Protection against unfair discrimination in the workplace: are the courts getting it right?

Introduction: 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 Constitution and the Labour Relations Act of 1995 (‘LRA’). Section 6 of the Employment Equity Act 55 of 1998 (‘EEA’) now embodies this objectiveDepartment of HE and Training approved lis

A common law hydra emerges from the forum-shopping swamp

Department of HE and Training approved lis

Small enterprises, Industrial Relations and the RDP

Introduction: The small, medium and micro enterprise (SMME) sector spans an immense sweep of economic activity, from entirely non-regulated to entirely regulated businesses, 'from the survivalist activities of informal sector hawkers to high-tech manufacturing enterprises employing fewer than 200 workers'. It comprises, in reality, a multitude of subsectors of different branches of the economy, each with its own specific issues, problems and potentialities. In addressing the issue of industrial relations, it will be neither appropriate nor fruitful to try to deal with this multifaceted 'sector' in its entirety. In the first place, most informal enterprises are conducted by single individuals, families or partnerships and do not involve employment relationships in the normal meaning of the term. In the second place, much informal activity is conducted by unemployed persons seeking merely to maintain themselves until jobs become available. Such enterprises are transient and difficult to target or track for purposes of industrial relations policy. Thirdly, structured collective labour relations as we know them are in many respects premised on the realities of larger workplaces and may be less appropriate to workplaces employing only one, two or a handful of people.Department of HE and Training approved lis

Self-Regulated corporate social responsibility: the impact on employment relations at European corporations in South and Southern Africa: a preliminary overview

Introduction:Corporate social responsibility (CSR) is a complex topic that has generated a host of policy documents and a vast literature. This article sets out to examine a very specific aspect of it: the impact of CSR as practised by European enterprises in South and southern Africa, particularly in the area of terms and conditions of employment. '[H]ow a company relates to its own people', it has been said, 'will be make or break in terms of its reputation as a corporate citizen. The issues affecting the workplace are wide-ranging and significant. Addressing them can go some way towards bridging the gap between the rhetoric of being 'an employer of choice' and the reality. Conversely, 'how a company treats its people' may be seen as a litmus test of corporate values, pivotal to and emblematic of an enterprise's engagement with its socio-economic environment. In the employment arena, moreover, company policy is subject to close scrutiny and ongoing challenge by labour while, at the same time, employment legislation offers a ready frame of reference.Department of HE and Training approved lis

Extending the frontiers of employment regulation: the case of domestic employment in South Africa

Domestic workers form one of the most vulnerable and exploited sectors of the workforce in the world economy. In 2002 South Africa became one of relatively few countries to promulgate special legislation aimed at extending protection to domestic workers in the form of Sectoral Determination 7: Domestic Worker Sector, South Africa. In the context of current debate about setting international standards for the domestic employment sector by means of a Convention and/or Recommendation of the International Labour Organisation, the article examines what has been achieved in South Africa over the past decade in extending legal protection to domestic workers, problems that have been encountered and possible ways in which those problems may be addressed.Department of HE and Training approved lis

Business restructuring and operational requirements dismissals: Algorax and beyond

Introduction:This article revisits a vexed and much-debated question: when is it 'fair' for an employer, in the course of restructuring its business, to dismiss an employee for declining to accept changes in her or his terms and conditions of employment? The background to this question is the fiercely competitive climate in which many businesses, exposed to the full force of global economic pressures, find themselves, giving rise to the need for constant adaptation and, conversely, the spectre of dismissal for many employees. The legal context is a lengthening series of Labour Court (LC) and Labour Appeal Court (LAC) decisions in which the meaning of substantive fairness under these circumstances has been considered in great detail, but in divergent ways.Department of HE and Training approved lis

Oil on troubled waters? The slippery interface between the contract of employment and statutory labour law

Introduction: Although in labour law the term ‘employment relationship’ means more than a contractual relationship, in the vast majority of cases the contract of employment serves as ‘port of entry’ to the employment relationship. In general, its terms (express or implied) will govern the employment relationship except to the extent that they are unlawful or have been superseded by statute or collective agreement. This is the essence of what used to be known as the law of master and servant.Department of HE and Training approved lis

Corporatism and collective bargaining in a democratic South Africa

Introduction:The theme of 'emerging models of worker participation and representation' is uniquely appropriate in relation to South Africa today. In February 1995 a draft labour statute, designed to replace the existing Labour Relations Act and corresponding statutes applicable to the public, education and agricultural sectors, was published One of its more radical innovations is the proposal for a system of worker participation by means of elected bodies to be known as 'workplace forums'. The draft law has turned out to be controversial, and at the time of writing it is not clear what its fate will eventually be. Inter alia, the chapter on workplace forums has reportedly encountered opposition from trade unions as well as employers. Debate of this nature, however, is integral to the emergence of new industrial relations models. This article will attempt to evaluate the proposed system of worker participation and to explore some of its implications which may be of interest internationally. In particular, it will focus on the envisaged relationship between workplace forums and trade unions - a question that will be crucial to the success or failure of the project.Department of HE and Training approved lis

Collective bargaining and worker participation

Introduction: The relationship between collective bargaining and worker participation has two main aspects - • the interaction between collective bargaining as a process (at workplace; sectoral and subsectoral level) and the process of worker participation through workplace forums and similar structures; and • the demarcation of topics for collective bargaining from topics dealt with by workplace participatory structures. This article is concerned with the first aspect - the organizational and institutional sides of the process. Collective bargaining is widely accepted as the primary means of determining terms and conditions of employment. In South Africa its importance has been underlined by the legacy of deep adversarialism between organized labour and employers, the recent struggles of the trade union movement to achieve recognition and continued wariness on the part of unions against real or perceived attempts by employers to undermine their hard-won status. The right to bargain collectively has been written into the Constitution and is guarded jealously in the workplace. In this polarized climate it is inevitable that trade unions will tend to view participatory structures as a potential threat, an instrument that may be used by employers to marginalize unions and avoid collective bargaining.Department of HE and Training approved lis

The small business sector: deregulation or collective bargaining?

Introduction:'Abraham Adamson, owner of A&A Motor Spares in Athlone, Cape Town, was dealing with a client in June 1991 when the sheriff of the court walked in and seized 21 gearboxes and various other movable assets. His [Adamson's] crime was failing to pay two of his 14 employees the overtime rates stipulated by an industrial council which a few weeks earlier he never even knew existed. So begins one of numerous press reports in the last few years recording the burdens placed on small entrepreneurs by legal regulation in general and industrial councils in particular. A senior manager of the Small Business Development Corporation (SBDC) was reported as saying that 'he is aware of 10 cases in the Western Cape where businesses were liquidated by industrial councils over the last two years, generally for non-payment of levies'. Two comments by small employers, quoted in the same report, pithily express their viewpoint: 'Either I pay them [workers] below the minimum wage or I close my doors and they lose their jobs. They prefer to have their jobs.' 'They want to tell me when I can open and close my factory at Christmas. These people are killing employment. If I comply with these rules I will have to close down my company.Department of HE and Training approved lis