The Contested Terrain of Secret Ballots

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

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

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)

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

Note: Can Employees be Fairly Dismissed for Refusing to Accept a Demand? A Discussion of National Union of Metalworkers of SA & others v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) & another (2019) 40 ILJ 2024 (LAC)

Note: Can Employees be Fairly Dismissed for Refusing to Accept a Demand? A Discussion of National Union of Metalworkers of SA & others v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) & another (2019) 40 ILJ 2024 (LAC)

Author Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Lecturer in Labour Law, Faculty of Law, University of Pretoria
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 834 – 845

Abstract

None