The Independence of Newspaper Editors as an Enforceable Constitutional Right?

by | Apr 23, 2023 | ILJ, ILJ V41 I4

The Independence of Newspaper Editors as an Enforceable Constitutional Right?

Author Colin Kahanovitz SC

ISSN: 2413-9874
Affiliations: Advocate of the High Court of South Africa, Member of the Cape Bar, BCom LLB (UCT)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2294 – 2310

Abstract

The author seeks to examine the extent to which, in the case of a newspaper editor, the common law duty of an employee to obey instructions is impacted on by the constitutional rights of freedom of expression and the right to information. The author asks whether an editor whose editorial independence is unjustifiably limited or denied by her employer can lawfully disobey an instruction from the owner to refrain from publication on the grounds that the Constitution permits her disobedience because it protects a free press? The author argues that being an employee, the editor is still subject to the policies and instructions of the employer but because she is an editor of a newspaper she is a different kind of employee protected in appropriate limited circumstances from suffering occupational detriment for publication in defiance of an owners instruction, namely where her disobedience was publishing content consistent with journalistic ethics and reasonably required to promote freedom of expression and the public’s right to know. The author argues that press freedom requires protection for news-producing employees not only from state power but also from media owning private interests.

The Role of Trade Unions in South Africa: Towards the Inclusion of Persons with Disabilities in the Workplace

by | Apr 23, 2023 | ILJ, ILJ V41 I4

The Role of Trade Unions in South Africa: Towards the Inclusion of Persons with Disabilities in the Workplace

Author Lindani Nxumalo

ISSN: 2413-9874
Affiliations: Attorney, PhD (UKZN)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2311 – 2327

Abstract

Trade unions can play a vital role in the workplace. They are constitutionally recognised as one of the pertinent stakeholders in strengthening democracy and promoting sound labour relations. Additionally, various employment laws and disability policies recognise them as key role players in the inclusion of persons with disabilities in the workplace. Despite such provisions, persons with disabilities continue to suffer inequalities in the working environment. Their prospects of employment are rare, they struggle to retain employment where employed and are stigmatised by both employers and society more broadly. Even when employed, they are often not reasonably accommodated. This article argues that while trade unions are at the forefront of fighting for workers’ rights, they have been less successful in creating an awareness of disability matters and engaging employers effectively on non-compliance with disability related provisions. It contends that through strategic litigation, a robust approach and collective bargaining, they can significantly improve the achievement of substantive equality for disabled persons in the world of work.

Case Note: Association of Mineworkers & Construction Union & others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) & others (2020) 41 ILJ 1837 (CC)

by | Apr 23, 2023 | ILJ, ILJ V41 I4

Case Note: Association of Mineworkers & Construction Union & others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) & others (2020) 41 ILJ 1837 (CC)

Author Richard Haslop

ISSN: 2413-9874
Affiliations: Executive Consultant, Woodhead Bigby Inc, BA, BJuris, LLB, PG Dip IR
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2328 – 2334

Abstract

In AMCU & others v Ngululu Bulk Carriers & others the Constitutional Court explained that, where the reason for a dismissal fell within the parameters defined in s 191(5)(b) of the Labour Relations Act, the dismissed employee could choose, post-conciliation, whether to refer the dispute to the Labour Court for adjudication or to the CCMA or bargaining council for arbitration. This note examines the extent to which this explanation differs from previous jurisprudence and the current practice, whether the explanation consisted of obiter remarks, and whether this interpretation is likely to be followed in the future.

Towards Legal Regulation of Platform Work: Theory and Practice

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Towards Legal Regulation of Platform Work: Theory and Practice

Authors Darcy du Toit, Sandra Fredman & Mark Graham

ISSN: 2413-9874
Affiliations: Emeritus Professor and Coordinator, Labour Law 4.0 niche area, University of the Western Cape; Rhodes Professor of the Laws of the British Commonwealth and the USA, University of Oxford; Professor of Internet Geography, Oxford Internet Institute, University of Oxford
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1493 – 1523

Abstract

Digital platform work, while playing an increasingly important part in low- as well as high-income countries, is characterised by an absence of effective labour regulation. In particular, the norm is for workers to be classified as ‘independent contractors’, thus placing them beyond the ambit of labour legislation. The article, based on interactive research by the Fairwork project,2 examines ways of protecting workers’ basic rights in this environment. This is seen as part of the long-standing effort to include non-standard workers within the framework of labour legislation. However, the premise is that dedicated regulation rather than a simple extension of existing labour rights is required. The article starts by considering the category of dependent ‘workers’ who are deserving of such protection over and above ‘employees’, while excluding genuinely independent entrepreneurs. It then uses five standards of decent work developed by the Fairwork project (fair earnings, fair conditions, fair contracts, fair management and fair representation) as a basis for working out forms of regulation that would bring about the effective protection of workers’ rights. While reputational pressure exerted by Fairwork’s rating system provides a critical impetus for improvement, it is argued that binding legal rules are needed to prevent exploitation by platforms that reject voluntary compliance. It concludes by considering the practical prospects of implementing legislative reform, and the importance of generating the political will to do so on the part of policy-makers, with reference to the precedent of the enactment of labour legislation during the first and second industrial revolutions.

Albinism in the South African Workplace: A Labour Law Perspective

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Albinism in the South African Workplace: A Labour Law Perspective

Author L Fourie

ISSN: 2413-9874
Affiliations: Lecturer in the Department of Mercantile Law, University of the Free State, LLB LLM PDFP (UFS) PhD Candidate (Leiden University)
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1524 – 1546

Abstract

Persons living with albinism represent one of society’s most defenceless groups. An estimated one in 5 000 Africans living south of the Sahara are affected by albinism. Persons with albinism experience a lack of melanin, resulting in physical impairments, including poor vision and skin cancers. These disorders set the scene for such people to be subjected to different treatment on the basis of their racial affiliation, colour, and disability — thus requiring that they receive special protection against unfair discrimination. The South African Constitution provides for a right to equality and prohibits the unequal treatment of persons on the basis of their race, colour and disability. This constitutional right is promoted within the labour market by way of the Employment Equity Act, which aims to achieve fair treatment by eliminating unfair discrimination in employment. A vital measure against discrimination that can be executed to achieve equality in the workplace is the reasonable accommodation duty of employers. This duty constitutes one of the affirmative action measures designed to redress disadvantages in employment experienced by designated groups (identified as black people, women and people with disabilities). While the duty to reasonably accommodate is thus legally recognised, no enforceable legal instrument elaborates on the meaning and scope thereof. Furthermore, the law in respect of applying affirmative action measures is silent on how colour and disability should be understood. Bearing in mind that persons affected by albinism will experience difficulties in demonstrating that they fall within the black or disabled category in order to share the benefits of the designated groups, their entitlement to reasonable accommodation will also be restricted. This article aims to illustrate to what degree South African law currently fails to protect persons with albinism in the workplace and in what way it should be amended in order to serve their needs.

The Right Not To Be Discriminated Against in Employment in Kenya

by | Apr 23, 2023 | ILJ, ILJ V41 I3

The Right Not To Be Discriminated Against in Employment in Kenya

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1547 – 1567

Abstract

Section 5(3)(a) of the 2007 Kenyan Employment Act prohibits employers from discriminating against employees on specified grounds. Likewise, article 27(4) of the 2010 Constitution also prohibits discrimination on certain grounds some of which are not included in the Employment Act. Jurisprudence dealing with discrimination matters from the Employment and Labour Relations Court (ELRC) (formerly known as the Industrial Court) indicates the extent to which the court has protected employees’ right to freedom from discrimination. There are cases, however, in which the ELRC has reached debatable conclusions, for example, by holding that the list of grounds under s 5 of the Act is exhaustive. There are also cases in which employees have alleged discrimination by employers where the court has placed more emphasis on the Constitution as opposed to the Employment Act. The author analyses these cases by focusing on the following issues: the definition of discrimination; prohibited grounds of discrimination; permissible discrimination; burden of proof and standard of proof when an employee alleges discrimination; and employers’ accountability for discrimination. Where necessary, the author suggests ways in which the ELRC can better approach the issue of discrimination.