Case Note: Association of Mineworkers & Construction Union & others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) & others (2020) 41 ILJ 1837 (CC)

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

Case Note: Association of Mineworkers & Construction Union & others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) & others (2020) 41 ILJ 1837 (CC)

Author Richard Haslop

ISSN: 2413-9874
Affiliations: Executive Consultant, Woodhead Bigby Inc, BA, BJuris, LLB, PG Dip IR
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2328 – 2334

Abstract

In AMCU & others v Ngululu Bulk Carriers & others the Constitutional Court explained that, where the reason for a dismissal fell within the parameters defined in s 191(5)(b) of the Labour Relations Act, the dismissed employee could choose, post-conciliation, whether to refer the dispute to the Labour Court for adjudication or to the CCMA or bargaining council for arbitration. This note examines the extent to which this explanation differs from previous jurisprudence and the current practice, whether the explanation consisted of obiter remarks, and whether this interpretation is likely to be followed in the future.

Towards Legal Regulation of Platform Work: Theory and Practice

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Towards Legal Regulation of Platform Work: Theory and Practice

Authors Darcy du Toit, Sandra Fredman & Mark Graham

ISSN: 2413-9874
Affiliations: Emeritus Professor and Coordinator, Labour Law 4.0 niche area, University of the Western Cape; Rhodes Professor of the Laws of the British Commonwealth and the USA, University of Oxford; Professor of Internet Geography, Oxford Internet Institute, University of Oxford
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1493 – 1523

Abstract

Digital platform work, while playing an increasingly important part in low- as well as high-income countries, is characterised by an absence of effective labour regulation. In particular, the norm is for workers to be classified as ‘independent contractors’, thus placing them beyond the ambit of labour legislation. The article, based on interactive research by the Fairwork project,2 examines ways of protecting workers’ basic rights in this environment. This is seen as part of the long-standing effort to include non-standard workers within the framework of labour legislation. However, the premise is that dedicated regulation rather than a simple extension of existing labour rights is required. The article starts by considering the category of dependent ‘workers’ who are deserving of such protection over and above ‘employees’, while excluding genuinely independent entrepreneurs. It then uses five standards of decent work developed by the Fairwork project (fair earnings, fair conditions, fair contracts, fair management and fair representation) as a basis for working out forms of regulation that would bring about the effective protection of workers’ rights. While reputational pressure exerted by Fairwork’s rating system provides a critical impetus for improvement, it is argued that binding legal rules are needed to prevent exploitation by platforms that reject voluntary compliance. It concludes by considering the practical prospects of implementing legislative reform, and the importance of generating the political will to do so on the part of policy-makers, with reference to the precedent of the enactment of labour legislation during the first and second industrial revolutions.

Albinism in the South African Workplace: A Labour Law Perspective

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Albinism in the South African Workplace: A Labour Law Perspective

Author L Fourie

ISSN: 2413-9874
Affiliations: Lecturer in the Department of Mercantile Law, University of the Free State, LLB LLM PDFP (UFS) PhD Candidate (Leiden University)
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1524 – 1546

Abstract

Persons living with albinism represent one of society’s most defenceless groups. An estimated one in 5 000 Africans living south of the Sahara are affected by albinism. Persons with albinism experience a lack of melanin, resulting in physical impairments, including poor vision and skin cancers. These disorders set the scene for such people to be subjected to different treatment on the basis of their racial affiliation, colour, and disability — thus requiring that they receive special protection against unfair discrimination. The South African Constitution provides for a right to equality and prohibits the unequal treatment of persons on the basis of their race, colour and disability. This constitutional right is promoted within the labour market by way of the Employment Equity Act, which aims to achieve fair treatment by eliminating unfair discrimination in employment. A vital measure against discrimination that can be executed to achieve equality in the workplace is the reasonable accommodation duty of employers. This duty constitutes one of the affirmative action measures designed to redress disadvantages in employment experienced by designated groups (identified as black people, women and people with disabilities). While the duty to reasonably accommodate is thus legally recognised, no enforceable legal instrument elaborates on the meaning and scope thereof. Furthermore, the law in respect of applying affirmative action measures is silent on how colour and disability should be understood. Bearing in mind that persons affected by albinism will experience difficulties in demonstrating that they fall within the black or disabled category in order to share the benefits of the designated groups, their entitlement to reasonable accommodation will also be restricted. This article aims to illustrate to what degree South African law currently fails to protect persons with albinism in the workplace and in what way it should be amended in order to serve their needs.

The Right Not To Be Discriminated Against in Employment in Kenya

by | Apr 23, 2023 | ILJ, ILJ V41 I3

The Right Not To Be Discriminated Against in Employment in Kenya

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1547 – 1567

Abstract

Section 5(3)(a) of the 2007 Kenyan Employment Act prohibits employers from discriminating against employees on specified grounds. Likewise, article 27(4) of the 2010 Constitution also prohibits discrimination on certain grounds some of which are not included in the Employment Act. Jurisprudence dealing with discrimination matters from the Employment and Labour Relations Court (ELRC) (formerly known as the Industrial Court) indicates the extent to which the court has protected employees’ right to freedom from discrimination. There are cases, however, in which the ELRC has reached debatable conclusions, for example, by holding that the list of grounds under s 5 of the Act is exhaustive. There are also cases in which employees have alleged discrimination by employers where the court has placed more emphasis on the Constitution as opposed to the Employment Act. The author analyses these cases by focusing on the following issues: the definition of discrimination; prohibited grounds of discrimination; permissible discrimination; burden of proof and standard of proof when an employee alleges discrimination; and employers’ accountability for discrimination. Where necessary, the author suggests ways in which the ELRC can better approach the issue of discrimination.

Note: Section 189(1) of the Labour Relations Act 66 of 1995: Irrational, Unreasonable or Neither? Association of Mineworkers & Construction Union & others v Royal Bafokeng Platinum Ltd & others (2020) 41 ILJ 555 (CC)

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Note: Section 189(1) of the Labour Relations Act 66 of 1995: Irrational, Unreasonable or Neither Association of Mineworkers & Construction Union & others v Royal Bafokeng Platinum Ltd & others (2020) 41 ILJ 555 (CC)

Author Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1568 – 1587

Abstract

None

The Contested Terrain of Secret Ballots

by | Apr 23, 2023 | ILJ, ILJ V41 I2

The Contested Terrain of Secret Ballots

Authors Emma Fergus & Mario Jacobs

ISSN: 2413-9874
Affiliations: Dr Emma Fergus, Senior Lecturer, Department of Commercial Law, Labour, Development and Governance Research Unit, University of Cape Town; Mario Jacobs, Researcher, Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 757 – 778

Abstract

The issue of strike ballots, and particularly secret strike ballots, has a charged and controversial history in South Africa. The Labour Relations Amendment Act 8 of 2018 (LRAA 2018) nonetheless introduced a requirement that the constitutions of all registered unions contain provisions providing for pre-strike ballots which should be both recorded and conducted in secret. As was the case prior to the inception of the LRAA 2018, however, the failure of a union to conduct such a ballot is not a basis on which the legality or protected nature of an ensuing strike may be contested. Despite this, the Labour Court has interpreted the transitional provisions (s 19) of the LRAA 2018 as obliging all unions whose constitutions do not incorporate provisions requiring secret strike ballots to conduct such ballots. Strikes may not proceed until this has been done. In this article, we explore the implications of this approach (read with the Guidelines on Balloting which have been issued by the Minister) both at the practical level and for the right to strike. While the court has held that the obligation to conduct a secret ballot prior to a strike does not limit the right to strike, we disagree. Thus, in line with established principles of statutory interpretation we propose an alternative reading of the transitional provisions, which is better aligned with the purposes of the LRA (and its amendments) and the constitutional rights at stake. To the extent that our interpretation places an undue strain on the language of s 19 of the LRAA 2018, we recommend that a limitations clause analysis be conducted or a higher court reviews the Labour Court’s approach.

Excessive Stress and Eliminating Barriers to Decent Work

by | Apr 23, 2023 | ILJ, ILJ V41 I2

Excessive Stress and Eliminating Barriers to Decent Work

Authors Marika Smuts & Denine Smit

ISSN: 2413-9874
Affiliations: Master of Laws (LLM) graduate, University of the Free State; Associate Professor of Mercantile Law, University of the Free State
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 779 – 803

Abstract

The world of work has changed dramatically across the globe. Increasing demands in the workplace, the emergence of new methods of arranging work and the development of new technologies have brought an escalation in the prevalence of excessive stress and, thus, both physical and mental illness in the workplace. This is exacerbated by rising global economic instability, unemployment and political turbulence. In South Africa, employers are under a legal obligation to take reasonable care of their employees and to safeguard their health and safety in the workplace. This duty extends to employees’ right to a workplace that is, as far as reasonably practicable, free of any hazards and risks which may affect their physical and mental health. Accordingly, employers have a duty to protect employees from the harmful consequences of excessive stress in the workplace. Against a background on the prevalence of excessive stress and its impact on employees, employers and society, this article investigates various ways to mitigate the adverse effects of psychosocial hazards or risks in the workplace as a contributor to the occurrence of excessive workplace stress. Attention is given to the influence of ILO standards on occupational safety and health, and the ILO’s goal of decent work and sustainable development.

Hearsay Evidence in Labour Disputes in South Africa

by | Apr 23, 2023 | ILJ, ILJ V41 I2

Hearsay Evidence in Labour Disputes in South Africa

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 804 – 821

Abstract

Section 3 of the Law of Evidence Amendment Act (LEAA) governs the admissibility of hearsay evidence in South Africa. There are many cases in which the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court and the Labour Appeal Court (LAC) have dealt with hearsay evidence. Through these cases, one is able to identify the principles that have been developed, especially by the LAC, to guide itself, the Labour Court and the CCMA when determining the admissibility or otherwise of hearsay evidence. However, there are also some areas that the Labour Court and the LAC may have to improve upon when dealing with hearsay evidence. The purpose of this article is to discuss this case law and suggest ways in which the CCMA, the Labour Court and the LAC can better address the issue of hearsay evidence.

Note: Decoding Section 200B of the LRA: Masoga & another v Pick n Pay Retailers (Pty) Ltd & others (2019) 40 ILJ 2707 (LAC)

by | Apr 23, 2023 | ILJ, ILJ V41 I2

Note: Decoding Section 200B of the LRA: Masoga & another v Pick n Pay Retailers (Pty) Ltd & others (2019) 40 ILJ 2707 (LAC)

Author Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 822 – 833

Abstract

None