Note: The Impact of the Fourth Industrial Revolution on Workplace Law and Employment in South Africa

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: The Impact of the Fourth Industrial Revolution on Workplace Law and Employment in South Africa

Authors Lindani Nxumalo & Carol Nxumalo

ISSN: 2413-9874
Affiliations: Attorney; Honorary Research Fellow, School of Law, University of KwaZulu-Natal; PhD (UKZN); PhD Candidate (UKZN); B Admin (UKZN), B Com Hons (UNISA), M Com (UKZN)
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 16 – 25

Abstract

The rapid technological changes engendered by the fourth industrial revolution necessitate the need for workplaces to re-examine current strategies to ensure that they benefit from the opportunities presented by advanced technology while minimising any risk associated with it. It further requires legislative reform to prepare for technological changes that are associated with the fourth industrial revolution in the workplace. This note explores how technology should be integrated into the world of work but with sound labour relations being maintained. Additionally, it calls for employment law reform consistent with technological advancement and the values of the Constitution.

Note: Sanctity of Contract Prevails Over Force Majeure: The Brand Kitchen Judgment

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: Sanctity of Contract Prevails Over Force Majeure: The Brand Kitchen Judgment

Author Richard S Bradstreet

ISSN: 2413-9874
Affiliations: Senior Lecturer in Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 26 – 33

Abstract

Employment depends on the continued success of a commercial endeavour, but the profit objective of businesses must give way to the recognition of contractual obligations to employees. Where a change in commercial circumstances gives rise to an inability to operate at a profit, the law of contract mandates that employment obligations must be fulfilled in circumstances falling short of an absolute inability to perform. The Brand Kitchen judgment illustrates the law’s strong recognition of the sanctity of contracts, and the importance of legislative frameworks for restructuring that allow for a departure from strict common law rules relating to impossibility of performance.

Note: Decisions of Specialist Tribunals Deemed Orders of Court: A Reflection on Mantsho v Managing Director of the Municipal Employee Pension Fund & others [2015] ZAGPPHC 408

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: Decisions of Specialist Tribunals Deemed Orders of Court: A Reflection on Mantsho v Managing Director of the Municipal Employee Pension Fund & others [2015] ZAGPPHC 408

Author Alex Nair

ISSN: 2413-9874
Affiliations: Attorney; Lecturer Labour Unit, Law Clinic, University of the Witwatersrand; LLB (University of the Witwatersrand)
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 33 – 49

Abstract

The Office of the Pension Funds Adjudicator (OPFA) plays a vital role in the adjudication of disputes that arise in the private pension fund sector by investigating a dispute and issuing a determination. The Pension Funds Act (PFA) deems these determinations orders of a court of law having jurisdiction as if the matter had been adjudicated by such court. The effect of the legislative provision provides those in possession of a determination the opportunity to enforce it through contempt of court proceedings in the face of non-compliance. In Mantsho v Managing Director of the Municipal Employee Pension Fund and Others the court concluded, however, that as a specialist tribunal the OPFA could not grant orders of court as a court of law would because it was not a public judicial officer. As a result, the functionality of the OPFA in our legal system has been rendered uncertain. In order to maintain the credibility of the OPFA these determinations should be treated as orders of a court of law. The court’s strict reading of the PFA and application of the differentiation between courts of law and specialist tribunals incorrectly narrows the interpretation of the legal fiction created by the PFA. This note will explore the underpinnings of this concept and reflect on judgments where it has been appropriately utilised. In addition, it will analyse the court’s judgment in order to illustrate why the failure to utilise the concept of a legal fiction properly in relation to the determinations of the OPFA was a missed opportunity. Further, this note will argue that the PFA in its current form does not adequately provide for the enforcement of determinations and therefore should be amended to introduce a process of certification whereby determinations of this nature may, on behalf of an aggrieved party, be certified by the OPFA to facilitate enforcement through contempt of court proceedings.

Reflections on Marginalised Workers and the Role of Trade Unions in the Changing World of Work

by | Apr 23, 2023 | ILJ, ILJ V42 I3

Reflections on Marginalised Workers and the Role of Trade Unions in the Changing World of Work

Authors William Manga Mokofe & Stefan van Eck

ISSN: 2413-9874
Affiliations: Senior Lecturer, Pearson Institute of Higher Education; Professor of Labour Law, University of Pretoria
Source: Industrial Law Journal, Volume 41 Issue 3, 2021, p. 1365 – 1389

Abstract

The world of work is changing rapidly. The globalisation of economies and brisk technological changes severely impact all nations. These changes have had a significant impact on traditional employer-employee relations. Labour and social security protections for workers are being eroded through informalisation, casualisation and externalisation. Added to this, new forms of platform work have been established during the fourth industrial revolution that have had a disruptive effect on the notion of secure and indefinite employment. Collective bargaining and trade unions have in the past played an important role in protecting workers’ rights. This contribution interrogates the role of trade unions and collective bargaining in the changed world of work and considers strategies that unions should consider implementing. The article concludes by suggesting that the solution to problems associated with non-standard and platform work may not lie in the bargaining power of trade unions. Governments will have to step in to fill the gaps in order to protect persons involved in new forms of work.

Case Note: The Lock-out as a Tool for the Business Rescue Practitioner: The Airline Pilots’ Association of South Africa Judgment

by | Apr 23, 2023 | ILJ, ILJ V42 I3

Case Note: The Lock-out as a Tool for the Business Rescue Practitioner: The Airline Pilots’ Association of South Africa Judgment

Authors Stefan van Eck & André Boraine

ISSN: 2413-9874
Affiliations: Professor of Labour Law, University of Pretoria; Professor of Insolvency Law, University of Pretoria, Director of the Unit for Insolvency and Business Rescue Law
Source: Industrial Law Journal, Volume 41 Issue 3, 2021, p. 1390 – 1404

Abstract

The South African Airways was placed under business rescue in December 2019. The appointed business rescue practitioners (BRPs) sought to terminate a collective agreement between the SAA and the pilots’ trade union. Negotiations failed and the BRPs commenced with a lock-out. The court considered the provisions of the Companies Act and Labour Relations Act and concluded that the lock-out was a legitimate negotiating tool during business rescue. The authors question whether these Acts are appropriately aligned and they opine that the general principles pertaining to collective bargaining may not serve the aims of expeditious business rescue proceedings in all circumstances.

Case Note: Defining Discrimination on an Arbitrary Ground: A Discussion of Minister of Justice & Correctional Services & others v Ramaila & others (2021) 42 ILJ 339 (LAC)

by | Apr 23, 2023 | ILJ, ILJ V42 I3

Case Note: Defining Discrimination on an Arbitrary Ground: A Discussion of Minister of Justice & Correctional Services & others v Ramaila & others (2021) 42 ILJ 339 (LAC)

Author Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Senior Lecturer in Labour Law, Faculty of Law, University of Pretoria
Source: Industrial Law Journal, Volume 41 Issue 3, 2021, p. 1405 – 1416

Abstract

This case note examines the interpretation given by the Labour Appeal Court (LAC) in Minister of Justice and Correctional Services & others v Ramaila & others to the term ‘arbitrary ground’, as contained in s 6(1) of the Employment Equity Act. Its conclusion is that the narrow approach adopted by the LAC was incorrectly decided. The court failed to interpret s 6(1) in a purposive manner, which requires a holistic consideration of the objectives of the EEA, a proper consideration of the constitutional rights promoted by the EEA, and a circumspect evaluation of international law.

Labour Dispute System Design — Dispute Resolution, Conflict Management or Problem Solving?

by | Apr 23, 2023 | ILJ, ILJ V41 I4

Labour Dispute System Design — Dispute Resolution, Conflict Management or Problem Solving?

Author Dhaya Pillay

ISSN: 2413-9874
Affiliations: Judge of the High Court (KwaZulu-Natal), Extraordinary Professor of Law (Pret), BProc (UNISA), LLM (KwaZulu-Natal), LLB (UNISA), LLD (Pret)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2237 – 2273

Abstract

South Africa’s labour dispute system design (DSD) elevates mediation as the primary means of resolving conflict. Notwithstanding this, mediation is avoided if not undermined, with deleterious consequences for democracy. Dialogue degenerates. Processes proliferate. Costs ramify. A default to litigation results in subverting the opportunity for designing consensual outcomes in favour of succumbing to the unpredictability of litigation. Sacrificing an effective labour DSD at the altar of lawfare is illustrated through a study of Solidarity (obo Barnard) v SAPS. What induces the choice of process? In any case before three, five or eleven judges, in which five facts and two rules are relevant, there can be as many permutations of rules to facts as there are judges. What induces the choice of rules and facts? Interrogating choice is a way of unlocking understanding why litigants, lawyers and judges make the choices that they do. Participating in dialogue enables understanding; it is a path towards peaceful transformation. Implementing an effective DSD fortifies litigation as the primary state sponsored means of not only determining disputes peacefully but also managing conflict by resolving problems effectively. However, without sufficient common aims and reciprocity in society, dialogue and our DSD are dead in the water.

The Courts, the Amendments and the Excluded: A Critical Analysis of the Labour Appeal Court’s Approach to Triangular Employment Relationships

by | Apr 23, 2023 | ILJ, ILJ V41 I4

The Courts, the Amendments and the Excluded: A Critical Analysis of the Labour Appeal Court’s Approach to Triangular Employment Relationships

Author Bhavna Ramji & Komnas Poriazis

ISSN: 2413-9874
Affiliations: Attorney, Casual Workers Advice Office (Law Centre), LLB LLM (KwaZulu-Natal); Legal researcher, Casual Workers Advice Office (Law Centre), BA (Hons) MA LLB (Witwatersrand)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2274 – 2293

Abstract

This article traces the judicial responses to the externalisation of workers, particularly through labour brokers or ‘temporary employment services’. In the first section, it explains the constitutional and policy basis for legislative amendments that attempt to bring workers of labour brokers under the protection of the Labour Relations Act, with particular reference to ss 198A and 200B of the Act. In the second section, it considers a recent Labour Court judgment which appears to do the opposite. Specifically, the court seemed to narrow the potential for labour broker workers to protect their workplace rights using the amendments through its interpretation of a TES under the LRA. In the third section, the article argues that the Labour Court judgment reflects the approach apparent in a number of Labour Appeal Court (LAC) decisions. Three LAC judgments are critically discussed to demonstrate how these decisions have had the effect of protecting some of the most egregious examples of externalisation. The article concludes with possibilities for new areas of intervention for legislators and scholars, and reflects on the difficulties which face labour broker workers (and their representatives) if the position reflected in these decisions is not revised.

The Independence of Newspaper Editors as an Enforceable Constitutional Right?

by | Apr 23, 2023 | ILJ, ILJ V41 I4

The Independence of Newspaper Editors as an Enforceable Constitutional Right?

Author Colin Kahanovitz SC

ISSN: 2413-9874
Affiliations: Advocate of the High Court of South Africa, Member of the Cape Bar, BCom LLB (UCT)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2294 – 2310

Abstract

The author seeks to examine the extent to which, in the case of a newspaper editor, the common law duty of an employee to obey instructions is impacted on by the constitutional rights of freedom of expression and the right to information. The author asks whether an editor whose editorial independence is unjustifiably limited or denied by her employer can lawfully disobey an instruction from the owner to refrain from publication on the grounds that the Constitution permits her disobedience because it protects a free press? The author argues that being an employee, the editor is still subject to the policies and instructions of the employer but because she is an editor of a newspaper she is a different kind of employee protected in appropriate limited circumstances from suffering occupational detriment for publication in defiance of an owners instruction, namely where her disobedience was publishing content consistent with journalistic ethics and reasonably required to promote freedom of expression and the public’s right to know. The author argues that press freedom requires protection for news-producing employees not only from state power but also from media owning private interests.

The Role of Trade Unions in South Africa: Towards the Inclusion of Persons with Disabilities in the Workplace

by | Apr 23, 2023 | ILJ, ILJ V41 I4

The Role of Trade Unions in South Africa: Towards the Inclusion of Persons with Disabilities in the Workplace

Author Lindani Nxumalo

ISSN: 2413-9874
Affiliations: Attorney, PhD (UKZN)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2311 – 2327

Abstract

Trade unions can play a vital role in the workplace. They are constitutionally recognised as one of the pertinent stakeholders in strengthening democracy and promoting sound labour relations. Additionally, various employment laws and disability policies recognise them as key role players in the inclusion of persons with disabilities in the workplace. Despite such provisions, persons with disabilities continue to suffer inequalities in the working environment. Their prospects of employment are rare, they struggle to retain employment where employed and are stigmatised by both employers and society more broadly. Even when employed, they are often not reasonably accommodated. This article argues that while trade unions are at the forefront of fighting for workers’ rights, they have been less successful in creating an awareness of disability matters and engaging employers effectively on non-compliance with disability related provisions. It contends that through strategic litigation, a robust approach and collective bargaining, they can significantly improve the achievement of substantive equality for disabled persons in the world of work.