Interdicting protected strikes on account of violence

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

Interdicting protected strikes on account of violence

Authors Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Advocate of the High Court of South Africa; Adjunct Professor of Law at Nelson Mandela University
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 703 – 724

Abstract

Strike violence is an abuse of the constitutional right to strike and amounts to collective brutality and economic duress. This article examines the difficult question whether, in the absence of a legislative amendment expressly affording it the power to do so, a protected strike can be interdicted by the Labour Court on account of strike violence. There are two judgments in which the court has indicated a preparedness to grant such an interdict: Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC), and National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits & Allied Workers & others (2016) 37 ILJ 476 (LC). But a final interdict is yet to be granted on this basis. In order for the court to be empowered to grant such an interdict, the violence must either have caused the strike to lose its protected status or have caused it no longer to qualify as a ‘strike’ as defined in s 213 of the Labour Relations Act 66 of 1995. Arguments in support of both constructions are advanced.

International developments in labour law in the last 20 years

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

International developments in labour law in the last 20 years

Authors Manfred Weiss

ISSN: 2413-9874
Affiliations: Professor, Institute for Labour Law, Goethe University, Frankfurt
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 693 – 702

Abstract

Developments in international labour law in the last two decades evince both positive and negative aspects. The ILO declaration of 1998 is an ambiguous innovation. It has raised public attention in respect of core labour rights thus compensating for the low rate of ratification of such rights. But it has also introduced a problematic hierarchy of standards and an ongoing and ever increasing soft law approach. The ILO has finally extended its activities to the informal sector, but has not yet developed a satisfactory policy in this respect. The conflict over the mandate of the ILO might further weaken its already rather inefficient enforcement machinery. The example of global supply chains shows that fragmented and limited regulatory attempts arise only in reaction to shocks (for instance, the Rana Plaza tragedy), and that comprehensive regulation by enforceable hard law is resisted by all the countries whose multinational enterprises (MNEs) profit from the exploitation of workers in developing countries. Soft law instruments prevail. Private actors succeed only to a very limited extent in compensating for the deficiencies in the ILO’s and UN’s regulatory machinery. The MNE codes of conduct have proved to be rather inefficient instruments, mainly used for marketing purposes. More promising are the International Framework Agreements.

Note: Dispute resolution mechanisms in employment contracts – when should the Labour Court intervene? SA Football Players Union & others v Free State Stars Football Club (Pty) Ltd

by | Oct 4, 2019 | ILJ, ILJ V39 I1

Note: Dispute resolution mechanisms in employment contracts – when should the Labour Court intervene? SA Football Players Union & others v Free State Stars Football Club (Pty) Ltd

Authors Kershwyn Bassuday

ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 1, 2018, p. 97 – 105

Abstract

None

Note: Large-scale operational requirements dismissals: How effective are the remedies? A discussion of Steenkamp & others v Edcon (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC)

by | Oct 4, 2019 | ILJ, ILJ V39 I1

Note: Large-scale operational requirements dismissals: How effective are the remedies? A discussion of Steenkamp & others v Edcon (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC)

Authors Tungamirai Kujinga, Stefan van Eck

ISSN: 2413-9874
Affiliations: None; Professor of Labour Law, Faculty of Law, University of Pretoria; Director, Centre for Insolvency, Labour and Company Law (CILC)
Source: Industrial Law Journal, Volume 39 Issue 1, 2018, p. 76 – 88

Abstract

None

Rana Plaza tragedy: Who is to blame?

by | Oct 4, 2019 | ILJ, ILJ V39 I1

Rana Plaza tragedy: Who is to blame?

Authors Asif Salahuddin

ISSN: 2413-9874
Affiliations: Lecturer in Law, Metropolitan University, Sylhet, Bangladesh
Source: Industrial Law Journal, Volume 39 Issue 1, 2018, p. 51 – 75

Abstract

In 2013 Bangladesh experienced a tragic accident in the garment industry with the Rana Plaza building collapse, which led to large-scale human casualties. The incident highlighted the deplorable labour conditions in the country. As Bangladesh’s garment industry is export oriented, the disaster raises questions about the corporate social responsibility of foreign corporations. This article assesses the responsibility of such companies as well as that of the government of Bangladesh for the incident and other similar industrial accidents. Although Bangladesh has been a member of the International Labour Organisation (ILO) since 1972 and has ratified most of its core conventions, their implementation appears to be far from effective in practice. The ILO’s inability to sanction or to penalise countries that fail to implement the ratified conventions is a drawback and prevents it from being an effective organisation although it is the sole labour organisation to oversee labour standards and working conditions globally. The article ends with a number of recommendations aimed at facilitating the effective implementation of controls designed to improve labour standards and conditions in Bangladesh and other developing countries.

The sounds of silence: The evolution of the concept of derivative misconduct and the role of inferences

by | Oct 4, 2019 | ILJ, ILJ V39 I1

The sounds of silence: The evolution of the concept of derivative misconduct and the role of inferences

Authors Tarryn Poppesqou

ISSN: 2413-9874
Affiliations: Director, Futcher & Poppesqou Attorneys
Source: Industrial Law Journal, Volume 39 Issue 1, 2018, p. 34 – 50

Abstract

In what circumstances may an employer dismiss a group of employees which includes the unidentified perpetrator or perpetrators of a proven misconduct? Is an employer entitled to draw inferences from circumstantial evidence and rely on those inferences in dismissing a group of employees where such misconduct has occurred? May an employee elect to remain silent when he or she has knowledge of conduct which may negatively impact the employer’s business? What rights and obligations do employees in such a group have? These are questions which have arisen and have been dealt with by our labour courts, resulting in a test for derivative misconduct which currently extends to a duty placed upon employees to come forward in the face of misconduct perpetrated by fellow employees.

The national minimum wage: how best to align it with the existing labour regulatory framework

by | Oct 4, 2019 | ILJ, ILJ V39 I1

The national minimum wage: how best to align it with the existing labour regulatory framework

Authors Shane Godfrey, Mario Jacobs

ISSN: 2413-9874
Affiliations: Coordinator, Labour and Enterprise Policy Research Group, University of Cape Town; Researcher, Labour and Enterprise Policy Research Group, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 1, 2018, p. 1 – 33

Abstract

A national minimum wage (NMW) of R20 per hour will be introduced from 1 May 2018, which will set an absolute floor with which contracts of employment, collective agreements and sectoral determinations must comply. It will be introduced in a dedicated statute but will require alignment with or accommodation by existing labour statutes, in particular the Basic Conditions of Employment Act (BCEA), the Labour Relations Act, the Employment Equity Act, the Employment Services Act, and the Employment Tax Incentive Act. The article examines the potential points of conflict between the NMW and the above five statutes and discusses how these can be resolved. Key issues are whether the NMW should be introduced in a dedicated statute or via the BCEA as a sectoral determination; who will be covered by the NMW; what the impact will be on ordinary hours of work; what the composition of the NMW will be and whether deductions will be allowed; what will happen to sectoral determinations; who will grant exemptions and who will enforce the NMW; and how its impact on disproportionate vertical income differentials can be maximised. It is also argued that the NMW is of a different order to existing minimum wage setting mechanisms and will have a more extensive impact on existing legislation than anticipated. This raises the question whether it is time for an examination of the entire labour legislative framework.

A Call to Revise Section 8(2)(e) of the Occupational Health and Safety Act to include Crisis Risk Communication

by | Oct 3, 2019 | ILJ, ILJ V40 I3

A Call to Revise Section 8(2)(e) of the Occupational Health and Safety Act to include Crisis Risk Communication

Authors Terrence R Carney, Nina Mollema

ISSN: 2413-9874
Affiliations: Senior lecturer in Afrikaans Linguistics, College of Human Sciences, UNISA; Associate Professor in Criminal and Procedural Law, College of Law, UNISA
Source: Industrial Law Journal, Volume 40 Issue 3, 2019, p. 1441 – 1456

Abstract

This article gauges s 8 of South Africa’s Occupational Health and Safety Act and highlights its lack of clarity and prescriptive guidelines on crisis risk communication. Paragraph 8(2)(e) specifically obliges employers to provide information and training to ensure a safe and healthy working environment. However, the Act neither defines the words ‘communication’ and ‘information’ nor does it clearly provide for the dissemination of information during a crisis, like industrial action, which affects many employees simultaneously. The #FeesMustFall and insourcing protests that occurred at universities across the country during 2015-2016 are a good example of this. The protests compelled universities to send out text messages as a means of communicating with their staff and students. Though crisis risk communication theory expects messages to provide clear and straightforward directives, some messages were vague. This begs the question whether an institution must simply provide information to comply with the law, or whether clear directives should be the only legal standard. Subsection 8(2)(e) of the Act provides little insight. With the above in mind, this article suggests best practice criteria for crisis risk communication and a proposed reformulation of s 8(2)(e).