The principle of majoritarianism in the case of organisational rights for trade unions – Is it necessary for stability in the workplace or simply a recipe for discord?

by | Oct 6, 2019 | ILJ, ILJ V37 I2

The principle of majoritarianism in the case of organisational rights for trade unions – Is it necessary for stability in the workplace or simply a recipe for discord?

Authors Sean Snyman

ISSN: 2413-9874
Affiliations: Director, Snyman Attorneys Inc, Johannesburg
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 865 – 879

Abstract

The article focusses on the interplay of the constitutional rights to freedom of association and collective bargaining, as regulated by the Labour Relations Act. In particular it highlights the conflict between these rights in relation to the issue of organisational rights of minority trade unions. It argues that in terms of the LRA a collective agreement, as the product of the collective bargaining process, has preference over all else, which even includes the right to strike and the contractual freedom of individual employees and minority trade unions. The LRA provides that an employer and a majority trade union may conclude a collective agreement fully regulating their affairs which may be made binding on all the employees of the employer. Organisational rights available to representative and majority unions in terms of the Act are not an end in themselves, but rather a means to an end, that of collective bargaining. In the circumstances where a binding collective agreement has been extended to all employees, no purpose can be achieved by affording organisational rights to a minority trade union in the same workplace. It simply does not matter if the application of the principle of majoritarianism — which the LRA unashamedly supports — causes hardship to, or prejudices the rights of, minorities. Within this context the article discusses the setting under s 18 of threshold agreements between employers and majority trade unions for the acquisition of organisational rights by minority unions, as well as their recourse under the Act to collective bargaining and to striking in support of their demands. It anticipates that the new amendments to s 21 may promote union rivalry and create conflict between that section and s 18.

Religious discrimination in the South African workplace: Regulated regimes and flexible adjudication

by | Oct 6, 2019 | ILJ, ILJ V37 I2

Religious discrimination in the South African workplace: Regulated regimes and flexible adjudication

Authors Radley Henrico

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Public and Procedural Law, University of Johannesburg
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 847 – 864

Abstract

The inherently tenuous relationship between employee and employer can be aggravated when religious discrimination arises in the workplace. This form of discrimination continues to constitute an important part of our equality jurisprudence. The South African legal system has in place a statutory scheme which strongly underpins fundamental values and principles enshrined in the Constitution guaranteeing the right to religious freedom. It is a regulated system ensuring religious freedom in a secular society workplace subject to reasonable limitations. These regulations must be compared with the more flexible ‘context-sensitive’ manner in which our courts adjudicate religious workplace disputes. The uniqueness of our courts not employing a ‘formal’ or ‘universal’ test, but rather a ‘context-sensitive’ approach, aligns itself with a transformative constitutional notion in so far as the judgments seek to develop a jurisprudence in which diverse interests are considered and accommodated, thus emphasising a change to a more informed adjudicative process. Such an approach also translates into certainty as to how future cases are likely to be adjudicated. This certainty is to be welcomed since it is an essential ingredient of the rule of law upon which our democracy relies.

Exploring innovative solutions to extend social protection to vulnerable women workers in the informal economy

by | Oct 6, 2019 | ILJ, ILJ V37 I2

Exploring innovative solutions to extend social protection to vulnerable women workers in the informal economy

Authors Elmarie Fourie

ISSN: 2413-9874
Affiliations: Senior Lecturer, Faculty of Law, University of Johannesburg, South Africa
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 831 – 846

Abstract

Informal employment is now a reality and is estimated to comprise more than one half of non-agricultural employment in most regions of the developing world. In many of these regions, it is a primary source of non-agricultural employment for women. Female informal workers are not recognised, regulated or protected by labour legislation or social protection measures and can be characterised by varying degrees of ‘dependency’ and ‘vulnerability’. Social protection plays a critical role in realising the human right of social security for all, in reducing poverty and inequality, and in supporting inclusive growth. When considering the protection of these informal workers it is of the utmost importance to explore the design and implementation of innovative and tailor-made solutions, considering for example the nature of their work and their workplace. A sustainable integrated approach should include their legal and economic empowerment. The importance of voice and representation in the provision of protection to informal women workers needs to be highlighted as well as the existence of workers’ organisations for such workers, both at national and international levels.

Equal pay for work of equal value – A South African perspective

by | Oct 6, 2019 | ILJ, ILJ V37 I2

Equal pay for work of equal value – A South African perspective

Authors Talita Laubscher

ISSN: 2413-9874
Affiliations: Partner in the Employment Practice Group, Bowman Gilfillan Inc
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 804 – 830

Abstract

It is well recognised that women are generally paid at lower rates than their male counterparts, and for over 50 years countries around the world have grappled with the issue of equality of pay between the sexes. In South Africa, not only is there disparity of pay between women and men, but also between the different race groups. The Employment Equity Act prohibits unfair discrimination in any employment policy or practice. With effect from 1 August 2014, s 6(4) of the Act expressly recognises that differences in terms and conditions of employment between employees who perform the same or similar work, or work of equal value, constitute a form of unfair discrimination when the reason for the difference is one of the grounds listed in s 6(1). This paper analyses the elements of an equal treatment claim with specific reference to the provisions of s 6(4) of the Act, the Employment Equity Regulations 2014 and applicable case law.

Labour law, the queen bee syndrome and workplace bullying: A contribution to the shattering of at least one glass ceiling for female employees

by | Oct 6, 2019 | ILJ, ILJ V37 I2

Labour law, the queen bee syndrome and workplace bullying: A contribution to the shattering of at least one glass ceiling for female employees

Authors Denine Smit

ISSN: 2413-9874
Affiliations: B IUR (Free State), LLB (Free State), Diploma in Labour Law (cum laude), LLM (cum laude) (Free State), LLD (Free State)
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 779 – 803

Abstract

Along with the rise of women in the workplace has come the rise of the workplace ‘queen bee’ — a female in a senior or authoritative position in a predominantly male workplace who would do everything in her power to keep other females from advancing through the ranks. This article argues that in order to ensure that females in the workplace enjoy the same rights as their male colleagues, it is imperative for all stakeholders to see the queen bee syndrome for what it is — yet another form of workplace bullying. Treating it as such could help shatter at least one of the glass ceilings currently restricting women’s advancement at work. Through a comparison with the United States, the United Kingdom and Australia, amongst others, the legal position on this matter in South Africa is assessed. It is concluded that even though there are various potential legal avenues in South Africa through which to address the queen bee syndrome as a form of bullying, there is no single deadly accurate one. For this reason, until government and stakeholders finally develop new, purpose-made legislation or a code to deal with the matter, soft-law approaches may deliver potential solutions. These include the drafting of internal zero-tolerance workplace policies, underpinned by awareness campaigns, employee education and training in problem recognition, coaching and mediation tools, as well as specially created hotlines to report queen bee behaviour.

Minority trade unions and the amendments to the LRA: Reflections on thresholds, democracy and ILO conventions

by | Oct 6, 2019 | ILJ, ILJ V37 I2

Minority trade unions and the amendments to the LRA: Reflections on thresholds, democracy and ILO conventions

Authors Paul Benjamin

ISSN: 2413-9874
Affiliations: Temogo Geoffrey Esitang, Stefan van Eck
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 763 – 778

Abstract

A dominant feature of the LRA collective bargaining framework is that it strongly favours majority trade unions. The proverbial ‘big kids on the block’ can prevent newcomer trade unions from getting a ‘foot in the door’. Section 18 of the LRA permits employers and majority trade unions to conclude collective agreements establishing a threshold of representativeness required in respect of organisational rights. The Labour Relations Amendment Act of 2014 seeks to ameliorate the negative effect of s 18 agreements in two key respects. In the first instance, a trade union may apply for organisational rights despite the existence of a s 18 agreement. Secondly, a trade union not representing a majority of workers at a workplace may apply for all of the organisational rights as long as there is no other trade union at the workplace which holds majority status. This article questions whether, after the amendments, the South African framework of labour democracy: is aligned to the democratic model envisaged by the Constitution; complies with the fundamental labour rights contained in the Constitution; and adheres to ILO conventions. The contribution finds the amendments wanting in so far as they do not do enough to establish the type of multiparty democracy which the Constitution envisages. Furthermore, the limitations which the LRA places on minority trade unions are disproportional in as far as they limit the constitutional and ILO norms pertaining to the freedom of association and the right to organise.