ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 86 – 91
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ISSN: 2413-9874
Affiliations: Lecturer, School of Law, University of KwaZulu-Natal
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 75 – 86
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ISSN: 2413-9874
Affiliations: Research Fellow, University of KwaZulu-Natal; Lecturer, University of KwaZulu-Natal; Senior Lecturer, University of KwaZulu-Natal
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 62 – 74
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ISSN: 2413-9874
Affiliations: None
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 45 – 61
It is common practice for private or public employers to enter into arrangements with service providers in terms of which the employer outsources, to the service provider, certain labour intensive services, such as catering, cleaning, gardening or security. These services may previously have been performed by employees of the outsourcing organisation, or they may have been contracted out to another service provider and the outsourcing organisation is now seeking to change providers or to bring the services back in-house. Although the intention of s 197 of the LRA is to provide protection to employees when a business is transferred as a going concern, the extent to which the definitional elements of s 197 apply when labour intensive services are outsourced, particularly for a second time, or are insourced, is uncertain. Accordingly, labour intensive service workers may be exposed to uncertainty and potential abuse. This article proposes, in light of developments in the UK, including the provisions in the Transfer of Undertakings (Protection of Employment Regulations) of 2006, amending s 197 to apply automatically in circumstances in which labour intensive services are outsourced.
ISSN: 2413-9874
Affiliations: Director, Cheadle Thompson & Haysom Attorneys, Johannesburg; visiting Associate Professor, School of Governance, University of Witwatersrand
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 28 – 44
The Labour Relations Amendment Act of 2014, which came into effect on 1 January 2015, amended s 198 and introduced a new s 198A to prevent abusive practices associated with the placement of workers by temporary employment services (labour brokers). Employees earning below the earnings threshold set by s 6(3) of the Basic Conditions of Employment Act who are placed with clients for more than three months, other than as substitutes, are deemed by s 198A(3)(b) to be employees of the clients for the purposes of the LRA. This article examines the judgment in Assign Services (Pty) Ltd v CCMA & others in which the Labour Court set aside a ruling by a CCMA arbitrator that the effect of s 198A(3)(b) was to make the client the ‘sole’ employer for the purposes of the LRA. It argues that the comments by the court on the nature of the contractual relationship between TESs and the workers they place are inconsistent with the jurisprudence of the Labour Appeal Court and were, in any event, not necessary for the court’s decision.
ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 1 – 27
The growing discourse on ‘labour rights as human rights’ has clarified important areas of convergence as well as tension between these two emancipatory disciplines. The most basic of all human rights is the right to equality, whereas the starting point of labour law is the inequality between worker and employer, not only in terms of bargaining power but also in terms of the worker’s legal subordination within the employment relationship. Though rooted in the law of property, this inequality is implicit in all labour legislation and is also expressed in the entrepreneurial rights of the employer to which the worker’s job security (or very existence as a worker) is subject. The article considers some implications of this contradiction. It notes that the classic labour law response to the power imbalance in the workplace, the promotion of collective bargaining, does not challenge the legal hierarchy. ‘Equality in the workplace’ translates, essentially, into equal treatment of workers by employers but not of worker and employer. All human rights vested in citizens or denizens (for example, the right to information or freedom of assembly) are refined, adjusted or limited through the filter of labour law to leave the inequality of the worker undisturbed. This raises questions about the boundaries of labour law as an emancipatory discipline. While hierarchy is an intrinsic feature of employment in a market-based economy, the same does not follow in respect of ‘work’. Economic and legal arguments in support of the employer’s power of command only explain or justify it to a limited extent. The article suggests an understanding of employees’ right to equality in the workplace indivisibly integrated with their fundamental rights beyond the workplace, limited not by the pre-emptive rights of the employer but, in essence, only by the inherent requirements of the productive process itself.