Obstacles and Opportunities for Labour Dispute Resolution Using Videoconferencing Technology

by | Jun 15, 2024 | ILJ, ILJ V45 I2

Obstacles and Opportunities for Labour Dispute Resolution Using Videoconferencing Technology

Authors Nicci Whitear-Nel & Cecile de Villiers

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of KwaZulu-Natal; Postdoctoral Fellow in Law, Stellenbosch University
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 663 – 691
https://doi.org/10.47348/ILJ/v45/i2a1

Abstract

While labour dispute resolution processes are typically conducted in person, rapid advances in technology coupled with the need for speedy, fair and accessible dispute resolution encourages the use of videoconferencing technology in such processes. This article considers the use of videoconferencing in dispute resolution processes by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Education Labour Relations Council (ELRC), a bargaining council operating in the public basic education sector. Although its use was primarily in response to the Covid-19 pandemic, the success of remote hearings has sparked a willingness to incorporate this approach permanently. We identify three advantages occasioned by the flexibility of remote processes. Firstly, hearings may be fully remote or in a hybrid format, increasing available options. Secondly, remote processes offer vulnerable witnesses greater protection and may increase the witness participation rate. Thirdly, they remove many logistical challenges associated with in-person processes and may reduce the number of postponements. Remote processes are, however, not without obstacles. We explore a number of objections to such processes, which are broadly divided into objections related to infrastructure (the digital divide, technological failures, power supply) and those related to procedural and testimonial integrity (the impact of remote processes on formality, representatives, interpreters and intermediaries, data privacy, document management and issues related to witness testimony). Although these are real obstacles to effective remote processes, we argue that the problems are not insurmountable and that remote labour dispute resolution holds benefits for both the CCMA (and bargaining councils) as well as its users.

‘Numerical Targets’ or ‘Quotas’? The Draft Employment Equity Regulations 2023 in Perspective

by | Jun 15, 2024 | ILJ, ILJ V45 I2

‘Numerical Targets’ or ‘Quotas’? The Draft Employment Equity Regulations 2023 in Perspective

Author Davy Rammila

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa; LLB LLM cum laude (University of Johannesburg); LLD Candidate (University of Johannesburg)
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 692 – 719
https://doi.org/10.47348/ILJ/v45/i2a2

Abstract

The 2022 amendments to the Employment Equity Act (EEA) introduced s 15A which empowers the Minister of Employment and Labour to adopt regulations determining sector-specific numerical targets to be taken into account by designated employers in implementing their employment equity plans. Through these regulations, the Minister is able to influence directly the contents of employers’ affirmative action measures. Empowered thereby, the Minister published the Draft Employment Equity Regulations, 2023 that have drawn the ire of certain sections of the public who claim that the draft’s numerical targets are tantamount to quotas operating against certain racial groups. This contribution investigates the validity of the draft regulations within the framework of the EEA and the Constitution. It notes that although the regulations are poorly drafted, the numerical targets are justifiably based on regional demographics and are generally not in violation of the Act. Furthermore, it argues that the numerical targets are designed as affirmative action allocations which the Minister has designated, within each sector, to be subject to his determinations. Ultimately, it concludes that a violation of these instruments occurs only in circumstances involving ‘skilled’ occupational levels for which the Minister appears to impose targets covering all available occupations with no room for the employer’s discretion.

Rethinking Fair Processes for Dealing with Poor Conduct in the Workplace

by | Jun 15, 2024 | ILJ, ILJ V45 I2

Rethinking Fair Processes for Dealing with Poor Conduct in the Workplace

Authors Chris Todd & Nikita Reddy

ISSN: 2413-9874
Affiliations: Partner, Bowmans; Business Partner, Ninety One, formerly Senior Associate, Bowmans
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 720 – 738
https://doi.org/10.47348/ILJ/v45/i2a3

Abstract

Nearly three decades after the legislature enacted the 1995 Labour Relations Act with its accompanying Code of Good Practice: Dismissal, and two decades after the Labour Court made it clear, in Avril Elizabeth, that a formal enquiry is not a necessary element of fair procedure before dismissal, formal adversarial criminal justice style disciplinary processes continue to be regarded as the norm in many workplaces.
This article explores why this is so. It considers whether formal adversarial processes are fairer to employees than informal ones (it concludes that they are not). It identifies challenges with formal processes in the workplace against criteria of efficiency, authority and fairness, and revisits the basic purpose of workplace discipline and the principles that apply.
Finally it puts forward some practical suggestions on an inquisitorial investigation process for dealing with workplace discipline that the authors believe is more appropriate and fair (to both employers and employees) and is better suited to most modern workplaces. It concludes that less formal investigation and decision-making processes of this kind are more efficient for employers, preserve workplace relations, and are ultimately better for employees than their adversarial counterparts.

A Delicate Balancing Act: Does the Majoritarianism Approach in South African Labour Law Infringe the Right to Freedom of Association?

by | Jun 15, 2024 | ILJ, ILJ V45 I2

A Delicate Balancing Act: Does the Majoritarianism Approach in South African Labour Law Infringe the Right to Freedom of Association?

Author Phatelang William Senoamadi

ISSN: 2413-9874
Affiliations: Senior Lecturer, Graduate School of Business Leadership (Unisa); BA, MA (Wits); LLB, MBL (Unisa); PhD (UJ)
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 739 – 757
https://doi.org/10.47348/ILJ/v45/i2a4

Abstract

The article investigates freedom of association rights for trade unions in the context of the majoritarian approach contained in the Labour Relations Act 66 of 1995. It reveals that even in the context of majoritarianism, the labour courts and the Constitutional Court have asserted and indeed protected freedom of association rights by interpreting the law to support the granting of certain organisational rights to minority unions. This notwithstanding, the courts’ approach does not automatically translate into the right to bargain on matters of mutual interest. Furthermore, it is acceptable through ministerial determinations to extend collective agreements reached with the majority union to members of the minority union to a point where the minority union would be precluded from embarking on a strike action on issues that are dealt with in the applicable collective agreement. The article concludes that our courts have by and large succeeded in performing a delicate balancing of the competing notion of majoritarianism and the right to freedom of association.

Notes: Strikingly Misconceived: National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) (2019) 40 ILJ 1957 (CC)

by | Jan 17, 2024 | ILJ, ILJ V45 I1

Notes: Strikingly Misconceived: National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) (2019) 40 ILJ 1957 (CC)

Author Martin Brassey SC

ISSN: 2413-9874
Affiliations: BA (UCT), LLB and HDipTax (Wits), Visiting Professor of Law (Wits), Senior Counsel
Source: Industrial Law Journal, Volume 45 Issue 1, 2024, p. 1 – 24
https://doi.org/10.47348/ILJ/v45/i1a1

Abstract

In this case note I endorse the conclusion reached in Dunlop but quarrel with the reasoning by which it was reached. In particular, I think the treatment of the duty of fidelity, reciprocally owed by each party to the other under the employment contract, was thoroughly misconceived.

Notes: Revisiting Uber Drivers as Employees — Comparing South African and UK Law

by | Jan 17, 2024 | ILJ, ILJ V45 I1

Notes: Revisiting Uber Drivers as Employees — Comparing South African and UK Law

Author André Mukheibir

ISSN: 2413-9874
Affiliations: Professor of Law, Nelson Mandela University; BMus, BJuris, LLB (UPE), BA Hons HDE (Unisa), DIuris (Amsterdam)
Source: Industrial Law Journal, Volume 45 Issue 1, 2024, p. 24 – 41
https://doi.org/10.47348/ILJ/v45/i1a2

Abstract

The UK Supreme Court in the case Uber BV v Aslam [2021] UKSC 5 recently held that Uber drivers in London were workers for the purposes of inter alia minimum wage regulations. In South Africa, the Labour Court in Uber SA Technology Services (Pty) Ltd v National Union of Public Service & Allied Workers (2018) 39 ILJ 903 (LC) (Uber SA) held that the Commission for Conciliation, Mediation and Arbitration (CCMA) had erred in finding that South African Uber drivers were employees of Uber SA. This note compares the two cases, as well as considering the distinction between ‘employees’, ‘workers’ and ‘independent contractors’.