Law, Democracy & Development - Volume 6, Issue 1, 2002
Volumes & issues
Volume 6, Issue 1, 2002
Source: Law, Democracy & Development 6, pp V –XVII (2002)More Less
This special edition of LDD is devoted to the recent amendments to South Africa's two major labour regulatory statutes. the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA). The articles are based on papers delivered to a seminar organised jointly by the Institute for Development and Labour Law at the University of Cape Town and the Social Law Project at the University of the Western Cape. which took place at the Faculty of Law, University of Cape Town, on 3 May 2002. The amendments took effect on 1 August 2002.
Source: Law, Democracy & Development 6, pp 1 –26 (2002)More Less
The imperative for minimum standards legislation, probably more so than any of the other pieces of labour legislation, is to get the right balance between worker protection and the requirements of employers. In South Africa, with an unemployment rate that is estimated to be between 41.5 per cent and 45 per cent, this imperative assumes very large proportions. The architects of the new Basic Conditions of Employment Act (BCEA) responded to the challenge with the concept of "regulated flexibility", which provided extended and expanded protection for workers but with provision for variation by ministerial or sectoral determination, bargaining council agreement, collective agreement, and individual agreement (as well as specific provisions for temporal flexibility in light of the prospect of progressive lowering of the maximum weekly hours of work). Certain key protections (or "core" rights) could, however, not be varied.
Author Jan TheronSource: Law, Democracy & Development 6, pp 27 –56 (2002)More Less
The Labour Relation Act of 1995 ("LRA") and the Basic Conditions of Employment Act of 1997 ("BCEA") are the cornerstones of the post-apartheid labour relations regime. One might therefore have expected that the July 2000 proposal to amend the LRA and BCEA would be an occasion to reflect on the nature of this regime as well as debating the technicalities of the amendments. In the case of the LRA, these were the most far-reaching yet contemplated. In the case of the BCEA they were the first amendments to be contemplated.
Source: Law, Democracy & Development 6, pp 57 –70 (2002)More Less
The difficulty of making a selection decision can be ameliorated to some extent by the insertion of a probation clause in a contract of employment, which purports to provide the employer with a reasonable period of time within which to assess a new employee's suitability for a position. Despite the intended purpose of the probationary clause. the interpretation and application of these clauses have had a chequered history, resulting in the oft-echoed sentiment that probationary clauses are not worth the paper they are written on. The Labour Relations Amendment Act of 2002 replaced item 8(1) of the Code of Good Practice: Dismissal, with a more detailed set of rules governing the probationary process. This article will examine these amendments and their likely effect.
Author Randall Van VooreSource: Law, Democracy & Development 6, pp 71 –83 (2002)More Less
The Labour Relations Amendment Act of 2002 introduces a range of amendments to the Labour Relations Act. Very significantly for collective labour law, it breaks with the structure of the Act as far as the resolution of operational requirements dismissal disputes is concerned. On the previous approach, parties resorted to power in the last resort to resolve disputes over matters of mutual interest while other disputes could be referred to the Commission for Conciliation Meditation and Arbitration ("CCMA") or a bargaining council and/or the Labour Court for their ultimate resolution. Parties could therefore not resort to industrial action over dismissal disputes. The CCMA was (and remains) the final arbiter of all dismissal disputes relating to conduct or capacity while the adjudication of the more socially significant disputes was reserved for the Labour Court. These included dismissal disputes allegedly based on the employer's operational requirements.
The LRAA has introduced a new approach to the resolution of such disputes in the case of larger employers and dismissals above a certain theshold. This article explores some of the ramifications.
Source: Law, Democracy & Development 6, pp 84 –96 (2002)More Less
According to the Explanatory Memorandum to the Draft Labour Relations Bill the common law inhibited commercial transactions involving the transfer of undertakings. This was because a new employer could not take over a business employees and all. Contracts of employment could not simply be transferred from the old to the new employer without the employees' consent. Rather, they had to be terminated on the basis of operational requirements by the old employer and new contracts had to be concluded between the employees and the new employer. Retrenchment, however, brought with it an often-lengthy consultation process and retrenched employees had to be paid severance benefits which escalated the costs of the transaction. On the other hand, if the old employer retrenched its employees prior to the transfer of the business, they were left at the mercy of the new employer. They would have to re-apply for their jobs, with their continuity of employment and the continuation of their previous terms and conditions being far from certain.
Author Christoph GarbersSource: Law, Democracy & Development 6, pp 97 –113 (2002)More Less
Author Ghalib GalantSource: Law, Democracy & Development 6, pp 114 –123 (2002)More Less
The Labour Relations Act 66 of 1995 sets out to give effect to the right to fair labour practices contained in section 27 of the Constitution. It also attempts to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration processes for which purpose the Commission for Conciliation Mediation and Arbitration (the CCMA) was set up. Labour disputes can also be resolved by independent, accredited alternative dispute resolution services, both private and sector specific bargaining councils.
Source: Law, Democracy & Development 6, pp 124 –138 (2002)More Less
The Basic Conditions of Employment Amendment Act and the Labour Relations Amendment Act both came into force on 1 August 2002.
The general framework of the law relating to unfair dismissal is unchanged. Every employee has a right not to be unfairly dismissed or subjected to unfair labour practices (s 185 of the LRA). Since at least 1996 it has been clear that, in addition to dismissals that are automatically unfair, every dismissal will be regarded as unfair if the employer fails to prove that the dismissal was effected in accordance with a fair procedure and that there was a fair reason related to the employee's conduct or capacity or based on the employer's operational requirements (s 188(1)). If the Labour Court or an arbitrator finds that a dismissal is unfair the employer may be ordered to pay compensation to the unfairly dismissed employee (s 193(1)(c)).
Author Hilary Rabkin-NaickerSource: Law, Democracy & Development 6, pp 139 –150 (2002)More Less
The Protected Disclosures Act has been in operation for some two years. Though the notion of the "whistle blower" has become common currency in South African discourse, the Act remains uncharted territory. It is likely to be more widely used following the enactment of the latest amendments to the Labour Relations Act: Those protected by the PDA may now utilise the "unfair labour practice" and "automatically unfair dismissal" provisions of the Labour Relations Act to seek remedies for "occupational detriment" and "dismissal" in terms of the PDA. The new amendments to sections 186 and 187 of the LRA make explicit reference to the PDA.
The effect of insolvency on contracts of employment : the 2002 amendments to the Insolvency Act and the Labour Relations Act : noteSource: Law, Democracy & Development 6, pp 151 –158 (2002)More Less