Case Note: Some thoughts on claims for compensation and damages for automatically unfair dismissals and discrimination: A discussion of Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC)

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Case Note: Some thoughts on claims for compensation and damages for automatically unfair dismissals and discrimination: A discussion of Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC)

Authors Dhashina Moodley, Nicola Whitear-Nel

ISSN: 2413-9874
Affiliations: LLM candidate, University of KwaZulu-Natal; Senior Lecturer, University of KwaZulu-Natal
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 907 – 914

Abstract

None

Benefits: Have we found the way out of the labyrinth?

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Benefits: Have we found the way out of the labyrinth?

Authors Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; Director, Institute of Development and Labour Law
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 888 – 899

Abstract

Ever since the enactment of the Labour Relations Act 66 of 1995, the meaning of the benefits-related unfair labour practice presented difficulties to both judges and arbitrators. These difficulties were mainly caused by the desire to maintain a firm distinction between rights and interest disputes and, flowing from this, the insistence that benefits and remuneration were two different things. The interpretation of this unfair labour practice was further complicated by a judgment of the Labour Appeal Court in 2000, suggesting that only benefits originating from contract or legislation are subject to the unfair labour practice jurisdiction. The article argues that the recent judgment of the Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others\xc2\xa0(2013) 34 ILJ 1120 (LAC), while diluting the importance of the distinction between rights and interest disputes and that between benefits and remuneration, fails explicitly to dispel the relevance of contract in the context of this unfair labour practice. The article further argues that, contrary to earlier wisdom, this unfair labour practice can be used to assert currently enforceable entitlements.

Employee-made intellectual property: Statutory considerations for the contractual regulation of ownership

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Employee-made intellectual property: Statutory considerations for the contractual regulation of ownership

Authors Lee-Ann Tong

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 870 – 887

Abstract

Intellectual property rights are valuable for the competitive advantage they secure for intellectual property owners. The intellectual property system generally recognises authors and inventors as the first owners of copyright, designs, and patents. The bulk of valuable intellectual property is made by employee-authors and inventors who are employed for the purpose of creating the intellectual property or who do so using their employers’ resources. Employers therefore have an interest in owning employee-made intellectual property. Although copyright, patents and registered designs are all intellectual property rights, they are regulated by separate statutes and the approach to the allocation of first ownership of employee-made intellectual property differs accordingly. The result is that there is no consistency in the first ownership of copyright works, patented inventions and registered designs made by employees. Because copyright, patents and registered designs may be transferred, employers could consider using the contact of employment to regulate ownership for employee-made intellectual property where they prefer to deviate from the statutory first ownership rule. However, the usefulness of contract in this situation is limited by statutory restrictions in the intellectual property legislation on the freedom to contract.

Organisational and collective bargaining rights through the lens of Marikana

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Organisational and collective bargaining rights through the lens of Marikana

Authors Jan Theron, Shane Godfrey, Emma Fergus

ISSN: 2413-9874
Affiliations: Practising Attorney; Co-ordinator of the Labour and Enterprise Policy Research Group, Deputy Director of the Institute of Development and Labour Law, University of Cape Town; Senior Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 849 – 869

Abstract

This article is based on research conducted for a submission to the Marikana Commission that focused on the issue of organisational and collective bargaining rights at Lonmin as well as Implats and Amplats. It comprised an examination of the recognition agreements which the three companies had entered into with trade unions, over the decade or so before the massacre. This gave us insight into how management and trade unions were interpreting and elaborating on the organisational rights provided for in the Labour Relations Act (LRA). We were therefore able to reflect critically on those provisions, the different choices made by management and trade unions at the companies, as well as the CCMA’s and Labour Court’s interpretations of relevant legislative provisions during organisational rights disputes. The recognition agreements at Lonmin and Implats reveal an uneasy mix of the ‘old’ recognition system and the new organisational rights dispensation: the bargaining unit remains the reference point for measuring representativeness rather than the ‘workplace’; there is almost no provision for the possibility of union competition; undifferentiated thresholds are set for all the organisational rights; and thresholds are sometimes raised to protect incumbent unions from newcomer unions. The agreement at Amplats, however, is an exception. The article concludes that the limited organisational rights dispensation provided by the LRA has not achieved the right balance between labour relations stability and workplace democracy.

Speedy social justice: Streamlining the statutory dispute resolution processes

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Speedy social justice: Streamlining the statutory dispute resolution processes

Authors Andre van Niekerk

ISSN: 2413-9874
Affiliations: Judge of the Labour Court
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 837 – 848

Abstract

Speedy social justice is the fundamental value on which the statutory dispute resolution system is based. Systemic delays in the processing of labour disputes threaten to undermine statutory goals, especially in the Labour Court. The appointment of a Rules Board, the creation of additional courts in Johannesburg and the institution of case management will improve the adjudication process. The latter will require the transfer of the management of litigation from practitioners to judges. In the case of the CCMA, delays in the determination of disputes are primarily a function of the duplication of workplace processes. Disputes appear to be referred to a statutory mechanism routinely, regardless of the merits of the dispute. The CCMA’s rules (which do not require a claim to be articulated in any detail), the application of the onus of proof and the reluctance of commissioners to grant costs orders encourage this practice. Arbitration proceedings are unnecessarily protracted, and review procedures unnecessarily burdensome. The statutory imperative of speedy social justice requires an evaluation of the statutory dispute resolution system as an integrated whole, and a revision of policies and practices that serve to frustrate rather than facilitate the efficient, inexpensive and expeditious resolution of labour disputes.