Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

by | May 24, 2023 | ILJ, ILJ V42 I2

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

Authors Shane Godfrey, Mario Jacobs & Emma Fergus

ISSN: 2413-9874
Affiliations: Director, Labour, Development and Governance Research Unit, University of Cape Town; Researcher, Labour, Development and Governance Research Unit, University of Cape Town; Senior Lecturer, Commercial Law Department; Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

The article explores how the changing organisation of work combined with a long-standing legal principle of demarcation disputes and the organisational rights scheme of the Labour Relations Act underlie a significant shift in trade union organisation. The externalisation of work is leading to multi-sectoral workplaces which (among other factors) is motivating trade unions to organise outside their traditional sectors. A legal principle established in demarcation disputes (ie it is the nature of the business of the employer that determines the sector in which the employer is located) has been adopted by commissioners when determining organisational rights disputes to the detriment of trade unions. Unions are responding in part by expanding their organisational scope, in effect becoming multi-sectoral unions. One is therefore seeing a fundamental shift away from industrial unionism to multi-sectoral or even general unionism. This shift, we argue, will lead to a rise in trade union rivalry and will have serious consequences for collective bargaining.

Repositioning Sexual Harassment: Integration and Objectivity as Guiding Principles in the ILO Convention 190 and the Draft Code against Violence and Harassment in the World of Work

by | May 24, 2023 | ILJ, ILJ V42 I2

Repositioning Sexual Harassment: Integration and Objectivity as Guiding Principles in the ILO Convention 190 and the Draft Code against Violence and Harassment in the World of Work

Authors Debbie Collier & Monique Carels

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Commercial Law, Institute of Development and Labour
Law, University of Cape Town; Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

Currently, sexual harassment in the workplace is treated as an exceptional form of unfair discrimination on the basis of sex, gender or sexual orientation; and more generally, harassment, if it is based on a listed or analogous ground, is treated as a form of discrimination, which is prohibited in terms of the Employment Equity Act. In recent developments, the International Labour Organisation’s Convention on Violence and Harassment in the World of Work 190 of 2019 and South Africa’s Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work of 2020 introduce the term ‘violence and harassment’ as an organising concept for the many forms of unacceptable behaviour in the workplace that cause, or are likely to cause, harm (physical, psychological, sexual or economic). While the concept of ‘violence and harassment’ includes sexual harassment, it is not limited to conduct that amounts to discrimination. In addition to prohibiting forms of violence and harassment, Convention 190 requires the adoption of an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. In this article we consider the implications of these developments for South Africa. In particular we argue that the current legal framework establishes a fragmented and complex system for resolving sexual harassment disputes; and we consider the impact on this system if the organising concept of violence and harassment were to be adopted, with violence and harassment prohibited within an inclusive and integrated approach. We caution that, in the absence of carefully crafted legislative revisions to the current legal framework, the system may become even more complex and fragmented.

The Dependent Contractor: A Missing Piece in the SITA Test and the Definition of Employee in the LRA

by | May 24, 2023 | ILJ, ILJ V42 I2

The Dependent Contractor: A Missing Piece in the SITA Test and the Definition of Employee in the LRA

Author Tumo C Maloka & Chuks Okpaluba

ISSN: 2413-9874
Affiliations: Associate Professor, School of Law, University of Limpopo; Professor and Research Fellow, Centre for Human Rights, University of Free State
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 709 – 727

Abstract

A missing piece of the puzzle in the three-fold SITA test for determining the existence of an employment relationship as well as a lacuna in the statutory definition of an ‘employee’ in s 213 of the Labour Relations Act 66 of 1995 (LRA) have arguably failed to receive sufficient scholarly, judicial and legislative attention. The three-fold SITA test refined by Benjamin and endorsed by judicial practitioners draws attention to the importance of distinguishing personal dependence from economic dependence. The absence of a dependent contractor category in the LRA renders the SITA test an imprecise tool for tackling the fine margins of self-employment. If the statutory definition of an ‘employee’ were amended to include a ‘dependent contractor’, protection would be extended to persons who have some of the trappings of the independent contractor, but, in reality, are in a position of economic dependence, analogous to that of a subordinate employee. The dependent contractor category accords well with the goals of labour regulation in terms of promoting countervailing power.

Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC):

by | May 24, 2023 | ILJ, ILJ V42 I2

Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC)

Author Muyenga Edward Mugerwa-Sekawabe

ISSN: 2413-9874
Affiliations: Graduate LLB Student (University of Cape Town), Justice Dikgang Moseneke Fellow, Legal Writing Center Tutor (University of Cape Town)
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 728 – 735

Abstract

This note considers the dispute regarding the correct interpretation of s 6 of the Employment Equity Act through an examination of the Labour Appeal Court’s decision in Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC). It concludes that the phrase ‘any other arbitrary ground’ of unfair discrimination should be interpreted narrowly by the courts. The note, through examining the Constitutional Court’s decision in Hugo, illustrates that the requirement of the impairment of dignity in cases of unfair discrimination lacks credibility and should, therefore, be rejected. An alternative approach to establishing unfair discrimination is proposed that follows from the ‘correct’ interpretation of Hugo. Lastly, this alternative approach is applied to the facts in Naidoo to demonstrate that the Labour Appeal Court erred in its decision.

Impact of the AFCFTA on Tax Revenue in Togo

Impact of the AFCFTA on Tax Revenue in Togo

by | May 21, 2023 | AMTJ, AMTJ 2023 I1

Impact of the AFCFTA on Tax Revenue in Togo

Authors: Akouété Paulin Bate and Doouda Guedikouma

ISSN: 2709-8575
Affiliations: Docteur en économie, Chargé de la planification stratégique à la Direction des études et de
la planification stratégique de l’Office Togolais des Recettes (OTR); Inspecteur des impôts, Chef section de vérification à la Direction des grandes entreprises de l’Office Togolais des Recettes (OTR)
Source: African Multidisciplinary Tax Journal, 2023 Issue 1, p. 1–19
https://doi.org/10.47348/AMTJ/V3/i1a1

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Bate, A P and Guedikouma, D
Impact of the AFCFTA on Tax Revenue in Togo
African Multidisciplinary Tax Journal, 2023 Issue 1, p. 1–19
https://doi.org/10.47348/AMTJ/V3/i1a1

Abstract

The aim of this study is to examine the impact of the AfCFTA on Togolese tax revenue. The schematic facts and the gravity model applied to data from 51 countries including 41 African countries and 10 non-member countries of the AfCFTA confirm our hypothesis that the AfCFTA positively inf luences imports and exports of goods and services and generates short-term negative effects in the form of loss of tax revenue (customs duties). Thus, the schematic facts show that Togo’s imports of goods and services from African countries increased from 159.76 billion CFA francs in 2019 to 199.71 billion CFA francs in 2021, an increase of 25%. They also show that over the period 2019 to 2021, the customs duties collected amounted to an average of 54.09 billion CFA francs. This study estimates that if AfCFTA legislation had been in force since 2019, Togo would have lost an amount of around 54 billion CFA francs in customs duties. The gravity model estimates also show that AfCFTA would lead to an increase in trade between Togo and its partners and, in turn, an increase in domestic tax revenue of 2.809% and 3.532% respectively. These results urge public decision-makers to promote Togo’s specialisation in the production of goods and services for which it has a comparative advantage. This strategy will enable Togo to produce more goods and services at lower costs in order to sell them within AfCFTA and reduce unemployment.

Impact of the AFCFTA on Tax Revenue in Togo

What Drives the Tax Compliance Levels of Sole Traders in South Africa?

by | May 21, 2023 | AMTJ, AMTJ 2023 I1

What Drives the Tax Compliance Levels of Sole Traders in South Africa?

Authors: Cathrine Thato Koloane, Mangalani Peter Makananisa, Sandisiwe Sityoshwana and Thabisa Tokwe

ISSN: 2709-8575
Affiliations: Senior Specialist: Market Research, National Revenue and Compliance Division, Operational Research Unit at the South African Revenue Service; Specialist: Statistical Support, National Revenue and Compliance Division, Operational Research Unit at the South African Revenue Service; Functional Specialist Research, SMME, Traders and Travellers Segment at the South African Revenue Service; Senior Researcher, SMME, Traders and Travellers Segment at the South African Revenue Service
Source: African Multidisciplinary Tax Journal, 2023 Issue 1, p. 20–44
https://doi.org/10.47348/AMTJ/V3/i1a2

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Koloane, C T, Makananisa, M P, Sityoshwana, S and Tokwe, T
What Drives the Tax Compliance Levels of Sole Traders in South Africa?
African Multidisciplinary Tax Journal, 2023 Issue 1, p. 20–44
https://doi.org/10.47348/AMTJ/V3/i1a2

Abstract

The study examined the drivers of levels of tax compliance of sole traders in South Africa. The study adopted a quantitative research approach where a sample of 500 sole traders was selected from a database of 146 075 active sole traders for the fiscal year 2020/21. A survey questionnaire was used to collect primary data from the participants. Only 194 sole traders responded to the questionnaire, resulting in a response rate of 39 per cent. Descriptive and inferential statistics, as well as multiple linear regression, were used to conduct the analysis. The study revealed that the tax compliance level of sole traders is inf luenced by whether their friends and relatives pay all their taxes and whether they have too much debt, which discourages tax compliance. The study recommended targeted taxpayer education and awareness, tax alleviation measures for sole traders, and government transparency in expenditure management policy, amongst other things. The study makes an important contribution to the body of knowledge in this research area and provides much-needed insights on how to improve the tax compliance levels of sole traders.

Foreign Aid and Domestic Revenue Mobilisation in Conflict-Affected Countries

by | May 21, 2023 | AMTJ, AMTJ 2023 I1

Foreign Aid and Domestic Revenue Mobilisation in Conflict-Affected Countries

Authors: Souleymane Diarra, Maimouna Diakite, Sampawende J.-A. Tapsoba and Tertius Zongo

ISSN: 2709-8575
Affiliations: West African Economic and Monetary Union (WAEMU) Commission; World Bank Group, EFI Africa Region; African Department, International Monetary Fund, Washington, DC, USA; Fondation d’Études et de Recherches sur le Développement International (FERDI)
Source: African Multidisciplinary Tax Journal, 2023 Issue 1, p. 45–68
https://doi.org/10.47348/AMTJ/V3/i1a3

Abstract

In recent years, there has been increasing interest in the impact of conflict on taxation, and a few articles have focused on aid effectiveness in conflict-affected countries. Although both aid and conflict have been identified as major determinants of tax performance, there is little agreement on the nature of their individual and joint effects on taxation. This study contributes to this debate by considering a sample of 123 developing countries over the period 1984 to 2014. Our findings show that aid granted during a period of conflict positively affects revenue collection, and this impact increases with technical assistance. A deeper analysis demonstrates a nonlinear relationship between aid provided during times of conflict and domestic revenue mobilisation. The institutional environment appears to be a factor that may mitigate, and even reverse, the nature of the relationship between aid and revenue mobilisation.

Free Trade and Tax Efficiency in the West African Economic and Monetary Union: what can we learn for the AFCFTA?

by | May 21, 2023 | AMTJ, AMTJ 2023 I1

Free Trade and Tax Efficiency in the West African Economic and Monetary Union: what can we learn for the AFCFTA?

Authors: Calixe Bidossessi Alakonon and Alastaire Sèna Alinsato

ISSN: 2709-8575
Affiliations: Laboratoire d’Economie Publique, Université d’Abomey-Calavi, Benin; Laboratoire d’Economie Publique, Université d’Abomey-Calavi, Benin
Source: African Multidisciplinary Tax Journal, 2023 Issue 1, p. 69–89
https://doi.org/10.47348/AMTJ/V3/i1a4

Abstract

The aim of this paper is to examine the effect of free trade on the tax efficiency of West African Economic and Monetary Union (WAEMU) countries. Specifically, the objective is, on the one hand, to determine the tax efficiency levels of the various taxes, and, on the other hand, to determine the influence of the common external tariff and trade openness on the tax efficiency of the various taxes in WAEMU countries. Using panel data over the period from 1980 to 2019, a stochastic tax frontier model is estimated to determine tax efficiency scores. A censored Tobit model is then used to assess the effect of free trade on the tax efficiency of countries. The results show respective average tax efficiency scores of 75.494%; 3.355%; 69.312% and 60.336% for total tax, direct tax, indirect tax and tax on foreign trade in WAEMU. In addition, the common external tariff and trade openness positively influence the tax efficiency of countries. However, the interaction between free trade and structural transformation, the quality of tax administration and income inequality reduce the tax efficiency of taxes. Decision-makers need to urgently take into consideration the structural transformation of economies, and the improvement of the efficiency of tax administrations in order to benefit from the application of the AfCFTA.

Royalty Tax Rate and the Under-reporting Dilemma in Tanzania’s Mining Sector

by | May 21, 2023 | AMTJ, AMTJ 2023 I1

Royalty Tax Rate and the Under-reporting Dilemma in Tanzania’s Mining Sector

Author: Amos James Ibrahim

ISSN: 2709-8575
Affiliations: Lecturer of Economics at the Institute of Tax Administration
Source: African Multidisciplinary Tax Journal, 2023 Issue 1, p. 90–102
https://doi.org/10.47348/AMTJ/V3/i1a5

Abstract

The paper investigates whether an increase in royalty tax rates reduces or eliminates under-reporting by firms in Tanzania’s mining sector. It uses a theoretical approach to dynamic optimisation techniques. The findings suggest that an increase in the royalty tax rate does not necessarily lower the possibility of under-reporting. Our approach is to look at the royalty tax that is levied based on the gross value. Its impact on the firm’s extraction behaviour depends mostly on the prices of minerals. More importantly, the price movements counteract the impact of a given royalty tax. We also suggest that when a country wishes to reduce or eliminate under-reporting practices, it should strengthen the regulatory body that oversees the operations of firms in the sector.

Proposition for an AFCFTA-based Tax Dispute Court for the Timely Resolution of Commercial Tax Disputes

by | May 21, 2023 | AMTJ, AMTJ 2023 I1

Proposition for an AFCFTA-based Tax Dispute Court for the Timely Resolution of Commercial Tax Disputes

Author: Marie-Louise Fehun Aren

ISSN: 2709-8575
Affiliations: Doctoral Candidate of International Tax Law, University of Pretoria
Source: African Multidisciplinary Tax Journal, 2023 Issue 1, p. 103–124
https://doi.org/10.47348/AMTJ/V3/i1a6

Abstract

The African Continental Free Trade Area (AfCFTA) Agreement is promoted as a developmental game-changer set to foster an impressive growth in intra-African trade. Already, economic forecasts project that the successful implementation of the AfCFTA could boost intra-Africa trade and investments from the current 16 per cent to about 35 to 40 per cent by 2040. However, the success of the AfCFTA implementation is largely dependent on the willingness of its member states to carry out large-scale trade and investment reforms to reap the benefits of the free trade area. One area in dire need of reform is the tax dispute settlement mechanisms (TDSM) found in tax, trade and investment agreements. These mechanisms often act as technical barriers to the realisation of the AfCFTA objectives. This paper seeks to review the TDSM provisions contained in the tax, trade and investment agreements, including the newly drafted AfCFTA investment protocol. It also seeks to provide a comprehensive analysis of the challenges inherent in these instruments with the aim of offering solutions through a progressively binding AfCFTA tax court. The court will enhance the timely and equitable resolution of tax disputes in the AfCFTA and promote a more conducive environment for investment, trade and growth.