Legislative Note: The new Labour Bills: An overview and analysis

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Legislative Note: The new Labour Bills: An overview and analysis

Authors Shane Godfrey, Darcy du Toit, Mario Jacobs

ISSN: 2413-9874
Affiliations: Coordinator, Labour and Enterprise Policy Research Group, University of Cape Town; Emeritus Professor, Faculty of Law, University of the Western Cape; Researcher, Labour and Enterprise Policy Research Group, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2161 – 2189

Abstract

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Revisiting strikes in essential services

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Revisiting strikes in essential services

Authors Darcy du Toit, Mario Jacobs, Roger Ron

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape; Researcher, Labour and Enterprise Policy Research Group, Faculty of Law, University of Cape Town; Researcher, Social Law Project, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2131 – 2147

Abstract

Strikes and lock-outs in ‘essential’ and ‘maintenance’ services are prohibited in South Africa; disputes between workers and employers in essential services must be referred to arbitration. Despite this, strikes in essential services are far more common than arbitration proceedings. The article argues that this is not simply a legal problem but that unprotected or unlawful strike action is driven by socio-economic and historic dynamics, above all by the extreme inequality dividing South African society. It examines a number of alternative mechanisms that could be used to supplement the existing dispute resolution system, including the determination of minimum services by the Essential Services Committee. However, the question remains to what extent parties would adhere to minimum service determinations made against their will. The article argues that successful remedial measures would have to be based on an appropriate balance between workers’ right to strike and the public right of access to essential services. To achieve this, it suggests, negotiations between employers, unions, and other organisations that are genuinely representative of all relevant stakeholders, including users of essential services, would be crucial.

The conundrum of unclaimed retirement benefits held by South African Retirement Funds

by | Oct 4, 2019 | ILJ, ILJ V39 I4

The conundrum of unclaimed retirement benefits held by South African Retirement Funds

Authors Clement Marumoagae

ISSN: 2413-9874
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2107 – 2130

Abstract

This article examines the manner in which retirement fund benefits belonging to former retirement fund members or their beneficiaries are dealt with in South Africa. In particular, it highlights the difficulties associated with tracing former members and their beneficiaries who are entitled to receive these benefits. Relevant legislation dealing with unclaimed benefits in South Africa is discussed with a view to assessing whether it provides any solution to the challenge relating to the payment of these benefits. The article advances the argument that there is a need to establish a central unclaimed benefits fund mandated to address the challenge of unclaimed benefits in South Africa.

Should precarious work be the focus of Labour Law?

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Should precarious work be the focus of Labour Law?

Authors Darcy du Toit

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2089 – 2106

Abstract

This article draws on the findings of a joint research project conducted by researchers at the University of Cape Town and the University of the Western Cape, together with Workers World Media Productions during 2016-2017. It uses the term ‘precarious work’ to refer to the various forms of ‘non-standard’ or ‘vulnerable’ work that are characterised by a lack of adequate legal protection. The reasons for this, it argues, lie in the absence of appropriate mechanisms in the existing labour law framework for addressing the conditions of precarious workers. It suggests that alternative means of workplace regulation which are more responsive to the needs of precarious and marginalised workers are required, involving the devolution of regulatory powers to appropriate levels. Enabling legislation is proposed to create inclusive regulatory processes in different work or social domains, including supervision by higher organs of state with residual powers to ensure that the public interest is safeguarded. Such an approach, it argues, is consistent with the constitutional principle of substantive equality, and could help to rejuvenate labour law at a time when its structures are increasingly less able to engage with a changing work environment.