The road to double regulation paved with good intentions: An analysis of the interplay between the Labour Relations Act and the Competition Act Regulation of retrenchments

by | Oct 6, 2019 | ILJ, ILJ V36 I3

The road to double regulation paved with good intentions: An analysis of the interplay between the Labour Relations Act and the Competition Act Regulation of retrenchments

Authors Retha Beerman

ISSN: 2413-9874
Affiliations: Director, Knowledge Management, Cliffe Dekker Hofmeyr Inc
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1693 – 1718

Abstract

It is well established that employers may use workforce reductions for operational reasons as a business tool, provided that they meet the statutory requirements imposed on such terminations of employment. It is also well known that the Labour Relations Act is the primary piece of legislation dealing with the obligations resting on employers in such circumstances. Other legislation may, however, impact on the extent to which retrenchments may serve as a legitimate option or tool for employers. One such piece of legislation is the Competition Act. The competition authorities have gradually developed a body of law that interprets their statutory authority to question the justifiability of retrenchments that occur within entities that find themselves within the area of influence of these authorities — most clearly in the merger context. This has culminated in the publication of draft guidelines for the assessment of public interest provisions in mergers by the Competition Commission. This article summarises and clarifies the respective approaches of each of the labour and competition courts and tribunals to employer decision making in retrenchment situations and highlights the risks associated with developing potentially contradictory legal obligations, both applicable to the same set of facts, in isolation.

Do cooperatives offer a basis for worker organisation in the domestic sector? An exploratory study

by | Oct 6, 2019 | ILJ, ILJ V36 I3

Do cooperatives offer a basis for worker organisation in the domestic sector? An exploratory study

Authors Darcy du Toit, Thierry Galani Tiemeni

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape; Research Assistant, Social Law Project, University of the Western Cape
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1677 – 1692

Abstract

The difficulty of trade union (or other) organisation in a sector such as the domestic work sector is well known. As a consequence collective bargaining is unknown and enforcement of workers’ rights is extremely limited. The article considers the potential of cooperatives as a possible model of organisation with a view to establishing whether it could be capable of overcoming the barriers encountered by traditional trade unionism. The purpose is to consider the role that cooperatives could play in empowering domestic workers, not only by creating a basis for socio-economic improvement by providing services for members as contemplated by the Co-operatives Act but also by enabling workers to act collectively in the promotion of their rights. It also considers the scope for domestic workers’ cooperatives to achieve financial viability by providing the same services which domestic worker agencies are successfully providing on a commercial basis.

Case Note: Some thoughts on claims for compensation and damages for automatically unfair dismissals and discrimination: A discussion of Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC)

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Case Note: Some thoughts on claims for compensation and damages for automatically unfair dismissals and discrimination: A discussion of Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC)

Authors Dhashina Moodley, Nicola Whitear-Nel

ISSN: 2413-9874
Affiliations: LLM candidate, University of KwaZulu-Natal; Senior Lecturer, University of KwaZulu-Natal
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 907 – 914

Abstract

None

Benefits: Have we found the way out of the labyrinth?

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Benefits: Have we found the way out of the labyrinth?

Authors Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; Director, Institute of Development and Labour Law
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 888 – 899

Abstract

Ever since the enactment of the Labour Relations Act 66 of 1995, the meaning of the benefits-related unfair labour practice presented difficulties to both judges and arbitrators. These difficulties were mainly caused by the desire to maintain a firm distinction between rights and interest disputes and, flowing from this, the insistence that benefits and remuneration were two different things. The interpretation of this unfair labour practice was further complicated by a judgment of the Labour Appeal Court in 2000, suggesting that only benefits originating from contract or legislation are subject to the unfair labour practice jurisdiction. The article argues that the recent judgment of the Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others\xc2\xa0(2013) 34 ILJ 1120 (LAC), while diluting the importance of the distinction between rights and interest disputes and that between benefits and remuneration, fails explicitly to dispel the relevance of contract in the context of this unfair labour practice. The article further argues that, contrary to earlier wisdom, this unfair labour practice can be used to assert currently enforceable entitlements.

Employee-made intellectual property: Statutory considerations for the contractual regulation of ownership

by | Oct 6, 2019 | ILJ, ILJ V36 I2

Employee-made intellectual property: Statutory considerations for the contractual regulation of ownership

Authors Lee-Ann Tong

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 870 – 887

Abstract

Intellectual property rights are valuable for the competitive advantage they secure for intellectual property owners. The intellectual property system generally recognises authors and inventors as the first owners of copyright, designs, and patents. The bulk of valuable intellectual property is made by employee-authors and inventors who are employed for the purpose of creating the intellectual property or who do so using their employers’ resources. Employers therefore have an interest in owning employee-made intellectual property. Although copyright, patents and registered designs are all intellectual property rights, they are regulated by separate statutes and the approach to the allocation of first ownership of employee-made intellectual property differs accordingly. The result is that there is no consistency in the first ownership of copyright works, patented inventions and registered designs made by employees. Because copyright, patents and registered designs may be transferred, employers could consider using the contact of employment to regulate ownership for employee-made intellectual property where they prefer to deviate from the statutory first ownership rule. However, the usefulness of contract in this situation is limited by statutory restrictions in the intellectual property legislation on the freedom to contract.