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
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
An analysis of the proposed amendments to the Labour Relations Act and other employment legislation
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
The 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
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
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
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
Large scale retrenchments: an overview of Section 189 A
- Authors: Ah Shene, Lee-Anne Dorothy
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10237 , http://hdl.handle.net/10948/d1012042 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Description: This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
- Full Text:
- Date Issued: 2012
- Authors: Ah Shene, Lee-Anne Dorothy
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10237 , http://hdl.handle.net/10948/d1012042 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Description: This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
- Full Text:
- Date Issued: 2012
Providing basic conditions in vulnerable sectors
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
Substantive equality and affirmative action in the workplace
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
The effect of South African labour legislation on refugees and migrants
- Authors: Swartz, Natasha Schantal
- Date: 2012
- Subjects: Labor laws and legislation -- South Africa , Refugees -- South Africa , Foreign workers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10289 , http://hdl.handle.net/10948/d1019921
- Description: Since South Africa was declared a democratic country, the number of refugees fleeing to South Africa has increased. While it is understandable that refugees would flee to a country with a Constitution that protects the rights of everyone within its territory, this influx of refugees and migrants also puts a strain on the South African economy. One of the main problems associated with refugees and migrants in this country is their illegal status. Failure to obtain legal status in the country can be attributed to their own negligence to attend to the Refugee Reception Office, upon their arrival in the country. On the other hand, the South African government also fails foreigners in that the service provided at the Refugee Reception Offices is not up to the standard promised in the legislation. A further problem associated with refugees and migrants in the country is that they are competing with South Africans for jobs that are already scarce in the country. A foreigners need to earn a living is the driving force behind entering the employment market, and often illegally. Where refugees and migrants do not have the required work permits, their employment is prohibited in terms of the Immigration Act 13 of 2002 and they are thus illegal workers. Until recently, South Africa has followed the same policy as other international countries. Illegal workers did not have access to the protection provided by our labour legislation, by virtue of the illegality of their employment contracts. This position was changed by the Discovery Health case where the courts focused more on the existence of an employment relationship as oppose to an employment contract.
- Full Text:
- Date Issued: 2012
- Authors: Swartz, Natasha Schantal
- Date: 2012
- Subjects: Labor laws and legislation -- South Africa , Refugees -- South Africa , Foreign workers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10289 , http://hdl.handle.net/10948/d1019921
- Description: Since South Africa was declared a democratic country, the number of refugees fleeing to South Africa has increased. While it is understandable that refugees would flee to a country with a Constitution that protects the rights of everyone within its territory, this influx of refugees and migrants also puts a strain on the South African economy. One of the main problems associated with refugees and migrants in this country is their illegal status. Failure to obtain legal status in the country can be attributed to their own negligence to attend to the Refugee Reception Office, upon their arrival in the country. On the other hand, the South African government also fails foreigners in that the service provided at the Refugee Reception Offices is not up to the standard promised in the legislation. A further problem associated with refugees and migrants in the country is that they are competing with South Africans for jobs that are already scarce in the country. A foreigners need to earn a living is the driving force behind entering the employment market, and often illegally. Where refugees and migrants do not have the required work permits, their employment is prohibited in terms of the Immigration Act 13 of 2002 and they are thus illegal workers. Until recently, South Africa has followed the same policy as other international countries. Illegal workers did not have access to the protection provided by our labour legislation, by virtue of the illegality of their employment contracts. This position was changed by the Discovery Health case where the courts focused more on the existence of an employment relationship as oppose to an employment contract.
- Full Text:
- Date Issued: 2012
The extension of employment rights to employees who work unlawfully
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
Policies, procedures and practices contributing to tensions between labour and management
- Authors: Basson, Jerome Godfrey
- Date: 2010
- Subjects: Labor laws and legislation -- South Africa , Human capital -- South Africa , South Africa -- Politics and government , South Africa -- Constitution
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9427 , http://hdl.handle.net/10948/1267 , Labor laws and legislation -- South Africa , Human capital -- South Africa , South Africa -- Politics and government , South Africa -- Constitution
- Description: The Constitution of the Republic of South Africa guarantees the right of education to all citizens of the country. The Eastern Cape Department of Education went a step further by adopting a vision to ensure quality public education that will result in the positive transformation of all schools. Education is therefore a very important part of the life of any society and needs to be protected at all costs. It is therefore important that all obstacles in the way of providing quality public education be removed. It is no secret that the Eastern Cape Department of Education has had a number of battles with some of its social partners. These battles have negatively impacted on the education system. This Department also received the largest slice of the taxpayers’ money. It is time to take serious steps to halt the waste of time and resources. It is against this background that this study wanted to consider policies, procedures and practices that generated tension between the management and labour in the Eastern Cape Department of Education. It is my belief that if tension between the different social partners can be reduced, we would have gone a long way in achieving the vision of the Department of Education. The research methodology that was followed for this study comprised the following: • Literature was reviewed that dealt with labour relations and human resources. • A questionnaire was designed to collect information from the different participants. • The information in the questionnaire was incorporated into the main study where findings were identified and recommendations were formulated.
- Full Text:
- Date Issued: 2010
- Authors: Basson, Jerome Godfrey
- Date: 2010
- Subjects: Labor laws and legislation -- South Africa , Human capital -- South Africa , South Africa -- Politics and government , South Africa -- Constitution
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9427 , http://hdl.handle.net/10948/1267 , Labor laws and legislation -- South Africa , Human capital -- South Africa , South Africa -- Politics and government , South Africa -- Constitution
- Description: The Constitution of the Republic of South Africa guarantees the right of education to all citizens of the country. The Eastern Cape Department of Education went a step further by adopting a vision to ensure quality public education that will result in the positive transformation of all schools. Education is therefore a very important part of the life of any society and needs to be protected at all costs. It is therefore important that all obstacles in the way of providing quality public education be removed. It is no secret that the Eastern Cape Department of Education has had a number of battles with some of its social partners. These battles have negatively impacted on the education system. This Department also received the largest slice of the taxpayers’ money. It is time to take serious steps to halt the waste of time and resources. It is against this background that this study wanted to consider policies, procedures and practices that generated tension between the management and labour in the Eastern Cape Department of Education. It is my belief that if tension between the different social partners can be reduced, we would have gone a long way in achieving the vision of the Department of Education. The research methodology that was followed for this study comprised the following: • Literature was reviewed that dealt with labour relations and human resources. • A questionnaire was designed to collect information from the different participants. • The information in the questionnaire was incorporated into the main study where findings were identified and recommendations were formulated.
- Full Text:
- Date Issued: 2010
Civil liability of an employer for injuries on duty
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
Critical analysis of the 2007 public service strike and its impact on the evolution of formalised collective bargaining in South Africa
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
- Full Text:
- Date Issued: 2009
Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
The consequences of unlawful and prohibited contracts of employment in labour law
- Authors: Salim, Raya Said
- Date: 2009
- Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
- Full Text:
- Date Issued: 2009
- Authors: Salim, Raya Said
- Date: 2009
- Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
- Full Text:
- Date Issued: 2009
The extent of the right to strike in South African labour law
- Authors: Myeza, Sanele Phillip
- Date: 2009
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10225 , http://hdl.handle.net/10948/1037 , Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Description: South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.
- Full Text:
- Date Issued: 2009
- Authors: Myeza, Sanele Phillip
- Date: 2009
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10225 , http://hdl.handle.net/10948/1037 , Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Description: South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.
- Full Text:
- Date Issued: 2009
The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
- Full Text:
- Date Issued: 2009
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
- Full Text:
- Date Issued: 2009
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.
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- Date Issued: 2009