Minority Unions and Special Interest Groups in the Workplace

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Minority Unions and Special Interest Groups in the Workplace

Authors Wilhelmina Germishuys-Burchell & Christoph Garbers

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa; Associate Professor, Stellenbosch University
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 722 – 748
https://doi.org/10.47348/ILJ/v46/i2a2

Abstract

The appropriateness of the Labour Relations Act 66 of 1995 (LRA 1995) has been questioned for its effect on the plight of minority union members or a minority group of employees who share a significant and discrete interest in the workplace. This article considers the vision of majoritarianism in the LRA 1995 as a product of criticism of the Industrial Conciliation Act 28 of 1956 (subsequently renamed the Labour Relations Act (LRA 1956)), and its support by the Constitutional Court. It does so with reference to representation at disciplinary enquiries, during retrenchment consultation, and during collective bargaining to show that after almost 30 years of the current LRA we have perhaps come full circle to the point where the Act is open to the same criticism levelled against the LRA 1956 all those years ago.

The Evolution of the Right to Freedom of Association: A South African Perspective

by | Mar 30, 2025 | ILJ, ILJ V46 I2

The Evolution of the Right to Freedom of Association: A South African Perspective

Authors Rochelle Le Roux & Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; Associate Professor, Faculty of Law, University of Pretoria
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 749 – 782
https://doi.org/10.47348/ILJ/v46/i2a3

Abstract

Although individual jurisdictions have since developed their own nuances, the right to freedom of association in the labour context in jurisdictions acknowledging such a right stem from the Freedom of Association and Protection of the Right to Organise Convention 87, adopted by the International Labour Organisation (ILO) in 1948. In South Africa, this right is emphasised in ss 18 and 23 of the Constitution, with further regulation provided by the Labour Relations Act (LRA). Many of the provisions in the LRA can potentially raise issues, but this article focuses on its explicit expression in chapter II of the LRA. The article examines several contentious aspects of this chapter: the lack of a registration requirement for trade unions, the definition of ‘lawful activities’ for unions, an employee’s right to join a union ‘subject to its constitution,’ and whether a right not to associate can be inferred. It further considers the interface between the right to freedom of association and closed and agency shop agreements. The conclusion is that, despite South African courts generally adopting a liberal understanding of the right to freedom of association, their approach regarding employees’ rights to be represented by chosen trade unions has been surprisingly conservative.

Sectoral Bargaining: The First 100 Years — and Beyond?

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Sectoral Bargaining: The First 100 Years — and Beyond?

Authors Darcy du Toit & Shane Godfrey

ISSN: 2413-9874
Affiliations: Emeritus Professor and Research Coordinator at the Centre for Transformative Regulation of Work at the University of the Western Cape; Honorary Research Associate at the University of Cape Town and Research Associate at the Centre for Transformative Regulation of Work at the University of the Western Cape
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 783 – 804
https://doi.org/10.47348/ILJ/v46/i2a4

Abstract

The article combines an empirical historical overview of sectoral bargaining with a legal analysis of the post-1994 legislative framework for sectoral bargaining. The empirical evidence provides strong indications that deindustrialisation and the burgeoning services sector are undermining industrial unionism and the system of sectoral bargaining, with the exception of centralised bargaining in the public service. The legal analysis builds on this assessment by highlighting the 1995 Labour Relations Act’s failure, although aiming to promote sectoral bargaining, to take account of the changes emerging in the labour market in its provisions for collective bargaining. While subsequent amendments have sought to catch up with labour market developments and shore up the bargaining council system in the private sector, they have fallen short. The root of the problem is the failure to provide a mechanism to include non-standard employees and other marginalised workers in the collective bargaining system, either via existing unions or by allowing scope for their organisations to participate in collective bargaining. The article ends by proposing some guidelines for a social dialogue process that would extend the reach of sectoral bargaining.

Whatever Happened to the Right to Security of Employment as a Fundamental Right?

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Whatever Happened to the Right to Security of Employment as a Fundamental Right?

Author André van Niekerk

ISSN: 2413-9874
Affiliations: Judge of the Labour Appeal Court; BA LLB, MA (Witwatersrand), LLM (Leicester)
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 805 – 817
https://doi.org/10.47348/ILJ/v46/i2a5

Abstract

The article addresses conceptions of fairness in dismissals for misconduct. It examines the development of a balancing metaphor, where the adjudicator is a dispassionate party, placing into the scales the respective interests of employee and employer, the fairness of a dismissal being determined by the direction in which the scales tip. The article argues that the balancing metaphor does not sufficiently acknowledge the right to work security as a fundamental right, protected by s 23 of the Constitution. It further suggests that a test of proportionality as a basis to test the fairness of a dismissal better resonates with constitutional principles.

An Arbitrary Ground — 10 Years On

by | Mar 30, 2025 | ILJ, ILJ V46 I2

An Arbitrary Ground — 10 Years On

Author Talita Laubscher

ISSN: 2413-9874
Affiliations: Partner, Bowmans; B Iur (Free State), LLB (Free State), LLM (Emory USA)
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 818 – 846
https://doi.org/10.47348/ILJ/v46/i2a6

Abstract

The Employment Equity Act 55 of 1998 gives effect to the constitutional right to equality where an employment relationship exists. Section 6, containing the prohibition on unfair discrimination, was amended in August 2014. An important addition was the inclusion of the phrase ‘or on any other arbitrary ground’. This article examines the meaning of an arbitrary ground, particularly in the context of s 6(4) equal treatment cases. Interestingly, in the majority of these cases, the differentiation was introduced by a collective agreement and in none of these did the applicants seek to set the agreements aside. While a collective agreement per se is not a defence to an unfair discrimination claim, differentiation introduced by collective agreements must be carefully considered, because the grounds for discrimination in these instances are most often apparently neutral grounds. These would not support direct discrimination claims, but they may give rise to those that are indirect. These claims are evidence intensive and stereotypes do not assist claimants. Outside the equal pay context, an arbitrary ground has been found to exist in the form of overly broad workplace rules infringing an employee’s constitutional rights.

Social Security in South Africa: Overview of Developments — Historical Perspectives

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Social Security in South Africa: Overview of Developments — Historical Perspectives

Author Marius Olivier

ISSN: 2413-9874
Affiliations: Honorary Professor, Faculty of Law, Nelson Mandela University; Extraordinary Professor, Faculty of Law, North-West University; Adjunct-Professor, School of Law, University of Western Australia; BA LLB (Pret), LLD (Unisa)
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 847 – 870
https://doi.org/10.47348/ILJ/v46/i2a7

Abstract

This contribution concerns an assessment of the historical development of formalised social security in South Africa. It firstly provides a historical overview of the development of non-contributory social security (social assistance) in accordance with distinct time periods, noting that initial non-state interventions have gradually been augmented and with time displaced by initially restrictive but later expanding arrangements serving particular categories of the poor. Until 1993 racial inequality remained a distinct hallmark of social assistance provisioning, the removal of which resulted in an exceptionally comprehensive system of state support with powerful direct and indirect, distributional impact. Secondly, historical perspectives on the development of contributory social security (social insurance) are reflected on, per risk category. Key risk benefit categories (in old age, unemployment, occupational injuries and diseases, health care, sickness, maternity, disability, and dependants’ domains) have incrementally been captured in public and private contributory arrangements, and coverage progressively extended to include mostly vulnerable workers, the majority of whom are Africans. Finally, and in conclusion, an overall assessment of historical developments is provided. An integrated and calibrated social security system is still lacking, while significant gaps remain, both system- and institutionally wise. Key categories of vulnerable persons, notably the long-term unemployed and informal economy and self-employed workers, remain largely excluded. A shift from non-state and private provisioning to larger, public scheme arrangements has been discernible, but uneven: among others, the establishment of the envisaged National Social Security Fund has yet to materialise.

Deviations from Design: Regulating Strikes in a Land of Unrest

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Deviations from Design: Regulating Strikes in a Land of Unrest

Author Clive Thompson

ISSN: 2413-9874
Affiliations: Director, CoSolve
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 871 – 898
https://doi.org/10.47348/ILJ/v46/i2a8

Abstract

Strike action has played a pivotal role in advancing and securing the socio-economic interests of workers in South Africa, first for white workers, then for black. Rights were won only in the aftermath of serious and sustained labour unrest, for white workers in the twenties, for black workers fifty years later. None of the legislative attempts at modulation ever quite went to plan, and the degree of deviation has arguably increased across the decades. The Industrial Conciliation Act 11 of 1924 set out to institutionalise conflict in respect of the favoured class of workers while ignoring the majority. But eventually demographics, international pressure and a groundswell of political and industrial resistance obliged the minority government from the late seventies and into the eighties to open an adjusted but unstable labour relations system to all. The Labour Relations Act 66 of 1995 (LRA) heralded a modern regime of great promise. That potential has not been realised under the weight of accumulated historical disadvantage and grievance, and the inability of the new constitutional and political order to repel corruption, violence and incompetence. It is difficult to see how the objects of the 1995 Act can be realised if — among other weighty challenges — the social parties cannot find a way to grow more co-operative, productive and competitive workplaces. Ironically, the voluntary suspension of the hard-fought right to strike might need to feature as part of any workplace culture reset.

Social justice as an antidote to poverty and inequality: 30 years into democracy, what still needs to be done?

by | Mar 17, 2025 | SLR, SLR V35 I2

Social justice as an antidote to poverty and inequality: 30 years into democracy, what still needs to be done?

Author: Kholeka Gcaleka

ISSN: 1996-2193
Affiliations: LLB LLM
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 93-114
https://doi.org/10.47348/SLR/2024/i2a1

Abstract

Thirty years after South Africa’s first democratic elections, the nation grapples with the paradox of being “democratic, yet unequal and impoverished”. This contribution examines the persistent socio-economic disparities that continue to plague South African society. Despite the progress made since apartheid, the deep-rooted legacies of injustice remain evident in the high levels of poverty and inequality. The concept of social justice, enshrined in the Constitution of the Republic of South Africa, 1996, is more than a moral imperative. It is a legally enforceable right that encompasses access to basic necessities like housing, healthcare, and education. However, translating constitutional promises into tangible improvements for the most vulnerable citizens remains a significant challenge. Social justice is not solely the responsibility of the Government. It is a collective mission for all South Africans to rectify past injustices and build a society based on democratic values, equality, and fundamental human rights. The role of institutions like the Public Protector of South Africa in upholding accountability and ensuring the protection of citizens’ rights is highlighted as crucial for the realisation of social justice.

Learning from protected areas – Distilling lessons for a potential future OECM statutory framework in South Africa

by | Mar 17, 2025 | SLR, SLR V35 I2

Learning from protected areas – Distilling lessons for a potential future OECM statutory framework in South Africa

Author: Alexander Paterson

ISSN: 1996-2193
Affiliations: BSocSci LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 115-143
https://doi.org/10.47348/SLR/2024/i2a2

Abstract

As 2030 rapidly approaches, governments are grappling with how, within the short remaining timeframe, to meet their commitments under the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework. The Global Biodiversity Framework’s Target 3 commits governments to incorporate at least 30% of their territory in two main forms of area-based instruments: protected areas and other effective area-based conservation measures (“OECMs”). The former are relatively well understood. The origins of the international system for protected areas dates back several decades. There exists extensive international guidance highlighting, amongst many things, the important role and influence of law on protected areas. This has in turn informed the domestic development, implementation and refinement of protected areas legislation in many countries. In stark contrast, OECMs are a far newer phenomenon. The concept was only formally defined in 2018 and no international guidance exists framing the role and influence of law on OECMs. Owing to their contemporaneity, governments are still in the process of contemplating how to provide for the domestic recognition of OECMs. Some commentators have called for deeper reflection on the role and influence of law in enabling, securing, regulating and supporting OECMs. Three potential reasons underpin these calls, namely that both constitute area-based instruments with the majority of their definitional elements being very similar in nature; if law has historically had an important role and influence on protected areas, lessons could potentially be drawn from this experience in the context of OECMs; and both count towards the same 30×30 target, with the inherent logic being that to ensure some measure of equivalence and consistency in treatment, both must be enabled, secured, regulated and supported through law. Using South Africa as a case study, the article explores lessons that could be learnt from the implementation of, and reforms to, the country’s protected areas legislation, for any future OECM statutory framework. The discussion of these potential lessons is broken down under an array of themes, namely system planning and site selection; recognition and long-term security; governance diversity; management, monitoring and reporting; and financing and incentives.

Clearing the interpretative air – The need to make good (air quality) law and to make good law work

by | Mar 17, 2025 | SLR, SLR V35 I2

Clearing the interpretative air – The need to make good (air quality) law and to make good law work

Author: Jenny Hall

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 144-177
https://doi.org/10.47348/SLR/2024/i2a3

Abstract

A corollary of the environmental rule of law requirement that good laws must be passed is that these laws must also be implemented effectively. Effective implementation frequently relies on good bureaucratic decision-making which can be challenging where decisions are non-routine and complex. This challenge is evident in the practical application of so-called “listed activities”, a widely used approach in pollution and waste management regulation to trigger an obligation to obtain an environmental authorisation or licence to undertake the listed activity. When courts hear disputes on the design and implementation of these listed activities, they can play a valuable role in providing guidance on sound decision-making approaches, and course-correcting existing approaches if necessary. For the court’s impact to be realised optimally, however, it is important that judicial decision making itself is based on sound reasoning and that it contains an element of predictability which follows from the employment of a consistent approach to legislative interpretation. For the interpretation of environmental legislation, this contribution proposes a reframing of the purposive interpretative approach set out in the much-cited Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) that aims to achieve what I call ‘substantive ecological purposivism’. It examines three judgments on listed activities passed in terms of the National Environmental Management: Air Quality Act 39 of 2004 through the lens of this approach and points out both inconsistencies in the three judgments as well as how the decisions in some instances could have been more closely aligned with the environmental objectives of legislation if the systematic employment of a substantively ecological purposive approach had been adopted.