OpenUCT :: Browsing by Author "Fergus, Emma"

Browsing by Author "Fergus, Emma"

Now showing 1 - 10 of 10

Open Access
Corporate governance and labour relations: a sustainable partnership
(2014) Chennels, Jack Francis Erskine; Fergus, Emma
Open Access
Does the labour relations act unjustifiably limit the constitutional right of employees to freedom of assembly? Examining the constitutionality of the prohibition on purely political protest action and gatherings by off-duty employees over disputes of mutual interest
(2019) Allsop, Geoffrey Charles; Fergus, Emma; Collier, Debbie
This thesis examines whether the Labour Relations Act 66 of 1995 (‘LRA’) justifiably limits the constitutional right to employees to freedom of assembly in accordance with s36(1) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’). This question is considered in two broad parts. The first part demonstrates two limitations. First, the inability of s77 of the LRA to provide legislative protection to employees who wish to embark on socioeconomic protest action over a purely political issue. Second, the LRA’s prohibition on off-duty employees utilising the Regulation of Gatherings Act 205 of 1993 (‘RGA’) to demonstrate against their employer over a dispute of mutual interest. While no court has yet considered if the LRA prohibits purely political protest action, the Labour Appeal Court in ADT Security v NASUWU 2015 (36) ILJ 152 (LAC) (‘ADT Security’) held that is unlawful for off-duty employees to demonstrate over a dispute of mutual interest under the RGA. The first part begins by establishing how the LRA’s statutory definition of protest action cannot, in its current form, protect purely political protest and how this limits the constitutional right of employees to free assembly. Similarly, it explains how ADT Security clearly establishes that the LRA limits the constitutional right of employees to freedom of assembly by infringing their constitutional right to assemble and demonstrate in compliance with the RGA. The second part tests both limitations against s36(1) of the Constitution, the limitation clause, to assess if either infringement justifiably limits the constitutional right of employees to freedom of assembly, enshrined in s17 of the Bill of Rights. Considering the factors in s36(1)(a)-(e) of the Constitution, and other relevant factors, it examines if the purpose and reasons for either limitation are sufficiently compelling so as to be reasonable and justifiable. It concludes by arguing both limitations unjustifiably limit the constitutional right of employees to free assembly. Two recommendations are made. First, that the LRA be amended to expressly permit employees to demonstrate over disputes of mutual interest, in compliance with the RGA, in certain circumstances. Second, that the LRA be amended to expressly permit purely political protest action, provided the protest action is limited in scope and duration and subject to oversight by the Labour Court.
Open Access
From Sidumo to Dunsmuir the test for review of CCMA arbitration awards
(2013) Fergus, Emma; Rycroft, Alan
This thesis seeks to identify the test for judicial review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration ('CCMA'). Currently, that test is set out in section 145 of the Labour Relations Act 66 of 1995 ('LRA'), read with the Constitutional Court's decision in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). In terms of Sidumo, section 145 of the LRA has been suffused by the standard of reasonableness, consistently with the right to just administrative action found in section 33 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'). In search of a clear formulation of the test, an extensive examination of South African case law on the subject is undertaken. Thereafter, relevant principles of judicial review in South Africa in the administrative sphere generally are considered. Finally, an assessment of Canadian case law and commentary in this field is conducted. The conclusion to this thesis proposes a revised test for review of CCMA awards. The principal research findings begin by recognising the significance of efficiency, accessibility, flexibility and informality to ensuring fair and efficacious labour dispute resolution. The implication of this is that the test for review of CCMA awards should not be too exacting. Still, section 33 of the Constitution cannot be ignored and a broader ambit of review may therefore be necessary in certain instances. In fact, to maintain legal certainty, intrusive review may sometimes be crucial. These factors must be balanced when formulating a reliable and practical approach to review of CCMA awards. A key finding of this thesis is that – ostensibly due to the complexity of doing so – the Labour Courts have struggled to apply the current test for review consistently, fairly or predictably.
Open Access
Reforming the Approach to Alternative Dispute Resolution in Kenyan Industrial Disputes: A Comparative Analysis
(2015) Abenga, Elvis Begi Nyachieo; Fergus, Emma
Dispute resolution plays an important role in industrial relations. This is because conflicts are an inherent part in any relationship and industrial relationships are not exempt from this. To this end it is important to have a dispute resolution system that ensures efficient and effective resolution of disputes that arise in the course of industrial relationships. Efficient and effective dispute resolution is particularly important in the industrial relations arena as industrial relations attract various stakeholders, some who may not necessarily be a part of the dispute that arises, but who might inadvertently be affected in the situation of an unresolved dispute. Traditionally litigation has been the most commonly utilized medium of resolution of industrial disputes, with disputants rather choosing to take the dispute to the courts of law for adjudication and determination. However with the advent of alternative means of dispute resolution such as negotiation, mediation and arbitration, it has become paramount that these alternative dispute resolution methods be promoted for the reasons of expediency and efficiency. Regardless of the advent of such methods of dispute resolution, courts have still exercised some form of control and oversight of the dispute processes, and such oversight can be easily misused to defeat the main intention of having the alternative dispute resolution processes in the first place. This thesis discusses reforming the approach to alternative dispute resolution in Kenyan industrial disputes, so as to achieve maximum efficiency of the system. In doing this, the thesis does a comparative analysis of the systems of South Africa and Australia respectively.
Open Access
Resolving Dismissal Disputes: A Comparative Analysis of Public Arbitration Bodies in South Africa and England
(2018) Adam, Aisha; Fergus, Emma
Alternative dispute resolution is often proven to be an effective and preferable means of resolving dismissal disputes. A coherent and cooperative working environment is not always possible in the developing workplace today. Thus, it is critical that an employer and employee are able to resort to effective means of dispute resolution when conflicts arise. The adjudicating system of the courts is notorious for being tedious, expensive and often too legalistic for employment disputes; public arbitration aims to curtail these difficulties by providing an efficient, cost-effective and informal dispute resolution service. Public arbitration bodies seek to overcome the challenges posed by court proceedings by resolving disputes within a specific timeframe, providing applicants with a cost-free service and reducing informalities, in part by limiting the need for legal representation during proceedings. As South Africa was once a colony of Britain, South Africa and England have a historical link which makes them appropriate comparators when determining progression. Based on their similar approach to dispute resolution through arbitration, it is possible to consider the extent to which each country’s employment arbitration service, ACAS in England and the CCMA in South Africa, has achieved its objectives. This dissertation evaluates the use of public arbitration in resolving dismissal disputes in England and South Africa. As a comparative study, it concentrates on and compares the efficiency, accessibility and informality of each country’s employment dispute resolution system, with a particular focus on dismissal disputes. The analysis presented in this dissertation was able to determine the need for improvement in both arbitration systems. It is observed that the deficiencies found in the CCMA can be resolved by learning from the strengths of ACAS, and vice versa. Although each arbitration body aims to provide resolution with the least amount of formalities, both systems can improve their operations by using client feedback and implementing rigorous quality control measures. These recommendations aim to set out ways to improve the effectiveness of each system with the intention of conducting dismissal disputes as succinctly as possible.
Open Access
The effectiveness of codes of conduct of selected South African mining companies in regulating labour standards: window dressing or genuine regulatory instruments?
(2021) Mudimu,Godknows; Fergus, Emma; Mostert, Hanri
Inequality and injustice are deeply rooted within the South African mining industry, and have been since at least the discovery of commercially viable diamonds in 1868, followed by gold in 1886. From the labour policies of the past, the effects of globalisation, and the dysfunctional labour relationships on many mines (as depicted by the Marikana tragedy of 2012) arise mismatched regulatory patterns on labour relations. Labour patterns in the mining sector are continuously shifting, yet the foundations of labour regulation have remained largely the same, focusing primarily on protecting employees who are in a standard employment relationship at the expense of non-standard workers. This has left many workers in non-standard employment relationships inadequately protected by the labour framework. Nonstandard mineworkers generally lack full-enabling rights, including the ability to exercise their rights to freedom of association and collective bargaining effectively. In addition, they face challenges when exercising their right to a working environment that is not harmful to their health and safety, leading to the worsening of their already dire socio-economic conditions. The state is battling to protect these workers from exploitation, but continues to legislate, primarily attempting to widen the definition of those who qualify to access rights under the legal framework. Notwithstanding these attempts, numerous workers at mines remain inadequately protected, thereby stimulating regulatory debates on new ways of organising non-standard workers. One such mechanism, which continues to gather traction in the regulatory debates is the use of codes of conduct to offer protection to workers who, by virtue of the arrangements of their work, cannot organise or access the full rights under the applicable legal framework. Codes of conduct have been popular in many sectors, such as the apparel industry but have not been fully tested in the mining context, leaving many questions around whether they can be labelled genuine regulatory instruments or whether they are mere window dressing tools. Through an assessment of codes of conduct, tracing their development, place in the regulatory spectrum and usage by mining companies in South African mines, this thesis assesses their effectiveness in protecting non-standard workers' rights. Questions on whether such instruments can be viewed as genuine complementary regulatory instruments are raised, focusing on the weaknesses of these instruments. This dissertation offers recommendations for redesigning codes of conduct to make them more legitimate, effective and democratic instruments in the regulation of labour standards at mines.
Open Access
The potential role of Corporate Governance in promoting worker participation in Companies
(2023) Nyathi, Frank; Fergus, Emma
The relationship between the employer and employee in South Africa is inherently adversarial. In addition to the adversarial nature of the relationship, the bargaining power between employer and employee is inherently unequal. An employer wields greater bargaining power over the employee. The adversarial nature of the employeremployee relationship creates a possibility of exploitation of the weaker party, and that is the employee. Various statutory measures have been put in place to improve the plight of the employee who, without such interventions, is left at the employer's mercy. Labour law-related legislation is an intervention meant to level the playing field between employer and employee. This research seeks to establish that even with these largely effective interventions, the employer or worker, in general, remains vulnerable. This research will show that these detrimental outcomes for the employee are present due to a failure in stakeholder relations in the corporate governance of organisations. The purpose of this study is to investigate the extent to which employees may participate meaningfully as internal stakeholders of organisations, particularly in profit companies. The study acknowledges, as aforesaid, that there is extensive protection granted to employees through separate legislation, i.e. labour laws. Moreso, labour laws enable worker participation as well. The research will establish whether employees' protection and worker participation initiatives through labour laws exclusively are not adequate. The study further examines whether corporate governance could (and should) not cover the regulatory gap left by labour laws in advancing workers' welfare. In other words, from a company law or corporate governance vantage point, the question is whether corporate governance takes into account the interests of other stakeholders, particularly the employees and if so, the extent to which it could and should play a broader role in facilitating employee voice and participation in corporate operations.
Open Access
Unprotected strike action in South Africa
(2019) Van Heerden, Andre; Fergus, Emma; Rycroft, Alan
The right to strike is an important element of collective bargaining in South Africa. While protected strike action provides significant protection to employees and employers alike, unprotected strike action does not. Given the potential adverse consequences of engaging in unprotected strike action it is important that the delineation between protected and unprotected strike action be made clear to all parties concerned, including employees, employers and trade unions. This involves a discussion of what conduct amounts to strike action in the first instance as well as a discussion of the procedural and substantive requirements which must be satisfied in order to avoid strike action being rendered unprotected. It is the purpose of this dissertation to provide such clarity. In order to do so recent amendments to labour legislation have been taken into account; The Code of Good Practice: Collective Bargaining, Industrial Action and Picketing will also be considered.
Open Access
Using Corporate Social Responsibility to Improve Employee Participation in a Business
(2019) Nongogo, Anele; Fergus, Emma
Workplace forums are intended to promote employee participation in a business but have not been a success in South Africa for a number of reasons. Certain corporate social responsibility principles, particularly those found in the King IV Code, can help improve employee participation in a business and ultimately lead to an improvement of the relationship that employer have with their employees.
Open Access
What to do about unprotected strikes at Nkomati Mine?
(2020) Phakathi, Nkosana Christian; Fergus, Emma
Background and motivation: Nkomati Joint Venture Mine (Nkomati) is situated in Mpumalanga between the towns of Machadodorp, Barberton and Nelspruit. It is a mining company, mining a variety of minerals, however their primary mineral is Nickel. It employs around 494 employees. The author, continuously observed that employees, often ignore grievance procedures when dissatisfied and embark on unprotected strikes, that is strikes that do not comply with section 64 and 65 of the Labour Relations Act 66 of 1995 (the LRA)1 . This ignorance often result in relationship discomfort, complaints, grievances, disciplinary action and other forms of workplace conflict that have a negative impact on organisational functioning. The author subsequently intends to analyse unprotected strikes at Nkomati in order to identify problem areas and recommendations to eliminate, manage and/or reduce such actions. The author believes that unprotected strikes may be reduced, managed and/or eliminated if parties are aware of the position of labour law on unprotected strikes including violence, damaging of property and intimidation during strikes. These unawareness could be significant contributor to final warnings issued to all employees who participated in the unprotected strike and 11 employees who were dismissed for misconduct during the said unprotected strike on 23 April 2018 at Nkomati. A better understanding on how employees must conduct themselves during strikes may promote the quality of employment relations at Nkomati. Problem statement and purpose The right of employees to strike is entrenched in the Constitution of the Republic of South Africa in terms of section 23(2)(c). It is important to note that the right may nonetheless be limited as encapsulated in section 36 of the constitution.2 The primary objective for employees to embark into to a strike action is to inflict economic harm on their employers so that the employer will accede to their demands.3 The abuse of such power by trade union or employees has become rather a thorny issue for employers.4 The main purpose of this study is to analyze in depth the legal implications of employees' participation in unprotected strikes. The study will cover the following discussions: Chapter 1 gives the introduction and background. Chapter 2 deals with the legal framework. Chapter 3 deals with remedies. Lastly, Chapter 4 draws conclusions and makes recommendations. The study will also determine if Schedule 8 of the Code of Good Practice: Dismissal, according to item 6(2), is effective in deterring unprotected strikes and unlawful conduct during strikes. The study examines the Nkomati disciplinary code and procedure mechanisms to curb unprotected strikes that are marred with unlawful conduct. The amount of unprotected and violent strikes, while the Nkomati events provide an example of one situation. The study will determine if there are any areas of the law or other alternative mechanisms that can be developed to curb the occurrence of unprotected strikes associated with unlawful conduct. Research questions: This research seeks to answer these questions: i. What is an unprotected strike and what are the legal implications of participating in such a strike? ii. What legal mechanisms can be used to deal with unprotected strikes? iii. How should misconduct during strikes be dealt with? iv. Does Schedule 8 to the LRA, the Code of Good Practice: dismissal, offer meaningful ways to curb unprotected strikes and unlawful conduct? Finally, the analysis of the consequences of unprotected strikes assists the study to determine methods through which proactive approaches can be developed in order to minimize or deter unprotected strikes and unlawful conduct during strikes with the objective of improving relations between employees and Nkomati.7 The study recommends pragmatic suggestions to both employees and Nkomati management to harmoniously resolve their disputes and grievances. Research methodology: The dissertation comprises of desktop research. Information will be drawn from documented evidence which is empirical in nature. Furthermore, the dissertation will entail the analysis of legislation, case law, journals and articles. A comparison will be made on the applicable laws in South Africa and what had transpired at Nkomati with the aim to identify any gaps in our labour laws governing unprotected strikes. In order to paint a clear picture of some experiences, the author of the dissertation will discuss relevant Nkomati events pertaining to the strike and will provide an analysis on them. Reference is made to the Constitution, as the primary source of the right to strike. The dissertation refers extensively to the Labour Relations Act (LRA), as the statute which makes provision for the right to strike, and other provisions relating to strikes. Dissertation structure: Chapter 1 deals with the introduction and background. Chapter 2 deals with the legal framework. Chapter 3 deals with remedies for unprotected strikes and unlawful activities during strikes. Lastly Chapter 4 deals with conclusion and recommendations.

Browsing by Author "Fergus, Emma"

Results Per Page

Sort Options