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.

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.