Revisiting agency work in Namibia and South Africa : any lessons from the decent work agenda and the flexicurity approach?

Namibia has recently introduced policies regarding the regulation of agency work, and South Africa is in the process of doing the same. The promotion of the decent work agenda by the International Labour Organization (ILO) and the implementation of flexicurity policies by the European Union (EU) have been followed by the adoption of instruments giving recognition to agency work. This contribution revisits the approach to the regulation of agency work in Namibia and South Africa. It considers the question of whether these two cases can cast light on the changing role of labour law regulation as developments unfold on the international front.The article is based on an article presented at the inaugural Labour Law Research Network conference, held on 13–15 Jun. 2013, Barcelona, Spain.The South African National Research Foundationhttp://www.kluwerlawonline.comam201

Vonnisbespreking : Arbeidsmakelaars : enkelwerkgewer, twee kontrakte en talle onbeantwoorde vrae : Assign Services (Pty) Ltd v National Union of Metal Workers of South Africa 2018 39 ILJ 1911 (KH)

In Assign Services the Constitutional Court had to decide whether section 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA), which deems the client to be the employer of low-paid workers after three months, establishes either a sole employer or a dual employer relationship. The Labour Court supported the dual employer approach. However, the Constitutional Court brought certainty and determined that the sole employer interpretation should be adopted. Dlodlo AJ, for the majority, held that this interpretation was to be preferred as it is in line with the objectives of the LRA and the constitutional right to fair labour practices. Despite the legal certainty that the decision brings, it is submitted that the LRA could have been better formulated, as many questions remain unanswered. Section 198A of the LRA applies only in respect of this Act. It does not apply to the provisions of the Basic Conditions of Employment Act 75 of 1997 and the Employment Equity Act 55 of 1998. The drafters of the LRA are criticised for not adopting clear language when giving expression to the goals of the 2014 amendments to the LRA. It remains uncertain how dispute resolution bodies should deal with issues such as the transfer of accrued leave and severance pay. Are such entitlements transferred from the labour broker to the client? This discussion offers suggestions regarding how policy makers could have improved the formulation of the LRA.The National Research Foundationhttp://www.litnet.co.za/category/akademies/litnet-akademieshj2019Mercantile La

Regulated flexibility and the Labour Relations Amendment Bill of 2012

Contrary to statements by Zwelinzima Vavi, general secretary of the Congress of South African Trade Unions (Cosatu), the South African government is not ignoring a decision adopted at the African National Congress' (ANC's) 2007 national congress in Polokwane to ban "labour brokers" (s 198 Labour Relations Act 66 of 1995 (LRA) refers to "labour brokers" as "temporary employment services" (TES); Anon "Labour Brokers" Leadership 19 March 2012 available at http://bit.ly/13Wyg1v (accessed 2013-5-25)). This is confirmed by the ANC's 2009 election manifesto which called for laws that would "ensure decent work... introduce laws to regulate contract work, subcontracting and out-sourcing, address the problem of labour broking and prohibit certain abusive practices" ("2009 ANC Election Manifesto" available at http://bit.ly/gP5gKl (accessed 2013-5-25); Benjamin "To regulate or to ban? Controversies over temporary employment services in South Africa and Namibia" in Labour Law Into the Future: Essays in Honour of D'Arcy du Toit (eds Malherbe & Sloth-Nielsen) (2012) 189 202).http://www.dejure.up.ac.za/am2014ai201

The constitutionalisation of labour law : no place for a superior labour appeal court in labour matters (part 2) : erosion of the labour court's jurisdiction

In Part 1 of this article the reasons for the establishment of specialist labour courts were explored, and the stages of development of the former industrial, and present labour courts were considered. However, as already pointed out, the drafters of the Constitution and the Labour Relations Act of 1995 (the “LRA”) had different goals in mind when creating the overall scheme of the courts respectively responsible for the adjudication of civil and constitutional matters and those in relation to labour matters. Ultimately, this prepared fertile ground for the superior courts to clash over the ultimate power to consider appeals in labour matters. Part 2 of this article explores the development of jurisprudence after the inception of the Constitution, which illustrates the gradual erosion of the Labour Appeal Court’s status in labour-related matters to the point where there is no logical reason for its continued existence.http://www.journals.co.za/content/journalam2016Mercantile La

Oordrag van besighede as lopende ondernemings : die oorbeskerming van werknemers onder insolvente omstandighede

Die arbeidsreg beskerm werknemers wanneer besighede as lopende ondernemings oorgedra word. Die nuwe werkgewer moet alle werknemers se dienskontrakte oorneem en geen werknemer mag tydens die oordragsituasie ontslaan word nie. Die gewysigde Insolvensiewet bevorder die konsep van besigheidsredding (“business rescue”). Kurators en trustees van insolvente ondernemings word aangemoedig om besighede as lopende ondernemings te verkoop. Ingevolge arbeidsregbeginsels word kopers van insolvente besighede egter verplig om alle dienskontrakte oor te neem. Hierdie alles-of-niks beginsel hou egter die moontlikheid in dat kurators en trustees eerder die opskortingstydperk van dienskontrakte sal laat uitloop, met gevolg dat alle dienskontrakte deur regswerking ingevolge die Insolvensiewet beëindig sal word. Hierdie toedrag van sake kan negatiewe gevolge inhou. Die onlangse Arbeidsappèlhofsaak, SA Municipal Workers Union v Rand Airport Management Co (Pty) Ltd, bevestig dat beide verkopers en kopers van lopende ondernemings uiters versigtig moet wees om enige dienskontrakte voor of na sodanige oordrag weens operasionele redes te beëindig. Daar word in hierdie bydrae geargumenteer dat hierdie beskermingsmaatreëls uiteindelik tot werknemers se nadeel sal strek, aangesien werkgewers eerder werknemers weens finansiële redes sal afdank as om die moontlikheid te ondersoek om besighede in die geheel of gedeeltelik as lopende ondernemings te verkoop.http://www.dejure.up.ac.zaam2016Mercantile La

Representation during arbitration hearings : spotlight on members of bargaining councils

South Africa does not stand alone in its quest to establish informal, expeditious and affordable labour tribunals. Furthermore, there is no ideal "one model fits all" policy on the international front in relation to the presence or absence of legal representation before labour tribunals to attain these goals. Great Britain has not implemented any limitations regarding the right to be legally represented during the arbitration of labour disputes. In contrast, Australia is an example of a country where steps have recently been implemented to restrict legal representation during the arbitration of labour disputes to reach these goals. South Africa implemented limitations pertaining to legal representation more than fifteen years ago. Despite the relatively long passage of time, it seems that the ideals pertaining to specialist labour dispute resolution institutions remain as relevant now as they were then. In 2009 the labour appeal court considered whether South Africa's limitations pertaining to legal representation conform to the provisions of the bill of rights (the Netherburn Engineering case). The court held that there are no problems regarding the limitation of legal representation during conduct and capacity arbitrations, while, at the same time, the CCMA is striving to perform its functions in a non-legalistic and informal fashion (2009 ILJ 269 (LAC) par 44). Even though arbitrations before the CCMA do not fall under the ambit of the Promotion of Administrative Justice Act (the Sidumo case), it is informative that this piece of legislation that gives expression to section 33 of the constitution (preamble to the Promotion of Administrative Justice Act) also provides administrators with the discretion to determine whether representatives should be permitted or not.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=364

The right to a pre-dismissal hearing in terms of the common law : are the civil courts misdirected?

This article explores the overlap between the unlawful termination of a contract of employment and the unfair dismissal of an employee. The Supreme Court of Appeal has in a sequence of cases developed the common-law contract of employment to include the implied right to a pre-dismissal hearing. Owing to the fact that labour legislation already regulates unfair dismissal law, this in effect creates a dual system of dispute resolution in relation to the termination of contracts of employment. The focus of this contribution is on the factors that allure dismissed employees to the civil courts and it highlights the problems that are associated with the overlap of the High Court’s and the Labour Court’s jurisdictions. Future developments are traversed and the Constitutional Court is called upon to bring an end to the development of parallel dispute resolution systems in respect of dismissal disputes.http://www.journals.co.za/content/journalam2016Mercantile La

Misuse of the Internet at the workplace

Five female employees are dismissed for misuse of e-mail at the workplace. One is dismissed on the ground of abusing her employer's e-mail policy by distributing religious and motivational material and the other four are dismissed for sending out pornographic material on the first day of spring, in the form of a bouquet of penises. This is only one example of the numerous sensational incidents that have been reported of late in the media relating to the misuse of e-mail and the internet at the workplace (Herman "Misbruik jou Personeel Internet en E-pos?" Finansies en Tegniek 2000-6-23 30, Business Editor "Cyber Loafing new Employee Problem" Eastern Province Herald 2000-10-9 6, Ord "Could you be a Cyber Loafer?" Daily News 2000-10-12 10, Anstey "Women fired for e-mailing 'porn"' Sunday Times 2001-01-21 25, Swanepoel and Van der Westhuizen "Kuberpret kan Werkgewers Miljoene Kos" Beeld 2001-01-25 13, Rickard and Anstey "'Naughty' e-mail now a hot legal Issue" Sunday Times 2001-01-28 30).http://www.dejure.up.ac.za/am2016Mercantile La

The constitutionalisation of labour law : no place for a superior Labour Appeal Court in labour matters (part 1) : background to South African labour courts and the constitution

This article explores the status of the Labour Appeal Court under South Africa's constitutional democracy. The stages of development of this country's labour laws have coincided with the establishment of new sets of labour dispute resolution fora : firstly, the Industrial Court; secondly, the labour courts under our present constitutional democracy; and thirdly, a yet to be implemented new dispute resolution paradigm under the proposed Superior Courts Bill. The focus of this contribution is on the influence of the provisions of the Constitution on these developments, and the gradual erosion of the exclusive appellate powers of the Labour Appeal Court by the Supreme Court of Appeal, and the Constitutional Court, in the assertion of their power to serve as highest courts in all labour matters.http://www.journals.co.za/content/journalam2016Mercantile La

The Unemployment Insurance Bill : a relic of the past?

No abstract available.http://www.journals.co.za/content/journalam2016Mercantile La