Dispute resolution under the Labour Relations Act: Practical omplications of the amendments to section 145 on the furnishing of security

by | Oct 4, 2019 | ILJ, ILJ V38 I1

Dispute resolution under the Labour Relations Act: Practical omplications of the amendments to section 145 on the furnishing of security

Authors Yolande Springveldt

ISSN: 2413-9874
Affiliations: Admitted Attorney of the Gauteng North High Court; Lecturer in Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 38 Issue 1, 2017, p. 63 – 79

Abstract

A review application in terms of s 145 of the Labour Relations Act is valuable in remedying a defective arbitration award granted in favour of an employee but has proven to be somewhat challenging. Undue delays, generally by employers, in finalising the prosecution of these applications, have been identified as a particular concern and as a result amendments to s 145 reviews were introduced. They provide particularly for the furnishing of security in order to stay the enforcement of an arbitration award. Although the aim is to eradicate the abuse of the proceedings by employer-applicants, who instituted such applications simply to frustrate the enforcement of arbitration awards, the practical application and enforcement thereof seem to be prejudicial to both parties involved rather than address the concerns which initially gave rise to the amendments. A reading of the amended sections and related jurisprudence point to the challenging nature of s 145 reviews and the fact that our courts are grappling with how best to deal with this issue. The failure adequately to address the problem may result in the amendments becoming a hindrance to effective dispute resolution.

Reflections on the constitutionalising of individual labour law and labour rights in Zimbabwe

by | Oct 4, 2019 | ILJ, ILJ V38 I1

Reflections on the constitutionalising of individual labour law and labour rights in Zimbabwe

Authors James Tsabora, Tapiwa Givemore Kasuso

ISSN: 2413-9874
Affiliations: Lecturer, Midlands State University, Gweru, Zimbabwe; Lecturer, Midlands State University, Gweru, Zimbabwe
Source: Industrial Law Journal, Volume 38 Issue 1, 2017, p. 43 – 62

Abstract

The adoption of the 2013 Constitution of Zimbabwe provides an interesting opportunity to explore the potent symbolism and practical significance of constitutional labour rights that, until now, have been conspicuously absent in the Declaration of Rights. The fact that the labour rights framework is a closely contested space characterised by conflicts and tensions suggests that the constitutional entrenchment of labour rights in the 2013 Constitution can only be welcome. There is therefore a strong basis for the contention that the adjudication of labour disputes on the basis of indirect constitutional interpretation and the application of traditional civil and political rights such as freedom of assembly should be abandoned as they have proven unhelpful in the development of labour law jurisprudence in Zimbabwe. This article argues that constitutional entrenchment of labour rights elevates such rights to human rights, and further provides a sound foundation for their broader enjoyment and protection. Accordingly, judicial interpretation of constitutional labour rights, it is proposed, should ensure progressive development of the jurisprudence around these rights, and move away from the previous pedantic approaches to interpretation. The clarion call is that only through such progressive interpretation can the various tensions, conflicts and disputes that necessarily characterise the labour rights system be resolved in the broader interests of society.

A consideration of the employment rights of asylum seekers and refugees within South Africa as contextualised by the Watchenuka and Discovery Health judgments

by | Oct 4, 2019 | ILJ, ILJ V38 I1

A consideration of the employment rights of asylum seekers and refugees within South Africa as contextualised by the Watchenuka and Discovery Health judgments

Authors Daven Dass, Alicia Leanne Raymond

ISSN: 2413-9874
Affiliations: Director of the Wits Law Clinic, Lecturer and Practising Attorney, School of Law, University of Witwatersrand; Associate Lecturer and Practising Attorney, School of Law, University of Witwatersrand
Source: Industrial Law Journal, Volume 38 Issue 1, 2017, p. 26 – 42

Abstract

Many foreign nationals arrive in South Africa because they are fleeing their countries of origin based on a well-founded fear of persecution caused by conflicts affecting their countries. Having arrived in South Africa these foreign nationals are required to apply for asylum in terms of the Refugees Act. Problems arise where during the process their application for asylum is rejected, or their refugee status is withdrawn with the result that they become undocumented migrants. Because the Immigration Act prohibits foreign nationals from being employed in South Africa without a work permit or refugee status, undocumented migrants in the country are unable to sustain themselves by finding lawful employment. This article explores the employment rights of such undocumented migrants in light of the courts’ decisions in Watchenuka and Discovery Health. These cases respectively find that it is unconstitutional to bar foreign nationals from seeking employment, and that undocumented migrants are employees and should therefore be afforded the same employment rights and legislative protections against dismissal as other lawful employees. It is concluded that while the position of undocumented foreign migrants remains precarious, the courts’ findings in these two cases provide some reprieve to foreign nationals.

Labour law, economic development, and the minimum wage: Comparative reflections on the South African debate

by | Oct 4, 2019 | ILJ, ILJ V38 I1

Labour law, economic development, and the minimum wage: Comparative reflections on the South African debate

Authors Simon Deakin

ISSN: 2413-9874
Affiliations: Professor of Law, University of Cambridge
Source: Industrial Law Journal, Volume 38 Issue 1, 2017, p. 1 – 25

Abstract

As South Africa debates the introduction of a statutory minimum wage, this article reviews comparative evidence on the economic and social effects of minimum wage laws. Minimum wages can be found in countries at all levels of development and have recently experienced a revival after a period of relative decline under the influence of neoliberal economic policies during the 1980s and 1990s. Minimum wage laws have persisted because they are highly effective in addressing in-work poverty while encouraging technological and organisational improvements by firms. They also help to maintain the tax base and limit the extent of public expenditure on fiscal transfers aimed at enabling households to access a living income. In the case of developing countries, they can help bridge the middle income gap by underpinning demand for locally produced goods and services and by supporting industrial upgrading. Experience suggests that minimum wages need to be set at a relatively high level, closer to 60% than 40% of average wages, if they are to induce significant social and economic upgrading, but that getting to this level requires not just the marshalling of evidence but the building of consensus on the part of key actors in government and industry and across civil society. Comparative evidence also points to the importance of minimum wages acting as a complement to, and not a substitute for, sector-level collective bargaining. These points are explored in detail through an analysis of the evolution of the British minimum wage system, and some implications are drawn for the South African debate.