility, a full range of services, accountability and resources. The comparison highlighted the various differences between both countries. The study established differences in the nature of disputes as the Ugandan system does not differentiate between the different types of dispute unlike the South African system which differentiates them and has different avenues for their settlement, the fact that the South African system has a number of avenues to cater to the different types of disputes unlike the Ugandan system which only has one route beginning with the Labour officers and the Industrial court if unresolved. An evaluation of the performance of both systems brought to light the number of changes the Ugandan system has to undergo so as to meet the expectations of the International Labour Organisation and have an effective system. The South African system proves to be more legitimate, efficient, informal, affordable, and accessible than the Ugandan system. Further still the South African system provides a full range of services is more accountable and has enough resources when compared with the Ugandan system. Recommendations have been proposed at the end of the study, mainly for the Ugandan system as the South African system appears to be more advanced and more effective in dispute resolution by international standards. The recommendations suggested are creating an independent dispute resolution system, mass sensitisation on labour rights, accreditation of private agencies, create a separate dispute resolution system for the informal sector, proper routing of disputes, creation of an independent body to monitor the national system, encouraging the creation of more democratic workplaces, re-establish the industrial court and finally, employing and training more labour officers.
- Full Text:
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