The role of trade unions and employees in South Africa’s business rescue proceedings

by | Oct 6, 2019 | ILJ, ILJ V36 I1

The role of trade unions and employees in South Africa’s business rescue proceedings

Authors Anneli Loubser, Tronel Joubert

ISSN: 2413-9874
Affiliations: Professor, Department of Mercantile Law, University of South Africa; Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 21 – 39

Abstract

Employees and the registered trade unions representing them have been given a prominent role in the new business rescue proceedings introduced by the Companies Act of 2008. The inclusion of registered trade unions and non-unionised individual employees in the definition of ‘affected persons’ recognises the fact that employees are directly affected by the failure and subsequent liquidation of a company or close corporation, and grants them the same rights as creditors and shareholders to be notified of all developments and to participate in the business rescue proceedings in various ways. These rights are in addition to the special and extensive rights given to them in their capacity as employees, and the rights they may have as creditors of the company for remuneration and other amounts relating to their employment. It remains to be seen to what extent the trade unions in particular will use these rights to the advantage of their members.

Strikes and the amendments to the LRA

by | Oct 6, 2019 | ILJ, ILJ V36 I1

Strikes and the amendments to the LRA

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 1 – 20

Abstract

This article considers the extent to which the 2014 amendments to the LRA impact on the present law of strikes. Tracing the evolution of the Bill and final Act, the article considers key sections deleted in the process, and comments on the declining role of NEDLAC as a pivotal agency for finalising labour legislation in a consensual manner. Various versions of the Bill empowered the CCMA and Labour Court to suspend a strike in certain circumstances; this third-party intervention has been removed. The benign provision requiring a pre-strike ballot was likewise removed and the article comments on the historical reasons for the aversion of COSATU to strike ballots. Changes to sections on picketing are described. The article, after commenting on the potential for compulsory arbitration, looks at the missed opportunities for meaningful changes but recognises, in Von Holdt’s words, ‘where the underlying social order is unsettled or contested, institutionalisation [of strike law] is likely to remain partial and precarious’.

Note: Is evidence of the breakdown in the trust relationship always necessary? Woolworths (Pty) Ltd v Mabija & others (2016) 37 ILJ 1380 (LAC)

by | Oct 6, 2019 | ILJ, ILJ V37 I4

Note: Is evidence of the breakdown in the trust relationship always necessary? Woolworths (Pty) Ltd v Mabija & others (2016) 37 ILJ 1380 (LAC)

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2260 – 2266

Abstract

None

Disciplinary sanctions in the alternative

by | Oct 6, 2019 | ILJ, ILJ V37 I4

Disciplinary sanctions in the alternative

Authors Kershwyn Bassuday

ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2251 – 2259

Abstract

There are various ways in which an employer may discipline an employee for his or her misconduct. Labour law jurisprudence and the general boni mores of society would hold that it is important to ensure that employers choose the best, most fair and least traumatic method of disciplining their employees. Heed in this connection should be taken of the effect of the discipline on both the employee and employer, and the workplace dynamics between them. Consideration should also be given to whether the employment relationship can be salvaged. A critical question in this respect is whether the imposition of an alternative sanction to dismissal necessarily implies that the relationship may be repaired as this could have ramifications in circumstances where an employer grants an employee a choice of sanction. For instance, if the employer offers an employee the option of either an unpaid suspension or a dismissal for the same misconduct and the employee chooses dismissal but later submits to a tribunal that the dismissal was unfair, can the employer rely on the argument that the employment relationship was intolerable despite having offered the employee the lesser alternative sanction? Apart from exploring this situation, the article further proposes different theories as a basis for examining the diverse approaches which have been adopted in the imposition of alternative sanctions. Finally, it explores the parameters of the different types of alternative sanctions and their efficacy.

Making a case for work-life balance for the South African employee

by | Oct 6, 2019 | ILJ, ILJ V37 I4

Making a case for work-life balance for the South African employee

Authors Tamara Cohen, Neermala Gosai

ISSN: 2413-9874
Affiliations: Associate Professor, School of Law, UKZN; Attorney of the High Court
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2237 – 2250

Abstract

Work-life balance is premised upon the availability of time for paid and unpaid pursuits, the ability to cope with the mental and physical strain of the job, the availability and use of flexible working arrangements, autonomy in relation to where and when the employee works, and the availability and degree of support for work-life balance in the workplace and social/family unit. This article argues that the attainment of work-life balance is integral to a sustainable workplace and is necessary to meet the demands faced by employees in the 21st century. In support of this argument it considers the drivers for work-life balance policies and practices, including the evolving workforce, the impact of globalisation on business practices and the business case for work-life balance policies and practices. It further considers the obstacles posed by employee perception of the take-up and use of work-life balance practices. The article concludes that work-life balance can be attained by providing organisational support and accommodation for such policies and practices and by changing cultural, societal and gendered perceptions in this regard.

Organising and bargaining across sectors in South Africa: Recent developments and potential problems

by | Oct 6, 2019 | ILJ, ILJ V37 I4

Organising and bargaining across sectors in South Africa: Recent developments and potential problems

Authors Emma Fergus, Shane Godfrey

ISSN: 2413-9874
Affiliations: Senior Lecturer, Commercial Law Department, University of Cape Town; Institute of Development and Labour Law, University of Cape Town; Co-ordinator: Labour and Enterprise Policy Research Group, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2211 – 2236

Abstract

The restructuring of production and rise of services pose significant challenges to trade unions with regard to organisation and collective bargaining in South Africa and globally. In response, NUMSA has resolved to organise all workers at firms, including core and non-core, and all workers along value chains. In effect this means organising and bargaining across sectors, which is contrary to the sectoral orientation embedded in the country’s labour legislation and the strategies of most trade unions. This article examines the legal and practical obstacles at sector and enterprise level that face NUMSA and any unions that might follow its lead. It concludes that while NUMSA’s strategy might be an appropriate response to the changes in the world of work, the statutory framework for organising and bargaining and the existing structures and practices that regulate organising and bargaining on the ground create a number of hurdles for the union and could cause tensions in the existing collective bargaining system.