Browsing by Department "Institute of Development and Labour Law"

Now showing 1 - 20 of 41
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    A critical discussion of the collective bargaining provisions in Labour Relations Act 66 of 1995
    (1996) Marinus, Grant Brett; Thompson, Clive
    The Labour Relations Act of 1995, hailed as an achievement to rank in importance alongside the Industrial Conciliation Act of 1924, remains the legal punchbag of the nineties. Despite its hurricane passage through NEDLAC and Parliament, the criticism generated by its predecessor (the Draft Bill) remains for the most part unanswered. It would appear that the drafter's optimism, epitomised by the kind fashionable, rhetoric that has become equally synonymous with this the age of co-operation and reconstruction, will have to suffice.
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    Absenteeism: better or worse?
    (2013) Muller, Andre John Albert
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    BEE - Basis, Evolution, Evaluation - A Critical Appraisal of black economic empowerment in South Africa
    (2014-07-30) Mparadzi, Andrea
    This paper is a reflection of the evolution of Broad-Based Black Economic Empowerment (BBBEE/BEE) and an evaluation of the current state of the programme. BEE is one of the most topical subjects in current South African (SA) economic discourse. Born of a need to remedy the ravages of Apartheid, BEE has evolved, and indeed continues to evolve, into one of the most elaborate and ambitious empowerment endeavours the world over. BEE aims to integrate a broad base of previously disadvantaged persons into the mainstream economy and to redistribute control over the country's economic resources. An elaborate and comprehensive regulatory framework has been crafted to bring these aims to fruition. This paper provides an overview of this framework, and through a methodical analysis of the governing instruments, the function and legal status of each instruments is clarified and the interrelationship between them is illustrated. It is argued that while this governing structure has aided BEE progress, advancement has been marginal. This can be attributed to the various hurdles that stand to hinder the initiative. This paper further highlights challenges that are both intrinsic and extrinsic to the regulatory framework, with a particular focus on problems of : financing; the broadness of broad-based BEE; fraud and; constraints of attitude. This author concludes that BEE, as a work in progress, is a programme that holds great prospects, if only the surmountable hurdles are overcome.
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    Building or stumbling, blocks anyhow: a comparative approach of regional labour mobility frameworks towards global solutions
    (2018) Sauriol-Nadeau, Isabelle; Kalula, Evance
    While concessions to labour mobility at the international level seem off the agenda, with the General Agreements on Trades in Services essentially tabled, the past decades have produced a proliferation of regional trade agreements (RTAs), some of which are facilitating labour mobility specifically. In this paper, the author first conducts a comparative overview of RTAs that have a form of labour mobility programmes: namely, ECOWAS, ASEAN, the European Union, NAFTA, CARICOM and MERCOSUR. Building on an overview of the regulatory frameworks, institutions and legal instruments of these RTAs, the author seeks to find if patterns or lessons to be learned emerge that are relevant from a global perspective and to enhance the legal architecture of international labour mobility. The findings show positive outcomes, with some RTAs generating trade benefits and even moving forward with a common passport based on the newly shared regional identity, and at times even creating dispute settlement and legal systems for regional litigious matters. On the other hand, this exercise also points to various problems such as the poor implementation of the labour mobility provisions, to overly strict restrictions based on skill and to difficulty securing documents to benefit from the labour mobility programmes - in some of the agreements. In the second part, the author discusses these challenges faced in these regional systems. She notes that prioritising skilled as opposed to low-skilled workers has not yielded a comparative advantage and may also be fostering irregular movements. She also highlights that trade liabilities emerge from the association of countries with similar levels of development and that it accentuates the North-South paradigm. These problems disrupt access to the benefits of the programmes, which ultimately creates irregular migrations and uneven labour standards for migrant workers. Finally, the author finds that most RTAs reviewed are developing their own legal frameworks with limited interest for the international instruments available, which are at best a source of inspiration. In the third part, the author invites the reader to challenge many preconceived ideas on international mobility emerging from the first two sections, and shares her thoughts on ways forward to build an international framework, based on existing scholarly work and considering the unpopularity of the GATS. She concludes with a discussion on ‘new regionalism’ as an alternative until a shared international framework to facilitate migrations is set up, with the possibility of a merger between RTAs from the North and the South. This, she argues, could possibly unleash the full benefits of labour mobility such as increased GDPs, poverty reduction and tackling irregular migrations; benefits that have not been entirely felt to date.
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    Cape Town clothing workers' attitudes towards key aspects of and alternatives to regulation by the Bargaining Council
    (2015) Maraire, Wesley; Godfrey, Shane
    The South African clothing industry has shed over 70 000 jobs in the last decade. This has given rise to huge debate in the industry and academia about the role of the bargaining council in regulating the industry as well as other factors such as trade liberalisation that are causing the industry to shrink. This study explores attitudes held by formal and informal clothing workers toward the regulatory environment and possible alternatives to current regulation by the bargaining council. The research aimed to explore worker understanding of the regulatory environment, in particular the wages versus job-security trade-off; to find out whether workers are aware of alternatives to the current wage model, such as performance-based incentive pay; to explore the attitudes workers hold toward home-based informal factories; and to assess the attitudes of workers to worker cooperatives. Using semi- structured face-to-face interviews, 24 respondents (ten formal and 14 informal workers) were selected to participate in an attitude survey that explored their feelings across attitudinal classes - cognitive, affective, and behavioural, using the non-probability purposive sampling technique. Research findings show that both sets of workers generally had a very poor understanding of the industry's regulatory environment. After receiving brief explanations of alternatives to regulation by the bargaining council, the workers understood them cognitively and attitudes varied between the two groups. All workers were generally against performance-based incentive pay because it requires them to place too much trust in employers. Informal work was viewed as a viable alternative although formal workers could not conceive joining informal firms. Both sets of workers expressed favour towards worker co-operatives, which have the advantage of changing the working relationship from manager and worker to worker as owner, thus empowering workers. All workers, however, demonstrated overall awareness of the pressures facing the clothing industry, such as those caused by cheap Chinese imports. The evidence is however, not sufficient to arrive at a set of conclusions regarding alternatives to regulation by the bargaining council.
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    Collective bargaining in a globalised era : a change in approach
    (2012) Gweshe, Rufaro; Godfrey, Shane
    The government in the new democratic South Africa prioritised resolving the problems plaguing the industrial relations system. It did this by enacting a new labour relations Act. This Act repealed the 1956 LRA and enacted the Labour Relations Act of 1995 which established a collective bargaining system combining new elements with elements from the previous legislative dispensation. The new system retained the voluntary duty to bargain. It balanced this by entrenching a protected right to resort to industrial action as well as by creating organisational rights available to unions with ‘sufficient’ and/or majority representivity. The former enabled unions to compel the employer to bargain, whilst the latter assisted unions in bargaining. The Act also promoted centralised bargaining. It did this by retaining, but renaming industrial councils, bargaining councils and by ensuring that bargaining council agreements could be extended where parties to the agreement covered the majority of workers in a sector. Therefore, the effectiveness of trade unions depended, to a substantial extent, ‘on their representativeness and their cohesiveness’. The collective bargaining mechanism established by the 1995 LRA thus became the primary ‘mechanism for setting wages and other terms of employment…a way of managing complex organisations…a form of joint industrial government, and generally…a means of regulating labour-management relations’.
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    Collective bargaining in the education sector in South Africa: Should this sector be classified as an essential service?
    (2015) Rezandt, Patrick Alexander; Singlee, Suffinah
    Collective bargaining within public education and limited confidence in the arbitration process has resulted in strike action by educators with adverse consequences on learners. The right to basic education is fundamental and of national importance. Depriving a society the right to basic education is tantamount to depriving them of their human dignity; hence their human right. However, the learner's passive right to basic education is seemingly in conflict with the educator's active right to strike action and freedom to associate. In reconciling these conflicting constitutional rights, this mini-dissertation argues that basic education should be designated as minimum service within essential services. Relying on international and domestic legal instruments, case law and academic literature, this dissertation justifies the need to persuade the Essential Services Committee (ESC) to recommend designating basic education as essential service to parliament. This should be based on negotiations and recommendations between the government and educator's trade union to recommend designating basic education as essential service. This, however, will be contingent on the imperative to ensure certainty and credibility in the dispute resolution mechanisms where collective bargaining fails. This dissertation further recommends the need to strengthen the processes of conciliation, mediation and arbitration and also ensure compliance with compulsory arbitration awards, as a formidable measure to balance both the rights of the educator (freedom of association) and the learner to basic education in South Africa.
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    The convergence of labour and commercial law: executive dismissals in contemporary South Africa
    (2014) Pottas, Ruan; Rycroft, Alan
    The intricacies and legalities concerning the notion that under certain circumstances a director may be regarded as an employee have given rise to much litigation in the past two decades. It is humbly submitted that few scenarios have created as much confusion and grief as the aforementioned idea in our South African jurisprudence. For the past two decades lawyers have jousted in the CCMA, Labour Court and Labour Appeals Court on the question of whether or not a company director is an employee and subject to the protection from unfair dismissal contained in the LRA. This dissertation approaches the controversial topic by examining the history and origin of the concept of the office of director. The legislative framework concerning company and labour law is examined along with the judicial decisions which have shaped this particular aspect of the law. A brief overview of comparative labour law is discussed in an attempt to gain a multinational view of the matter. Throughout this dissertation it is of cardinal importance to view the text through both the lenses of Company- and Employment Law. Failing to do so will have the inevitable result that one does not properly reflect and weigh in on the theoretical implications associated with the development of both these branches of law.
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    Corporate governance and labour relations: a sustainable partnership
    (2014) Chennels, Jack Francis Erskine; Fergus, Emma
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    Decent work for all its meaning and content, social dimensions and SADC policy perspectives
    (2014-07-30) Setlojoane, Pheta John
    The world is undergoing rapid changes some of which dent both the social and economic development. The world of work gets affected by these changes. Society faces risks that ultimately leave many of its members poor and destitute. At the end of the day society looks up to the government to provide solution for these problems. It is at this juncture that the state has to formulate policies that can best deal with this kind of issues. Social protection becomes very important in an attempt to ward off the harmful effects of the risks society faces. However both experience and research would have one believe that finding social protection that is comprehensive for the benefit of the entire society is an uphill battle especially in developing or low in some economies. The SADC region is not immune to this predicament as it is considered one of the poorest in the world. Nevertheless, this does not mean that the region is succumbing to this challenge as it continues to find possible ways out. Its initiatives have been to include in its policy formulation the measures that are advocated by the ILO in order to strengthen their regional policies especially in the labour law context. For this reason the importance of the ILO in the regional policy promotion and development cannot be overemphasized. The idea of "borrowing and bending" still continues in the region. Not only is this important within the labour law context, but in other disciplines. The ILO introduced, in one of its recent reports, the concept of decent work for all. The cardinal issue is the importance and relevance of this concept and its content in fostering social protection and labour issues in the SADC region. This question is the fulcrum upon which the discussion in this study is based
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    Decent work in Malawi: social security; extension of social insurance to all workers
    (2015) Khembo, Loness; Le Roux, Rochelle
    The only way Malawi can ensure adequate social security coverage to her citizens is to extend the scope and coverage of social security benefits provided by the labour legislations to all workers as they are more reliable and less burdensome on the poor state. This is premised on the fact that most Malawians work, but only a few are employees as shall be seen later in this chapter. This will reduce the burden on the state of providing social security to all her citizens as most will be covered by social insurance. It is against this background that this study analyses the Malawian pieces of legislation on social security with the aim of identifying the gaps that are affecting social security coverage to Malawian workers. In doing so, these legislations will be examined against the relevant international conventions specifically the ILO C 102 and the SADC Code. The study will also focus on how best to improve social security benefits coverage in Malawi and making it more relevant to Malawians.
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    Development of ADR mechanisms in Kenya and the role of ADR in labour relations and dispute resolution
    (2015) Nyakundi, Freda Moraa; Rycroft, Alan
    Alternative Dispute Resolution (ADR) is a vastly growing enterprise in conflict management the world over. Its application in managing labour relations and the attendant disputes has been tested and is well settled. Kenya, in recognition of this phenomenon, has adopted a legal framework making provisions for both ADR and Labour rights in its most supreme law, the Constitution of Kenya, 2010. This informs the theme of the current study. The disciplines that are ADR and labour relations are overwhelmingly extensive. Thus they cannot find conclusive commentary in a single book leave alone a thesis with a predicated word count. This paper is neither a one stop-shop treatise nor an integral text on either disciplines but a comprehensive commentary, on the interplay between ADR and labour relations. Fair treatment has been accorded and care has been borne to neither starve one nor belabor the other. It is a commentary spanning eons, reaching out to the past, tracking development and addressing the prevailing circumstances in respect of ADR's application in labour dispute resolution in Kenya. The rich literature review (books, statutes, conventions, journals, articles) quoted is as informative as it is illuminating, and presents a wealth of knowledge. The overall aim is to assess the place of ADR in labour relations in Kenya and spur academic, intellectual and sector-wise debate on the foregoing.
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    Domestic violence and employment: an examination into retail employer's awareness of and responses to the Impacts of domestic violence on the workplace
    (2007) Kaunda, Nikiwe J; Godfrey, Shane; Smythe, Dee
    There is increased recognition that employees need to maintain a balanced work-home life in order to be successful and productive. One of the major threats to attaining this equilibrium is 'personal' issues such as HIV/AIDS, trauma and domestic violence. Such issues not only have economic impacts on a business' bottom line, but there are _·also social impacts that affect employment relations. The problem is further compounded by the difficulties that employers face in determining first the manner in which social problems become 'workplace' problems, and secondly, in deciding how they can meaningfully intervene. Because of the difficulties employers face in transcending the perceived boundaries between 'public' and 'private' concerns, some of these social problems are not effectively addressed, even though they may have negative impacts on a business. This research provides an expose of the manner in which domestic violence related issues are perceived and dealt with in the South African workplace. The research specifically focuses on establishing whether employers in the clothing, footwear and textile (CFf) retail sector are aware of the impacts of domestic violence on workplace relations. Findings suggest that the first step towards resolving such problems lies first in the ability of employers to identify the manner in which a social problem impacts on a business, and, secondly determining the best way in which employers can utilise existing resources and liaise with social service providers to address these concerns. Domestic violence is a prevalent social problem that requires the intervention of all segments of society. Employers need to start acting now, before the debilitating effects begin to disrupt workplace productivity on a larger scale.
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    The duty to bargain and collective bargaining in South Africa, Lesotho and Canada : comparative perspectives
    (2005) Ndumo, Mothepa E; Kalula, Evance
    Includes bibliographical references (leaves 80-84).
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    An evaluation of "work-life" legislation in South Africa
    (2012) Miller, Kristina Claire; Le Roux, Rochelle
    Includes abstract. Includes bibliographical references.
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    The industrial court in Botswana : an assessment of its contribution to labour relations
    (2001) Kupe-Kalonda, Pearl; Kalula, Evance
    The study briefly outlines the development of labour relations in Botswana with specific emphasis on developments leading to the establishment of the Industrial Court. Various provisions of the Trade Disputes (Amendment) Act 1992 pertaining to the Industrial Court are set out. The study continues to review the nature and functions of the Industrial Court. The study also looks at the Industrial Court process and assesses it in terms of the established principles pertaining to an efficient dispute resolution system.