Revisiting strikes in essential services

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Revisiting strikes in essential services

Authors Darcy du Toit, Mario Jacobs, Roger Ron

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape; Researcher, Labour and Enterprise Policy Research Group, Faculty of Law, University of Cape Town; Researcher, Social Law Project, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2131 – 2147

Abstract

Strikes and lock-outs in ‘essential’ and ‘maintenance’ services are prohibited in South Africa; disputes between workers and employers in essential services must be referred to arbitration. Despite this, strikes in essential services are far more common than arbitration proceedings. The article argues that this is not simply a legal problem but that unprotected or unlawful strike action is driven by socio-economic and historic dynamics, above all by the extreme inequality dividing South African society. It examines a number of alternative mechanisms that could be used to supplement the existing dispute resolution system, including the determination of minimum services by the Essential Services Committee. However, the question remains to what extent parties would adhere to minimum service determinations made against their will. The article argues that successful remedial measures would have to be based on an appropriate balance between workers’ right to strike and the public right of access to essential services. To achieve this, it suggests, negotiations between employers, unions, and other organisations that are genuinely representative of all relevant stakeholders, including users of essential services, would be crucial.

The conundrum of unclaimed retirement benefits held by South African Retirement Funds

by | Oct 4, 2019 | ILJ, ILJ V39 I4

The conundrum of unclaimed retirement benefits held by South African Retirement Funds

Authors Clement Marumoagae

ISSN: 2413-9874
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2107 – 2130

Abstract

This article examines the manner in which retirement fund benefits belonging to former retirement fund members or their beneficiaries are dealt with in South Africa. In particular, it highlights the difficulties associated with tracing former members and their beneficiaries who are entitled to receive these benefits. Relevant legislation dealing with unclaimed benefits in South Africa is discussed with a view to assessing whether it provides any solution to the challenge relating to the payment of these benefits. The article advances the argument that there is a need to establish a central unclaimed benefits fund mandated to address the challenge of unclaimed benefits in South Africa.

Should precarious work be the focus of Labour Law?

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Should precarious work be the focus of Labour Law?

Authors Darcy du Toit

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2089 – 2106

Abstract

This article draws on the findings of a joint research project conducted by researchers at the University of Cape Town and the University of the Western Cape, together with Workers World Media Productions during 2016-2017. It uses the term ‘precarious work’ to refer to the various forms of ‘non-standard’ or ‘vulnerable’ work that are characterised by a lack of adequate legal protection. The reasons for this, it argues, lie in the absence of appropriate mechanisms in the existing labour law framework for addressing the conditions of precarious workers. It suggests that alternative means of workplace regulation which are more responsive to the needs of precarious and marginalised workers are required, involving the devolution of regulatory powers to appropriate levels. Enabling legislation is proposed to create inclusive regulatory processes in different work or social domains, including supervision by higher organs of state with residual powers to ensure that the public interest is safeguarded. Such an approach, it argues, is consistent with the constitutional principle of substantive equality, and could help to rejuvenate labour law at a time when its structures are increasingly less able to engage with a changing work environment.

Case Note: The dislocated employee in a restructuring process South African Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC)

by | Oct 4, 2019 | ILJ, ILJ V39 I3

Case Note: The dislocated employee in a restructuring process South African Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC)

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 3, 2018, p. 1470 – 1477

Abstract

None

Does South African labour legislation provide adequate protection for mental illness in the workplace?

by | Oct 4, 2019 | ILJ, ILJ V39 I3

Does South African labour legislation provide adequate protection for mental illness in the workplace?

Authors L Nxumalo

ISSN: 2413-9874
Affiliations: Attorney
Source: Industrial Law Journal, Volume 39 Issue 3, 2018, p. 1436 – 1452

Abstract

Managing mental illness is one of the challenges encountered by employers in the workplace. As mental illness is unique in nature being largely an invisible disability, employees with such illness, unlike those with visible disabilities, are often not recognised as requiring reasonable accommodation. The critical question is whether South African labour legislation provides adequate protection for employees with mental illness. If not, how are employers managing such employees? This article contends that while disability is generally covered in labour legislation, such legislation does not provide adequate mechanisms for managing mental illness and other disabilities in the workplace, even though the Constitution recognises the need to achieve substantive equality and human dignity for all people with disabilities. Furthermore, arising from the legislative framework, there is an ongoing misperception that disability and incapacity are equivalent concepts, thus disadvantaging employees with mental illness. This article advocates the introduction of specific disability legislation, inclusive of an adequate focus on mental illness. It further recommends specialised training on mental illness for management and the use of specialist psychologists to assist in addressing such illness. Finally, it encourages employers to create a positive working environment with a culture fully inclusive of employees with mental illness.

Enforcement of Labour Court judgments in Zimbabwe: Lessons and perspectives from Southern Africa

by | Oct 4, 2019 | ILJ, ILJ V39 I3

Enforcement of Labour Court judgments in Zimbabwe: Lessons and perspectives from Southern Africa

Authors Tapiwa Givemore Kasuso

ISSN: 2413-9874
Affiliations: Lecturer, Midlands State University, Gweru, Zimbabwe
Source: Industrial Law Journal, Volume 39 Issue 3, 2018, p. 1415 – 1435

Abstract

The Constitution of Zimbabwe establishes a Labour Court with exclusive jurisdiction over an exhaustive list of labour matters. Its purpose is to secure the just, effective, and expeditious resolution of labour disputes. Regrettably, the Labour Court was deprived of the power to enforce its orders, both ad pecuniam solvendam and ad factum praestandum. Labour Court orders ad factum praestandum are not enforceable at all. Only orders sounding in money are able to be registered with the civil courts for enforcement purposes. This procedure for registration and enforcement is complicated, expensive, and a fertile ground for forum shopping. It inhibits the realisation of speedy social justice. The article critically analyses the registration and enforcement procedures of Labour Court orders in Zimbabwe. In so doing, a comparative analysis of the jurisdictions of selected southern African countries is undertaken. It concludes that the panacea for the problems bedevilling Zimbabwe is to clothe the Labour Court with its own enforcement mechanisms.

Misapplying section 252A of the Criminal Procedure Act – the questionable admissibility of evidence obtained through traps and undercover operations in employment matters

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Misapplying section 252A of the Criminal Procedure Act – the questionable admissibility of evidence obtained through traps and undercover operations in employment matters

Authors Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 749 – 770

Abstract

Section 252A of the Criminal Procedure Act allows law enforcement officers or their agents to use traps or to engage in undercover operations in order to prevent, detect or investigate the commission of an offence. Evidence obtained through such traps or undercover operations is admissible. Since the coming into force of s 252A, South African courts have developed a rich jurisprudence on the issue of traps and undercover operations. Most of this jurisprudence has developed within the context of criminal law. However, since 2000 there has been a consistent trend on the part of the Labour Court, the Commission for Conciliation, Mediation and Arbitration and bargaining councils, to assess the admissibility of evidence obtained through entrapment or undercover operations in employment matters on the basis of s 252A. This article argues that relying on s 252A to assess the admissibility in employment matters of such evidence is questionable. The author recommends that in employment disputes, the admissibility of evidence obtained through traps should be assessed on the basis of the principles that existed before s 252A was enacted and that consideration should be given to the drafting of employment-specific legislation to regulate the process.

Privacy in the workplace

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Privacy in the workplace

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 725 – 748

Abstract

The legitimacy and fairness of managerial practices which intrude on private actions, thoughts, and opinions are considered through two separate concepts which make up privacy: freedom from intrusion and protection for autonomy. While the Constitutional Court has acknowledged privacy in the truly personal realm, it has stated that as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly. The extent of this shrinkage is assessed looking at seven issues: (1) medical, alcohol and drug testing, (2) body, bag, locker and office searches, (3) camera surveillance, (4) polygraph testing, (5) freedom of speech and electronic privacy, (6) the privacy of personal data, and (7) appearance regulation. The assessment suggests that in most of these areas of contestation adjudicators have not automatically deferred to managerial prerogative but instead have recognised privacy rights, particularly in the sense of autonomy, to uphold the right to dignity. At the same time there is a recognition that privacy, like all constitutional rights, can be limited if it is reasonable and justifiable to do so, usually where that is in the public interest.