Note: Skills Development Levies: Contestation and Court Challenges

by | May 25, 2023 | ILJ, ILJ V43 I1

Note: Skills Development Levies: Contestation and Court Challenges

Author Dawn Norton

ISSN: 2413-9874
Affiliations: Director of Employment Law at Mkhabela Huntley Attorneys; BA (Hons), LLB, LLM (Witwatersrand)
Source: Industrial Law Journal, Volume 43 Issue 1, 2022, p. 63 – 73

Abstract

The Skills Development Act 97 of 1998 aims to develop labour force skills through a skills levy on employers. Under the Department of Labour, employers received a proportion of the levy as a mandatory training grant. This proportion decreased substantially in 2009 when the Department of Higher Education and Training (DHET) took charge of skills development. It leveraged the funds for projects primarily in the post schooling/tertiary sector, negatively affecting labour force skills development. The DHET ignored a Labour Appeal Court decision in 2019 declaring the relevant regulations invalid and irrational. This note argues that the skills development levy has been impermissibly appropriated by the DHET for a purpose outside the parameters originally established by the legislature.

Note: The Impact of the Covid-19 Pandemic on Labour Arbitration in Ontario, Canada

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: The Impact of the Covid-19 Pandemic on Labour Arbitration in Ontario, Canada

Author Christopher Albertyn

ISSN: 2413-9874
Affiliations: Arbitrator, Toronto, Canada
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2055 – 2065

Abstract

The note describes the workplace dispute resolution structures in Ontario, Canada, with an account of the role of arbitration in workplace dispute settlement. The focus is on the response of arbitrators, and union and employer counsel to the Covid-19 pandemic. This includes a discussion of procedural developments for the hearing of cases and how some of the substantive pandemic issues have been dealt with. Videoconferencing emerged as a significant method of arbitration. Its long-term impact is discussed, with an assessment of the pros and cons of arbitrations being conducted virtually, and a summary of good practices in videoconference hearings.

Note: Mandatory Vaccinations in the Workplace: Lessons from Covid-19

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: Mandatory Vaccinations in the Workplace: Lessons from Covid-19

Author Monray Marsellus Botha

ISSN: 2413-9874
Affiliations: Professor, Department of Mercantile Law, Faculty of Law, University of Pretoria
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2065 – 2081

Abstract

On 11 June 2021, the government issued a direction that specifically deals with mandatory vaccinations in the workplace. Employees are granted the right to refuse the vaccine on constitutional or medical grounds. Employers, in such instances, should take into consideration the rights of employees to bodily and psychological integrity and the right to freedom of religion, belief and opinion (ss 12 and 15 of the Constitution). For employers to implement such a policy, an overall assessment of whether the limitation is reasonable and justifiable should be conducted considering issues such as reasonable accommodation and possible alternative solutions before even considering dismissal.

Note: The Prohibition of Sexual Harassment in the Workplace: It Was Never Just About Sex

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: The Prohibition of Sexual Harassment in the Workplace: It Was Never Just About Sex

Author Thulani Nkosi

ISSN: 2413-9874
Affiliations: Sessional Lecturer, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2081 – 2099

Abstract

This note critiques the current approach to the adjudication of sexual harassment cases through the lens of two conflicting judgments. It argues that our courts have failed to articulate a coherent or a principled vision of sexual harassment law that is broader than the ‘sex guise’ in which sexual harassment cases are often presented. The argument developed in this note is that there has been a failure to differentiate between sex or conduct of a sexual nature and sexual harassment. Because of this failure, our courts appear to have made sex or every conduct of a sexual nature in the workplace a focus area of sexual harassment law. With reference to the historical evolution of the prohibition of sexual harassment and radical feminist literature, this note argues that sexual harassment law is not, and was never intended to operate as, a remedy for every conduct of a sexual nature in the workplace. There may be conduct of a sexual nature which is deemed inappropriate in the workplace, but such conduct does not become sexual harassment for that reason. The objective behind the prohibition of workplace sexual harassment is the elimination of sexism which is the real barrier to gender equality in the workplace.

Note: Is Retirement Age a Moving Target? A Review of Recent Jurisprudence

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: Is Retirement Age a Moving Target? A Review of Recent Jurisprudence

Authors Marius van Staden & Michele van Eck

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Public Law, University of Johannesburg; Senior Lecturer, Department of Private Law, University of Johannesburg
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2099 – 2115

Abstract

A practice that is becoming commonplace is for employers to reserve the right to change the date of retirement. The note examines contractual and legislative mechanisms for changing an employee’s retirement age and three recent LAC cases in which the employer has done so. Individual contracts may include a reference to a staff handbook and may allow the employer to change employees’ retirement age contained in the handbook. This amendment may be made without obtaining the employee’s consent because the common law recognises that an employer has the right to make changes in these contexts as long as this discretion is exercised reasonably.

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

by | May 24, 2023 | ILJ, ILJ V42 I2

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

Authors Shane Godfrey, Mario Jacobs & Emma Fergus

ISSN: 2413-9874
Affiliations: Director, Labour, Development and Governance Research Unit, University of Cape Town; Researcher, Labour, Development and Governance Research Unit, University of Cape Town; Senior Lecturer, Commercial Law Department; Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

The article explores how the changing organisation of work combined with a long-standing legal principle of demarcation disputes and the organisational rights scheme of the Labour Relations Act underlie a significant shift in trade union organisation. The externalisation of work is leading to multi-sectoral workplaces which (among other factors) is motivating trade unions to organise outside their traditional sectors. A legal principle established in demarcation disputes (ie it is the nature of the business of the employer that determines the sector in which the employer is located) has been adopted by commissioners when determining organisational rights disputes to the detriment of trade unions. Unions are responding in part by expanding their organisational scope, in effect becoming multi-sectoral unions. One is therefore seeing a fundamental shift away from industrial unionism to multi-sectoral or even general unionism. This shift, we argue, will lead to a rise in trade union rivalry and will have serious consequences for collective bargaining.