South African Labour Law Mapping the Changes — Part 2: The History of Labour Law and its Institutions

by | Apr 23, 2023 | ILJ, ILJ V41 I1

South African Labour Law Mapping the Changes — Part 2: The History of Labour Law and its Institutions

Authors Paul Benjamin & Halton Cheadle

ISSN: 2413-9874
Affiliations: Extraordinary Professor, Department of Mercantile and Labour Law, University of the Western Cape; Director, Cheadle Thompson and Haysom Inc.; Emeritus Professor, Department of Public Law, University of Cape Town; Director, Bradley Conradie Halton Cheadle
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 1 – 47

Abstract

This article is the second part of a survey of South African labour legislation in the post-apartheid period. It examines the evolution of the law of unfair dismissal and the controversies surrounding the legislative protection of workers in non-standard employment in this period. Thereafter, it examines the impact of the Employment Equity Act 55 of 1998 as a mechanism for achieving greater equality in the workplace and the contribution of the Unemployment Insurance Act 63 of 2001 to providing social security for working people.

Joining the ‘Old Boys’ Club’: Equality for Women in the South African Judiciary and Other Male-Dominated Workplaces

by | Apr 23, 2023 | ILJ, ILJ V41 I1

Joining the ‘Old Boys’ Club’: Equality for Women in the South African Judiciary and Other Male Dominated Workplaces

Author D M Smit

ISSN: 2413-9874
Affiliations: Associate Professor of Mercantile Law, University of the Free State
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 48 – 70

Abstract

Decent work in a world buffeted by ‘change and inequality’1 lies at the heart of the ILO’s development goal 8. The South African National Development Plan, with its 2030 goals, also directs attention to transforming South African workplaces in which women still suffer the after-effects not only of a racially divided country but of patriarchy and other lesser-known barriers to entry and advancement. Despite s 174 of the South African Constitution that calls for the appointment of judicial officers to reflect broadly the racial and gender composition of our county, gender equality in the judiciary still seems to be a distant dream given the continuing underrepresentation of women in that sector. Although white women were permitted to join the judiciary in 1923 and the first appointment of a black female attorney occurred in 1967, the judiciary still fails to reflect the statistical representation of women in the population. Even in 2019 the government failed to use the opportunity to appoint women to the high-profile, state capture cases currently under investigation. This persistence of an ‘old boys’ club’ approach to the appointment of women in the judiciary calls for further investigation and real solutions.

The Extension of Bargaining Council Agreements: What Guidelines Can South Africa Gain from the International Labour Organisation?

by | Apr 23, 2023 | ILJ, ILJ V41 I1

The Extension of Bargaining Council Agreements: What Guidelines Can South Africa Gain from the International Labour Organisation?

Authors Mynie Kriek & Stefan van Eck

ISSN: 2413-9874
Affiliations: This article is based on research conducted by Ms Mynie Kriek for purposes of her research master’s degree in labour law at the University of Pretoria (UP) under the guidance of Professor Stefan van Eck.; Professor of Labour Law, University of Pretoria
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 71 – 87

Abstract

The extension of bargaining council agreements to non-members and minority parties is not a new phenomenon in South African labour law. Section 32 of the Labour Relations Act 66 of 1995 (LRA) provides that the Minister of Labour1 has an obligation to extend collective agreements if the majority parties to a bargaining council so request. This provision has been amended on two occasions and it has also been contested in Free Market Foundation v The Minister of Labour & others (2016) 37 ILJ 1638 (GP). This contribution examines the question whether, measured by international standards, there is an inherent defect in s 32 of the LRA. It is recommended that the LRA should be amended to comply with all the guidelines of the International Labour Organisation.

Note: The Employment Equity Amendment Bill 2018: Grappling with an Evaluation of ‘Equity’ 20 Years Later

by | Apr 23, 2023 | ILJ, ILJ V41 I1

Note: The Employment Equity Amendment Bill 2018: Grappling with an Evaluation of ‘Equity’ 20 Years Later

Authors Shamima Gabie & Prinoleen Naidoo

ISSN: 2413-9874
Affiliations: Director, Cheadle Thompson and Haysom Inc.; Senior Associate, Cheadle Thompson and Haysom Inc.
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 88 – 103

Abstract

This note focuses on the Employment Equity Amendment Bill 2018 (EEAB) which contains significant proposed amendments to the Employment Equity Act (EEA). These proposed amendments are considered with reference to the report of the South African Human Rights Commission (SAHRC) entitled ‘Achieving Substantive Economic Equality through Rights-based Radical Socio-economic Transformation in South Africa’ 2017-2018 (equality report), which contends that the definition of designated groups is not in compliance with constitutional or international law obligations and recommends that the EEA be amended to target more nuanced groups determined on the basis of need and taking into account social and economic indicators. The approach of some countries that have adopted similar proposals to those made in the equality report are also considered. The status of the equality report is also examined with reference to the recent Labour Court judgment in Solidarity v Minister of Labour and Others in which Solidarity attacked the constitutionality of s 42 of the EEA and sought an order confirming the findings and recommendations made in the report, in so far as they relate to the EEA.

Case Note: The Right to Union Representation in Individual Workplace Disputes: Whose Right Is It Anyway? Thoughts on Solidarity v SA Police Service & others

by | Apr 23, 2023 | ILJ, ILJ V41 I1

Case Note: The Right to Union Representation in Individual Workplace Disputes: Whose Right Is It Anyway? Thoughts on Solidarity v SA Police Service & others

Author Emma Fergus

ISSN: 2413-9874
Affiliations: Senior Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 104 – 115

Abstract

Solidarity v SA Police Service & others dealt with an application by an unrepresentative trade union seeking permission from the employer of one of its members to have a Solidarity official represent her during an individual grievance hearing. The Labour Court referred inter alia to the limited provisions of the Labour Relations Act (LRA) governing organisational rights in finding that there was no statutorily enforceable right available to unrepresentative trade unions to enter the employer’s premises for the purposes of representing their members in individual grievance hearings. In doing so, however, the court suggested that the LRA may be unconstitutional in failing to provide such a right — an issue which was not before the court in the case. This case note considers the merits of the Labour Court’s suggestion, proposing an alternative interpretation of the LRA, premised on the right to freedom of association, which avoids a finding that the Act is unconstitutional. In acknowledging differences of opinion on the matter, factors for consideration if a full limitations clause analysis was to be undertaken are also briefly examined.