Acta Juridica : Reinventing labour law : reflecting on the first 15 years of the Labour Relations Act and future challenges (20/09/2012)

Preface

2012-09-19T09:55:57Z

Author: Le Roux, Rochelle Rycroft, Alan
Vol
Publication: 2012
Page: vii-viii
Abstract: The employment relationship has throughout the centuries been one of the most regulated of contracts. This regulation has extended to basic conditions, health and safety, unemployment insurance, dismissals, strike law, and much more. Most regulation reflects the priorities and policies of the government of the day. The Labour Relations Act 66 of 1995 (the LRA) was a fresh start in a democratic South Africa, an Act harnessed to the Bill of Rights which, for the first time, guaranteed a range of labour-related rights.

Is South African labour law fit for the global economy?

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Author: Hepple, Bob
Vol
Publication: 2012
Page: 1-20
Abstract: South Africa's exceptionally low ratio of employment to working age population is often blamed on 'rigid' labour laws. However, the World Bank's Employing Workers indicators provide no persuasive evidence to support this claim. Instead of this kind of crude reductionism, the task of labour lawyers is to advance policies and practice that aid development, employment growth and redistribution by building on South Africa's comparative advantages on a floor of fundamental human rights. This contribution examines a number of possible economic and political models that advance these goals. It argues that the model of 'regulated flexibility' is still appropriate for South Africa, albeit that a number of failures in the application of this model need to be corrected.

Labour law beyond employment

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Author: Benjamin, Paul
Vol
Publication: 2012
Page: 21-40
Abstract: Traditional justifications for the purpose of labour law have focused on its role in remedying the imbalance of bargaining power within the employment relationship. More recent scholarship focuses on the broad range of regulatory functions that labour law can play in the labour market. These include enhancing the employability of individual employees, enhancing access into the labour market by new entrants, and assisting working people during transitional phases in their working lives. Contemporary debates about labour market regulation in South Africa need to take account of these diverse factors in order to respond to the country's ongoing high levels of unemployment and inequality, and to provide a basis for greater consensus over the future direction of labour market regulation.

The new unfair labour practice

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Author: Le Roux, Rochelle
Vol
Publication: 2012
Page: 41-57
Abstract: This contribution explores the potential application of s 23(1) of the Constitution to those workers who are not employees in an employment relationship with an employer. The contribution argues, with reference to international developments and local jurisprudence, that the modern manifestation of work calls for this constitutional right to fair labour practices to be detached from its historical foundations, and for it to acquire significance beyond incidents that can arise only from traditional employment relationships. In particular, it is argued that a shift of focus from the employment relationship to the regulation of the labour market and its participants is required.

Prisoners of a paradigm : labour broking, the 'new services' and non-standard employment

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Author: Theron, Jan
Vol
Publication: 2012
Page: 58-83
Abstract: Labour broking, as temporary agency work is commonly known in South Africa, has become the most contentious form of non-standard employment - with the premier trade union federation calling for it to be banned. Utilising a case study of a labour broker engaged by a transport service, this contribution illustrates why meeting this call is easier said than done: it is conceptually difficult to disentangle labour broking from what are termed the 'new services'.
At the same time it is problematic to categorise labour broking as representing non-standard employment, without acknowledging the fundamental differences between this form of employment and those forms of non-standard employment in which there are only two parties involved. The situation in which a client who provides the work is not legally accountable for the conditions under which an agency's workers perform the work is incompatible with the employment paradigm on which our system of labour relations is premised.
This problem of incompatibility is not resolved by providing legal techniques to create accountability - such as making the client jointly and severally liable with the agency. So long as the workplace of the agency's worker continues to be regarded as the workplace of his employer, the agency, rather than the workplace of the client, the problem of incompatibility remains unresolved. This is because the workplace is the foundation on which workers are able to exercise organisational rights, and bargain collectively. A new paradigm for the regulation of labour relations will emerge in the same way the present system of labour relations did: by 'regulation from below', by means of workers' organisations and by collective bargaining.

The relational contract of employment

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Author: Cohen, Tamara
Vol
Publication: 2012
Page: 84-101
Abstract: This contribution considers whether, given the unsuitability of classical contract-law principles for interpreting employment contracts, relational contract theory with its broader set of obligations is capable of a more sophisticated delineation of the employment relationship. Relational contract theory recognises that, in interpreting long-term personal contracts, the norms of co-operation and reciprocity should shape the determination of the parties' contractual rights and obligations. The contribution concludes that, by viewing contractual obligations through the prism of relational contract theory, the common law is capable of harmoniously co-existing with labour legislation and policy and can play a meaningful role in regulating fair labour practices.

Dismissal for misconduct - ghosts of justice past, present and future

2012-09-19T09:55:57Z

Author: Van Niekerk, Andre
Vol
Publication: 2012
Page: 102-119
Abstract: The Labour Relations Act 66 of 1995 fails to articulate a normative foundation from which the right not to be unfairly deprived of work security might be derived. While the courts have established that the determination of a fair sanction for workplace misconduct necessarily entails a value judgment, they have failed to recognise that principled decision-making requires a coherent conception of justice. I review the various conceptions of fairness that have served to underpin the South African law of unfair dismissal since its inception. To the extent that a balancing metaphor of employer versus employee interests is currently employed to determine the fairness of the sanction of dismissal, I suggest that this model is flawed. A conception of justice more closely aligned with constitutional values of dignity and autonomy requires that the sanction of dismissal is a rational response to employer goals of economic efficiency, and that a relationship of reasonable proportionality exists between the sanction and those goals.

Labour dispute resolution under the 1995 LRA : problems, pitfalls and potential

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Author: Steenkamp, Anton Bosch, Craig
Vol
Publication: 2012
Page: 120-147
Abstract: The objectives of labour dispute resolution are, and have for a long time been, speed, accessibility (in terms of geographical location, cost and relatively simple procedures) and legitimacy (which derives from representivity in the dispute resolution body, certainty and expertise). The raisons d'etre for these are fairly obvious: neither employers nor employees (especially those recently dismissed) can afford delays and they do not have an intimate knowledge of legal processes. Labour dispute resolution bodies have an important role to play in maintaining an appropriate balance between the rights and interests of employers and employees while maintaining relatively healthy industrial relations with minimal resort to self-help.
This contribution aims to critically examine the dispute resolution institutions and processes established by the Labour Relations Act 66 of 1995 (the LRA) in order to assess the extent to which they have realised the objectives of promoting healthy industrial relations.We deal with the examination of these institutions in two parts: in the first, Craig Bosch deals with conciliation and arbitration in the Commission for Conciliation, Mediation and Arbitration (the CCMA); and in the second, Anton Steenkamp deals with the labour court.

Precedent, separation of powers and the Constitutional Court

2012-09-19T09:55:57Z

Author: Ngcukaitobi, Tembeka
Vol
Publication: 2012
Page: 148-169
Abstract: The Constitutional Court has recently pronounced in Gcaba v Minister for Safety and Security that administrative law, and its incarnation the Promotion of Administrative Justice Act 3 of 2000 (PAJA), have no application to public sector employment. Before Gcaba, the courts had not squarely confronted a fundamental issue concerning the relationship between labour law and administrative law: at the time when PAJA was enacted, the legislature was aware of the existence of the Labour Relations Act 66 of 1995 (the LRA) with its application to public sector employment contracts. Despite this, the legislature, in promulgating PAJA, did not expressly exclude decisions in this sphere from its reach. By not expressly excluding employment contracts from PAJA's reach, the legislature made a policy choice. It was a choice which had already been recognised, if not entrenched, in a previous decision of the Constitutional Court in Fredericks and Others v MEC for Education & Training, Eastern Cape and Others. In this contribution I will argue that the effect of the Gcaba decision was to overturn the earlier ruling of the court in Fredericks. This has ramifications: first, I argue that the Gcaba decision upsets a legislative choice; and second, the decision departs from binding precedent. I will argue that this has implications for democracy, the role of the legislature and the location of legislative policy-making. I will not enter the debate about whether the outcome in Gcaba was correct or preferable, but will note that the location of policy-making has profound implications for the legitimacy of any particular legislative policy outcomes.

Refining review

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Author: Fergus, Emma Rycroft, Alan
Vol
Publication: 2012
Page: 170-194
Abstract: This contribution examines the test for review of CCMA arbitration awards following Sidumo & another v Rustenburg Platinum Mines Ltd & others. In doing so, it emphasises first the efficient, accessible and informal nature of labour dispute resolution prescribed by the Labour Relations Act 66 of 1995 (the LRA). Specifically highlighted in this regard are the features of review, in the light of the LRA's history and objects. The contribution then turns to Sidumo, in which the Constitutional Court held that the standard of reasonableness suffuses s 145 of the LRA. Thereafter, relevant cases in which this standard has been applied are discussed, with reference to the courts' often ambiguous and inconsistent approaches thereto. Cases in which the standard has been (at least) somewhat clarified are considered. Finally, whether the reasonableness standard is detracting from, rather than promoting, the LRA's objectives is questioned.

The necessary evolution of strike law

2012-09-19T09:55:57Z

Author: Du Toit, Darcy Ronnie, Roger
Vol
Publication: 2012
Page: 195-218
Abstract: The Labour Relations Act sets out to promote 'orderly collective bargaining' and regulates the right to strike as an essential element of collective bargaining. In a number of aspects, however, ranging from violence erupting in the course of strike action to the practical exclusion of large sections of the workforce from exercising the right to strike (or any other form of economic pressure in support of bargaining demands) it has become apparent that the current model is in need of adjustment. Examining this model in the context of globalisation and the prevalence of non-standard employment, the contribution considers seven areas of possible legislative development: individual versus collective action, the prohibition of strikes over 'disputes of right', dispute resolution in essential services, the demarcation of sectors, 'primary' and 'secondary' strikes, conciliation of disputes that may give rise to strikes, and the creation of greater space for co-determination as opposed to adversarialism. The contribution concludes by noting the virtual absence of any amendment to the framework of strike law since the enactment of the Labour Relations Act in 1995 and argues that 'proposals for the rationalisation of collective bargaining and strike law need to find their way on to the legislative agenda'. (Since the writing of the contribution, the Labour Relations Amendment Bill approved by Cabinet on 20 March 2012 put forward a number of proposed amendments to strike law, including at least one change to the regulation of dispute resolution in essential services which is argued for in the contribution.)

The state of centralised bargaining and possible future trends

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Author: Godfrey, Shane Bamu, Pamhidzai
Vol
Publication: 2012
Page: 219-243
Abstract: This contribution examines the state of the centralised bargaining system in South Africa and discusses three trends that could indicate its future trajectory. Recent research on the bargaining council system is surveyed, which provides empirical data on the number, coverage and representivity of bargaining councils, as well as on bargaining council wages, social benefit funds, exemptions and dispute resolution. The contribution also considers the development of centralised bargaining forums outside the bargaining council system. While the research reveals that there have been some positive developments in the centralised bargaining system, they are outweighed by a number of challenges which threaten the system, particularly in the private sector. The challenges have been exacerbated by weakening trade union organisation in many sectors, and growing casualisation and externalisation of employment.
The state of the bargaining council system in the private sector contrasts with the strength of centralised bargaining in the public sector, with the latter seemingly becoming the centre of gravity of the collective bargaining system. The growing importance of collective bargaining in the public sector is one of the three trends on which the contribution focuses. Another trend is the strengthening of bargaining council system through the slow but steady process to establish a bargaining council in the mining sector. The remaining trend, epitomised by the difficulties being faced by the bargaining council in the clothing sector, highlights the challenges facing the bargaining council system. The three trends, however, are contradictory, which makes it impossible to predict the future of centralised bargaining in the South Africa. Surprisingly, the proposed amendments to the Labour Relations Act make no reference to the bargaining council system, which is a missed opportunity to provide it with the support it needs to meet the challenges it faces.

The prohibition of unfair discrimination and the pursuit of affirmative action in the South African workplace

2012-09-19T09:55:58Z

Author: Dupper, Ockert Garbers, Christoph
Vol
Publication: 2012
Page: 244-269
Abstract: This contribution reflects on the prohibition of unfair discrimination and affirmative action in South Africa. The prohibition of unfair discrimination in the Employment Equity Act is analysed in the light of developments at an international level and in the light of a comprehensive survey of South African jurisprudence. Based on this analysis, the authors conclude that the constraints associated with any prohibition of unfair discrimination, as borne out by the South African experience, inhibit the contribution that the prohibition and affirmative action can make towards the pursuit of substantive equality. Building on this analysis, affirmative action is placed under the spotlight in the second part of the contribution. As a redistributive strategy, affirmative action specifically attaches socio-economic benefits, such as jobs or government contracts, to those disadvantaged by status. However, this raises a number of important challenges, three of which are explored in this contribution. Questions are raised about the relationship between affirmative action and social identity, the demarcation of beneficiaries, and the potential impact of affirmative action measures.

The evolving relationship between labour law and social security

2012-09-19T09:55:58Z

Author: Mpedi, L.G.
Vol
Publication: 2012
Page: 270-285
Abstract: This contribution endeavours to provide some perspectives on the relationship between labour law and social security in South Africa. It commences by defining the concepts 'labour law' and 'social security'. The contribution argues that although the two concepts may have different aims and purposes, they are interconnected. It proceeds by examining the linkages, gaps, problems and challenges in the relationship between labour law and social security. This discussion is followed by some thoughts on possible solutions for remedying the gaps, problems and challenges identified as well as some concluding observations.

People with disabilities inside (and outside) the South African workplace : the current status of the constitutional and statutory promises

2012-09-19T09:55:58Z

Author: Christianson, Marylyn
Vol
Publication: 2012
Page: 286-305
Abstract: People with disabilities (PWD) are a vulnerable group in our society and as such were placed high on the agenda of the Constitution in 1996, and subsequent labour and social security legislation. This contribution will briefly examine international standards for PWD and interrogate whether the fundamental constitutional rights to equality, dignity, and freedom, and the socioeconomic rights as set out in s 27 of the Constitution have changed the lives of PWD inside (and outside) the workplace in our country. The contribution will assess the extent to which discrimination against PWD has been eliminated in the workplace and the reach of the affirmative action provisions for PWD in the Constitution and the Employment Equity Act of 1998. Acknowledging that many PWD are unemployed and often live in conditions of poverty, a brief examination of the current disability grant system will attempt to interrogate further whether the constitutional right in s 27, granting access to social assistance for those who cannot support themselves, has achieved its promise.

Changing the role of the corporation : a journey away from adversarialism

2012-09-19T09:55:58Z

Author: Davis, Dennis Le Roux, Michelle
Vol
Publication: 2012
Page: 306-325
Abstract: This contribution explores the relationship between corporate and labour law after the introduction of the Companies Act of 2008. It is argued that the potential for a dialogic model contained in certain provisions of the Labour Relations Act 1995 notwithstanding, an adversarial model of labour relations has continued to dominate in South Africa. Similarly, the company law which developed out of the provisions of the 1973 Companies Act was based almost exclusively on a shareholder model of the corporation.
The 2008 Companies Act contains a number of innovations which take account more fully of the interests of other stakeholders in the corporation, in particular employees. At the same time there has been compelling criticism of the continued dominance of the adversarial model of labour relations accompanied by a series of arguments in favour of a greater recognition of mutual interest.
The contribution examines the potential for congruence of these arguments with the structure of existing labour law and the possibilities for a broader concept of the corporation which can be sourced in a series of provisions in the 2008 Act. On this basis, the contribution seeks to develop a model of the corporation that may reinforce the possible development of a dialogic labour law.

Linking trade to labour standards : a promising synergy or a double-edged sword?

2012-09-19T09:55:58Z

Author: Collier, Debbie Bamu, Pamhidzai H.
Vol
Publication: 2012
Page: 326-347
Abstract: Trade liberalisation is increasingly promoted and regulated through regional, bilateral or unilateral trade arrangements. In recent years some of these arrangements have provided for sanctions in the case of non-compliance with the labour standards included in the agreement. This link between trade rights and labour standards is controversial. Those who argue in favour of the inclusion of labour standards in trade agreements do so on either economic or normative grounds: the economic argument is that a trading partner that does not adequately protect labour standards affords that country an unfair advantage over a country that does protect labour standards; while the normative argument is that it is morally offensive to trade in goods that have been produced by exploited labour. Those who argue against the inclusion of labour standards in trade agreements also advance economic and normative grounds: from an economic perspective, exclusionists argue that the comparative advantage of developing countries is their ability to produce low-wage goods and are concerned that a link between trade and labour standards may be exploited for protectionist purposes. Normatively motivated exclusionists argue that labour standards are a human rights concern that should not be linked to trade and should be promoted through other means.
This contribution assesses the arguments for and against the inclusion of labour standards in trade arrangements against the backdrop of a case study involving a recent complaint against Guatemala for failure to enforce its labour standards in terms of the Dominican Republic - Central America Free Trade Agreement (CAFTA-DR).

Reception of international labour standards in common-law legal systems

2012-09-19T09:55:58Z

Author: Cheadle, Halton
Vol
Publication: 2012
Page: 348-364
Abstract: Fundamental human rights, which include the core international labour standards, are inherent in all human beings and find expression in international human rights instruments, national constitutions and legal systems throughout the world. Although the dualist approach to international law regards domestic law and international law as separate systems of law, there has been an increasing use of international human rights law by municipal courts in common-law systems that adopt the dualist approach. Common-law systems provide a range of mechanisms for incorporating international law into domestic law or relying on it to develop domestic law. The contribution looks at three broad mechanisms of incorporation: legislative enactment (transformation); common-law incorporation (international customary law and common-law development); and constitutional and statutory interpretation. It argues that even in the most rigid of dualist approaches, there are legal pathways available to practitioners and courts to use international labour standards as a source to enrich domestic law and harmonise it with comparative and international best practice.