ISSN: 2413-9874
Affiliations: Lecturer in Law, University of Johannesburg
Source: Industrial Law Journal, Volume 37 Issue 3, 2016, p. 1574 – 1583
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ISSN: 2413-9874
Affiliations: CCMA accredited bargaining council panellist
Source: Industrial Law Journal, Volume 37 Issue 3, 2016, p. 1552 – 1573
This article interrogates the view that South Africa’s legislation for dismissal based on operational requirements is unduly onerous for employers. It establishes that the obligation to justify collective dismissal in the Labour Relations Act is an internationally accepted practice and that 45 countries listed in the ILO Termination of Employment Digest have mandatory consultation requirements for retrenchment. The South African consultation procedure’s suitability for small business is evaluated and the merits of selective application adopted in some jurisdictions analysed in depth. Innovative alternatives to avoid or minimise the number of dismissals found in some countries are discussed, and national measures to mitigate the adverse effects of such dismissals, such as those for rehiring, are compared with other jurisdictions. The comparative flexibility of selection criteria under the LRA is highlighted and 29 jurisdictions are identified that award higher severance pay for retrenched employees than South Africa. Finally, the requirement of notification of the relevant authorities is outlined, which is an obligation in many countries but not a requirement in South Africa except in the case of mine workers. The article concludes that although South Africa’s law for collective dismissal may be challenging and time-consuming for employers, it is far less onerous than legislation in many other parts of the world.
ISSN: 2413-9874
Affiliations: Senior Lecturer, Institute of Development and Labour Law, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 3, 2016, p. 1537 – 1551
On more than one occasion in recent years, otherwise lawful strikes have turned violent. It is well known that the Labour Relations Act prohibits the institution of civil legal proceedings against employees on the basis of their participation in protected strikes or conduct in contemplation or furtherance thereof. Yet, the Act is silent on the rights of third parties and employers where strikers’ conduct becomes violent, and it does not expressly authorise the Labour Court to suspend violent strikes. In the absence of statutory provisions governing strike violence, the court in National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd recently indicated that violent strikes were ‘dysfunctional to collective bargaining’; in turn they could be interdicted. Are strikes required to be functional to collective bargaining to be lawful however, and in what circumstances may courts intervene during violent strikes? These are some of the questions which this article asks and seeks to answer. An argument is then made that strikes are inherently functional to collective bargaining, and that it is doubtful whether the lawfulness of otherwise protected strikes may be contested on the basis of their dysfunctionality. Even if functionality is a requirement though, it is one which is marred by vulnerability to manipulation by unduly interventionist courts. Thus, a more objective and constitutionally sound approach for interdicting violent strikes is tentatively proposed.
ISSN: 2413-9874
Affiliations: Professor of Law in the Law School of Universidade Federal Minas Gerais (UFMG), Brazil; Professor of Law in the Law School of Universidade Federal Minas Gerais (UFMG), Brazil
Source: Industrial Law Journal, Volume 37 Issue 3, 2016, p. 1523 – 1536
The balance between freedom and equality remains at the very core of labour law. In capitalist societies, where alienation and exploitation of human work is a fundamental element, a legal system that aims to equalise the parties and to guarantee their freedom mitigates the asymmetric nature of the relationship between workers and employers. Nevertheless, in a world with extraordinary rates of poverty and inequality, the meaning of equality and freedom gains multiple layers and new ambiguities. One has to consider as a premise that the current world of work is one of the main loci for the reproduction of inequality and forms of oppression. Most workers are in some kind of vulnerable relationship in the world, many in a position of extreme poverty. As these ‘marginalised’ workers are so predominant, they have become progressively the main issue in labour regulation. Is labour law an adequate arena for fighting inequality, oppression and exclusion? This article aims to rekindle the debate over the meaning of freedom in the fragmented realities of work, going beyond its formal enunciation and taking into account the multiple and persistent inequalities that may prevent its actual experience by workers.
ISSN: 2413-9874
Affiliations: Director, Snyman Attorneys Inc, Johannesburg
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 865 – 879
The article focusses on the interplay of the constitutional rights to freedom of association and collective bargaining, as regulated by the Labour Relations Act. In particular it highlights the conflict between these rights in relation to the issue of organisational rights of minority trade unions. It argues that in terms of the LRA a collective agreement, as the product of the collective bargaining process, has preference over all else, which even includes the right to strike and the contractual freedom of individual employees and minority trade unions. The LRA provides that an employer and a majority trade union may conclude a collective agreement fully regulating their affairs which may be made binding on all the employees of the employer. Organisational rights available to representative and majority unions in terms of the Act are not an end in themselves, but rather a means to an end, that of collective bargaining. In the circumstances where a binding collective agreement has been extended to all employees, no purpose can be achieved by affording organisational rights to a minority trade union in the same workplace. It simply does not matter if the application of the principle of majoritarianism — which the LRA unashamedly supports — causes hardship to, or prejudices the rights of, minorities. Within this context the article discusses the setting under s 18 of threshold agreements between employers and majority trade unions for the acquisition of organisational rights by minority unions, as well as their recourse under the Act to collective bargaining and to striking in support of their demands. It anticipates that the new amendments to s 21 may promote union rivalry and create conflict between that section and s 18.
ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Public and Procedural Law, University of Johannesburg
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 847 – 864
The inherently tenuous relationship between employee and employer can be aggravated when religious discrimination arises in the workplace. This form of discrimination continues to constitute an important part of our equality jurisprudence. The South African legal system has in place a statutory scheme which strongly underpins fundamental values and principles enshrined in the Constitution guaranteeing the right to religious freedom. It is a regulated system ensuring religious freedom in a secular society workplace subject to reasonable limitations. These regulations must be compared with the more flexible ‘context-sensitive’ manner in which our courts adjudicate religious workplace disputes. The uniqueness of our courts not employing a ‘formal’ or ‘universal’ test, but rather a ‘context-sensitive’ approach, aligns itself with a transformative constitutional notion in so far as the judgments seek to develop a jurisprudence in which diverse interests are considered and accommodated, thus emphasising a change to a more informed adjudicative process. Such an approach also translates into certainty as to how future cases are likely to be adjudicated. This certainty is to be welcomed since it is an essential ingredient of the rule of law upon which our democracy relies.