Note: The Employment Equity Amendment Bill 2018: Grappling with an Evaluation of ‘Equity’ 20 Years Later

by | Apr 23, 2023 | ILJ, ILJ V41 I1

Note: The Employment Equity Amendment Bill 2018: Grappling with an Evaluation of ‘Equity’ 20 Years Later

Authors Shamima Gabie & Prinoleen Naidoo

ISSN: 2413-9874
Affiliations: Director, Cheadle Thompson and Haysom Inc.; Senior Associate, Cheadle Thompson and Haysom Inc.
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 88 – 103

Abstract

This note focuses on the Employment Equity Amendment Bill 2018 (EEAB) which contains significant proposed amendments to the Employment Equity Act (EEA). These proposed amendments are considered with reference to the report of the South African Human Rights Commission (SAHRC) entitled ‘Achieving Substantive Economic Equality through Rights-based Radical Socio-economic Transformation in South Africa’ 2017-2018 (equality report), which contends that the definition of designated groups is not in compliance with constitutional or international law obligations and recommends that the EEA be amended to target more nuanced groups determined on the basis of need and taking into account social and economic indicators. The approach of some countries that have adopted similar proposals to those made in the equality report are also considered. The status of the equality report is also examined with reference to the recent Labour Court judgment in Solidarity v Minister of Labour and Others in which Solidarity attacked the constitutionality of s 42 of the EEA and sought an order confirming the findings and recommendations made in the report, in so far as they relate to the EEA.

Case Note: The Right to Union Representation in Individual Workplace Disputes: Whose Right Is It Anyway? Thoughts on Solidarity v SA Police Service & others

by | Apr 23, 2023 | ILJ, ILJ V41 I1

Case Note: The Right to Union Representation in Individual Workplace Disputes: Whose Right Is It Anyway? Thoughts on Solidarity v SA Police Service & others

Author Emma Fergus

ISSN: 2413-9874
Affiliations: Senior Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 1, 2020, p. 104 – 115

Abstract

Solidarity v SA Police Service & others dealt with an application by an unrepresentative trade union seeking permission from the employer of one of its members to have a Solidarity official represent her during an individual grievance hearing. The Labour Court referred inter alia to the limited provisions of the Labour Relations Act (LRA) governing organisational rights in finding that there was no statutorily enforceable right available to unrepresentative trade unions to enter the employer’s premises for the purposes of representing their members in individual grievance hearings. In doing so, however, the court suggested that the LRA may be unconstitutional in failing to provide such a right — an issue which was not before the court in the case. This case note considers the merits of the Labour Court’s suggestion, proposing an alternative interpretation of the LRA, premised on the right to freedom of association, which avoids a finding that the Act is unconstitutional. In acknowledging differences of opinion on the matter, factors for consideration if a full limitations clause analysis was to be undertaken are also briefly examined.

Independent Contractors Have Rights Too

by | May 21, 2020 | ILJ, ILJ V40 I4

Independent Contractors Have Rights Too

Author Darcy du Toit

ISSN: 2413-9874
Affiliations:
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2165 – 2188

Abstract

The distinction between employees and independent contractors remains essential in distinguishing subordinate workers from the selfemployed. But, in practice, the proliferation of non-standard work has included a growing reliance by employers on ‘disguised employment’ that has reached new heights in the platform economy. The article considers how far employment protection can be extended into the realm of notional independent contracting. In this context it looks at litigation in different jurisdictions by independent contractors claiming misclassification. But the main issue is the position of workers who are thus excluded from labour law protection, even though they may remain under the de facto control of quasi-employers. The article argues that the basic rights of workers necessarily apply to all workers, including vulnerable independent contractors. Mechanisms for achieving this include: (a) the purposive interpretation of independent services contracts; (b) the applicable provisions of existing legislation; and (c) legislation applicable to all workers in specific categories without distinction based on contractual status. A key question is that of identifying the content of rights which could provide precarious independent contractors with protection. This implies forms of responsive and decentralised regulation capable of addressing conditions in diverse sectors with the necessary specificity.

South African Labour Law Mapping the Changes — Part 1: The History of Labour Law and its Institutions

by | May 21, 2020 | ILJ, ILJ V40 I4

South African Labour Law Mapping the Changes — Part 1: The History of Labour Law and its Institutions

Authors Paul Benjamin & Halton Cheadle

ISSN: 2413-9874
Affiliations:
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2189 – 2218

Abstract

The article gives an overview of the development of South African labour law in the period since 1994. While the basic model of modern South African labour law was established by 1999, the following two decades have seen an ongoing process of reform, contestation and adaptation. Post-apartheid legislation saw the establishment of new institutions including the Commission for Conciliation, Mediation and Arbitration, the Labour Court and the Labour Appeal Court. On the other hand, existing institutions such as the industrial councils were reformulated as bargaining councils with enhanced functions. The Labour Relations Act 66 of 1995 established a right to strike while simultaneously removing the duty to bargain that had emerged under the industrial court’s post-1980 unfair labour practice jurisdiction. While the period until 2006 saw a significant decline in strike activity, there has subsequently been an increase in the intensity and duration of strikes. Among the factors contributing to this are enhanced inequality, labour market casualisation and declining negotiating capacity. Legislation that came into effect on 1 January 2019 represented a response to this issue with the enactment of a national minimum wage as well as provisions dealing with picketing, strike ballots and prolonged strikes.

Opportunities Presented by the Fourth Industrial Revolution for Persons with Disabilities in the Public Sector

by | May 21, 2020 | ILJ, ILJ V40 I4

Opportunities Presented by the Fourth Industrial Revolution for Persons with Disabilities in the Public Sector

Authors Lindani Nxumalo & Carol Nxumalo

ISSN: 2413-9874
Affiliations:
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2219 – 2236

Abstract

Securing employment and advancing in the labour market are among the challenges experienced by persons with disabilities. Bodily disablement often necessitates the need for artificial support to enable the person concerned to secure employment and to contribute effectively in the workplace. The Constitution of the Republic of South Africa 1996 provides for equality and the need to create a barrier-free society. Furthermore, it obligates the public sector to ensure equality by developing measures that will create equal access for all in the workplace. The fourth industrial revolution has introduced an advanced technology that includes, among other things, artificial intelligence. Technological advancement and artificial intelligence could assist in addressing the challenges faced by persons with disabilities. This article contends that the public sector must utilise opportunities presented by the fourth industrial revolution to guarantee the inclusion of persons with disabilities in the workplace. It encourages the public sector to invest in technology and provide assistive devices for persons with disabilities in order to guarantee their entry into and advancement in employment.

NOTE: The Furnishing of Security in terms of Section 145(7) and (8) of the Labour Relations Act: A Slow Start towards a Better End?

by | May 21, 2020 | ILJ, ILJ V40 I4

NOTE: The Furnishing of Security in terms of Section 145(7) and (8) of the Labour Relations Act: A Slow Start towards a Better End?

Authors Carlos J Tchawouo Mbiada

ISSN: 2413-9874
Affiliations: Director, Futcher & Poppesqou Attorneys
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2237 – 2250

Abstract

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