Law, Democracy & Development - Special issue 1, January 2007
Volumes & issues
Special issue 1, January 2007
Source: Law, Democracy & Development 11, pp XVII –XX (2007)More Less
Ce numéro spécial de LDD est publié en association avec DITSELA (Development Institute for Training, Support and Education for Labour - L'Institut de développement pour la formation, le soutien et l'éducation pour le travail) ; il s'agit de la branche formation et éducation des trois principales fédérations syndicales sud-africaines : COSATU (Congress of South African Trade Unions - Le Congrès des syndicats sud-africains), FEDUSA (Federation of Unions of South Africa - Fédération de syndicats d'Afrique du Sud) et NACTU (National Council of Trade Unions - Le Conseil national des Syndicats). 'Ditsela' signifie également 'les chemins' en langue Sotho.
Source: Law, Democracy & Development 11, pp XI –XVI (2007)More Less
This special issue of LDD is brought out in association with DITSELA (Development Institute for Training, Support and Education for Labour), the education and training arm of South Africa's three main trade union federations COSATU (the Congress of South African Trade Unions), FEDUSA (the Federation of Unions of South Africa) and NACTU (the National Council of Trade Unions). 'Ditsela' also means 'pathways' in seSotho.
Author Roger RonnieSource: Law, Democracy & Development 11, pp 1 –11 (2007)More Less
In considering and analysing the experiences of workers and the organised working class over the ten years since the LRA was promulgated, I wish to raise some issues which I think are important in drawing the correct conclusions from our experiences and planning a progressive way forward experiences which for me indicate that, while we may be winning a few skirmishes, we are definitely losing the war.
Author Darcy Du ToitSource: Law, Democracy & Development 11, pp 1 –15 (2007)More Less
No area of South African law is more critical than the prohibition of unfair discrimination, especially in the workplace. Under apartheid, discrimination against workers on grounds such as race and sex was not only permitted; it was legally enforced. In addition, employers had a relatively free hand to discriminate on grounds such as religion, disability or political opinion. No stable economy, let alone a democratic society, can be built on such foundations. The eradication of "unfair discrimination" in the workplace was essential to developing the new employment dispensation envisaged by the Constitution1 and the Labour Relations Act of 1995 ('LRA'). Section 6 of the Employment Equity Act 55 of 1998 ('EEA') now embodies this objective.
Author Jan TheronSource: Law, Democracy & Development 11, pp 25 –38 (2007)More Less
The article examines the role of trade unions in relation to the difficult question of which workers are, or should be, regarded as employees for the purposes of labour legislation. It starts by noting the changes in the globalised labour market that have led to the creation of hierarchies (divisions) amongst workers in the workplace - between those employed by the owner of the workplace and the workers of 'temporary employment services' (TESs); between workers and 'independent' contractors who are not really independent; between workers in standard and non-standard employment; and between workers who are employed and those who are self-employed. The article argues that trade unions cannot afford to ignore these hierarchies. To do so means ignoring the traditions of working class solidarity on which trade unionism is founded and helping to entrench these hierarchies. The alternative is to challenge the divisions by organising the workers who are excluded at present. Significant gains can be made, it suggests, by working in parallel with other organisations, including those mobilising in the informal economy. The starting point, however, is in the workplaces where their own members are located.
The growing informalisation of work : challenges for labour - recent developments to improve the rights of atypical workersAuthor Rudi DicksSource: Law, Democracy & Development 11, pp 39 –48 (2007)More Less
The South African labour market faces a number of challenges; key to this is the shift from formal employment to atypical work. This phenomenon is not a South African problem but a growing challenge to labour throughout the world. The growing informalisation of the workforce brings significant changes to the traditional employment relationship, including the workplace. Informalisation is characterised by workers shifting from permanent employment to casual employment and fixed-term contracts, outsourcing and employment through labour brokers. These forms of employment are accompanied by growing insecurity of employment, the undermining of basic conditions of employment, the erosion of workplace rights and decreasing access to skills and equity at work. While it is important to understand these changes, society does not seem to have accepted that there is a new form of employment relationship. Various proposals and legislative considerations should be assessed to address and stem the tide of atypical work. These should include improving minimum standards and providing enhanced protection to atypical workers; improving monitoring and enforcement and reforming labour market institutions to better confront the shift from permanent to casualised employment. Research indicates that the shift from formal employment to atypical forms of employment is on the increase. Many workers who exit the labour market having been in formal employment will most likely re-enter the market as an atypical employee. This has had, and will continue to have, a major impact on the character of the workforce. It leads to instability within the labour market and impacts negatively on employment growth, and on the reduction of underemployment and poverty and decreasing inequality. The consequences are greater social and economic insecurity.
Author Tapiwa GandidzeSource: Law, Democracy & Development 11, pp 83 –96 (2007)More Less
Dismissals for operational requirements are permitted by the Labour Relations Act. However, such dismissals must still pass the test for substantive and procedural fairness. Of great interest to labour are cases dealing with whether an employer who unilaterally changes terms and conditions of employment may dismiss the affected employee for operational requirements should that employee refuse to accept the new terms and conditions. Also of significance in the area of dismissals for operational requirements are the 2002 amendments to the LRA allowing labour to either strike or refer a matter to the Labour Court in the face of proposed retrenchments.
Author John M. BrownSource: Law, Democracy & Development 11, pp 97 –108 (2007)More Less
This article examines sections 142(A), 143, 146 and 51 of the Labour Relations Act 66 of 1995, which deal with the enforcement of CCMA arbitration awards, and section 33 of the Arbitration Act 42 of 1965 which deals with the enforcement of non-CCMA arbitration awards. It analyses the relevant case law and highlight the real practical difficulties facing worker litigants in enforcing arbitration awards in their favour. Sections 143 and 158 (1) (g) of the LRA and the relevant case law are also examined. The final section of the article deals with the enforcement of collective and settlement agreements and analyses sections 23, 24, 31,32, 33A, 51A and 158 (i) (c) of the LRA and relevant case law. The essential role of bargaining councils in monitoring and enforcing collective agreements is also highlighted. The article concludes that '[t]he challenge facing the labour movement is to equip its organisers with the legal knowledge and drafting skills to negotiate and draft agreements which best promote the interests of workers and avoid legal pitfalls when trying to enforce agreements which are challenged by an employer'.
Source: Law, Democracy & Development 11, pp 109 –120 (2007)More Less
The article looks critically at the Insolvency Act prior to the amendments of 2002 and the limited protection it gave workers on the insolvency of their employer. The effect of the Act was that workers' contracts of employment were automatically terminated by their employer's insolvency, leaving them with a limited preferent claim against the employer's insolvent estate. Since certain other creditors (such as the Revenue Service) ranked higher than employees, there was often little left for workers to recover.