Restructuring triangular employment: The interpretation of section 198A of the Labour Relations Act

by | Oct 6, 2019 | ILJ, ILJ V37 I1

Restructuring triangular employment: The interpretation of section 198A of the Labour Relations Act

Authors Paul Benjamin

ISSN: 2413-9874
Affiliations: Director, Cheadle Thompson & Haysom Attorneys, Johannesburg; visiting Associate Professor, School of Governance, University of Witwatersrand
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 28 – 44

Abstract

The Labour Relations Amendment Act of 2014, which came into effect on 1 January 2015, amended s 198 and introduced a new s 198A to prevent abusive practices associated with the placement of workers by temporary employment services (labour brokers). Employees earning below the earnings threshold set by s 6(3) of the Basic Conditions of Employment Act who are placed with clients for more than three months, other than as substitutes, are deemed by s 198A(3)(b) to be employees of the clients for the purposes of the LRA. This article examines the judgment in Assign Services (Pty) Ltd v CCMA & others in which the Labour Court set aside a ruling by a CCMA arbitrator that the effect of s 198A(3)(b) was to make the client the ‘sole’ employer for the purposes of the LRA. It argues that the comments by the court on the nature of the contractual relationship between TESs and the workers they place are inconsistent with the jurisprudence of the Labour Appeal Court and were, in any event, not necessary for the court’s decision.

The right to equality versus employer ‘control’ and employee ‘subordination’: Are some more equal than others?

by | Oct 6, 2019 | ILJ, ILJ V37 I1

The right to equality versus employer ‘control’ and employee ‘subordination’: Are some more equal than others?

Authors Darcy du Toit

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 1 – 27

Abstract

The growing discourse on ‘labour rights as human rights’ has clarified important areas of convergence as well as tension between these two emancipatory disciplines. The most basic of all human rights is the right to equality, whereas the starting point of labour law is the inequality between worker and employer, not only in terms of bargaining power but also in terms of the worker’s legal subordination within the employment relationship. Though rooted in the law of property, this inequality is implicit in all labour legislation and is also expressed in the entrepreneurial rights of the employer to which the worker’s job security (or very existence as a worker) is subject. The article considers some implications of this contradiction. It notes that the classic labour law response to the power imbalance in the workplace, the promotion of collective bargaining, does not challenge the legal hierarchy. ‘Equality in the workplace’ translates, essentially, into equal treatment of workers by employers but not of worker and employer. All human rights vested in citizens or denizens (for example, the right to information or freedom of assembly) are refined, adjusted or limited through the filter of labour law to leave the inequality of the worker undisturbed. This raises questions about the boundaries of labour law as an emancipatory discipline. While hierarchy is an intrinsic feature of employment in a market-based economy, the same does not follow in respect of ‘work’. Economic and legal arguments in support of the employer’s power of command only explain or justify it to a limited extent. The article suggests an understanding of employees’ right to equality in the workplace indivisibly integrated with their fundamental rights beyond the workplace, limited not by the pre-emptive rights of the employer but, in essence, only by the inherent requirements of the productive process itself.

Obligations of an employer to a transgender employee

by | Oct 5, 2019 | ILJ, ILJ V38 I4

Obligations of an employer to a transgender employee

Authors Lindani Mkhwanazi, Alan Rycroft

ISSN: 2413-9874
Affiliations: Research Officer, Institute of Development and Labour Law, University of Cape Town; Professor of Commercial Law, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 38 Issue 4, 2017, p. 2201 – 2216

Abstract

This article considers workplace discrimination against a minority group — transgender employees — and explores fair employer responses in a range of situations: in the recruitment process, in harassment, in disability claims, and the more specific issue of whether an employer’s failure to provide separate toilet facilities for transgender employees amounts to unfair discrimination. The article details the legal history that led to the current developments and how the courts have dealt with transgender and transsexual discrimination in the workplace.

Reflections on transformative pension adjudication

by | Oct 5, 2019 | ILJ, ILJ V38 I4

Reflections on transformative pension adjudication

Authors Mtendeweka Mhango, Ntombizozuko Dyani-Mhango

ISSN: 2413-9874
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare; Associate Professor, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 38 Issue 4, 2017, p. 2173 – 2200

Abstract

This article examines the concept of transformative adjudication and whether the judiciary and the pensions fund adjudicator have engaged in such adjudication in relation to the jurisdictional challenges faced by the pension funds adjudicator. Whereas legislative amendment of the Pension Funds Act has been the traditional means used to solve the major jurisdictional problems faced by the adjudicator, we argue that through transformative adjudication South Africa can overcome these jurisdictional difficulties. We highlight a few decisions that are progressive and others that are regressive in advancing transformation. We observe that there is an emerging pension jurisprudence that has had a positive practical effect in broadly constructing the adjudicator’s jurisdiction thereby helping to transform South Africa’s pension funds industry. We argue that the adjudicator has an obligation to expand on this jurisprudential trend.