scholarly journals THE CONSTITUTIONAL DUTY TO ENGAGE IN COLLECTIVE BARGAINING

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Angela Patricia Molusi
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Case Law ◽  
Labour Relations ◽  
The Law

The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act (LRA) refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism (SANDU v Minister of Defence 2003 3 SA 239 (T) I; SANDU v Minister of Defence 2004 4 SA 10 (T) II; and Minister of Defence v SANDU 2007 1 SA 422 (SCA) III (hereafter “SANDU I, II and III”)). These cases are relevant in terms of the courts’ interpretation of collective bargaining as a duty or freedom. They are currently the main cases dealing with this issue in South Africa. This has created doubt as to whether the distinction provides an acceptable basis to use the terms interchangeably, both by the courts as well as those involved in collective bargaining. The purpose of this paper is firstly to sketch the landscape of South Africa’scollective bargaining jurisprudence, touching on the current legislation and secondly to give an overview of why collective bargaining is a necessary tool to balance power in the workplace. I shall examine the discourse as to whether the term “collective bargaining” creates a duty to participate (which can mean compelled) in collective bargaining on the part of the employer, as opposed to a right to engage in collective bargaining (which is voluntary). Lastly, the author will attempt to show the thread of how the courts have answered the question in case law.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

scholarly journals An Employer's Recourse to Lock-Out and Replacement Labour: An Evaluation of Recent Case Law

2017 ◽  
Vol 20 ◽  
pp. 1-31
Author(s):  
Monray Marsellus Botha ◽  
Motsoane Lephoto
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
South African ◽  
Industrial Relations ◽  
Case Law ◽  
Recent Case ◽  
Economic Power ◽  
Rights And Interests ◽  
State Of Affairs

South African labour affairs are in a volatile state. Conflicting rights and interests as well as the balancing of these rights and interests are contributing to this state of affairs. In recent years, the contentious issues of workers' right to use their economic power to put pressure on employers and employers' recourse to lock-out and replacement labour have come under the spotlight again. Prolonged, violent and unprotected strikes have raised the question whether our industrial relations framework should be revisited, and have complicated matters even further. The question whether employers may use replacement labour and have recourse to lock-outs when an impasse exists during wage negotiations has come to the fore again and is evaluated in the context of the adversarial collective bargaining framework in South Africa.      

scholarly journals The Right to Strike under the Labour Relations Act 66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA

2019 ◽  
Vol 22 ◽  
pp. 1-39
Author(s):  
Darren Cavell Subramanien ◽  
Judell L Joseph
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Employment Relationship ◽  
Labour Relations ◽  
Civil Unrest ◽  
Playing Field ◽  
Strict Interpretation ◽  
Action Collective ◽  
The Right ◽  
Do So

The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining.    

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

2021 ◽  
Vol 33 (2) ◽  
pp. 238-259
Author(s):  
Chuks Okpaluba ◽  
Tumo Charles Maloka
Keyword(s):  
South African ◽  
Case Law ◽  
Rugby Union ◽  
Department Of Education ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
The Law ◽  
Bear Witness

Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.

scholarly journals THE TAXONOMY OF AN “UNSPECIFIED” GROUND IN DISCRIMINATION LAW

Obiter ◽  
2014 ◽  
Vol 35 (1) ◽  
Author(s):  
Marié McGregor ◽  
Wilhelmina Germishuys
Keyword(s):  
South Africa ◽  
Case Law ◽  
Employment Equity ◽  
Labour Relations ◽  
The Republic ◽  
Primary Focus

This note will look into cases which have dealt with “unspecified” (or “analogous”) grounds in terms of which direct and indirect unfair discrimination are prohibited by the Constitution of the Republic of South Africa, 1996 (the “Constitution”), the Employment Equity Act 55 of 1998 (“EEA”) and the Labour Relations Act 66 of 1995 (“LRA”). The primary focus is on the classification of “unspecified” grounds in case law by briefly discussing and evaluating the correctness of these decisions.The secondary focus is on the possible expansion of these grounds (with only basic arguments set out).

scholarly journals The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3

2017 ◽  
Vol 17 (1) ◽  
pp. 612
Author(s):  
Shamier Ebrahim
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Bargaining Process ◽  
Stare Decisis ◽  
Labour Relations ◽  
Appeal Court ◽  
Labour Practice ◽  
Northern Cape ◽  
The Right ◽  
Term Benefit

The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action). In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5] It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon. Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA. 

scholarly journals Comparative Discrimination Law: Age as a Protected Ground

2018 ◽  
Vol 2 (1) ◽  
pp. 1-99
Author(s):  
Lucy Vickers
Keyword(s):  
South Africa ◽  
Social Justice ◽  
Labour Market ◽  
Case Law ◽  
Age Discrimination ◽  
Individual Identity ◽  
The Social ◽  
Comparative Review ◽  
Market Driven ◽  
The Law

AbstractThis comparative review of age as a protected ground in discrimination law explores the underpinning questions and themes related to two main dimensions of age discrimination. The first dimension is structural, economic and labour market driven, whereby age is used to allocate a range of rights, obligations and benefits within society. The second is the social justice and equality dimension, in which age is understood as an aspect of individual identity that is worthy of protection against indignity or detriment. The review then considers the law on age discrimination in a number of jurisdictions, the EU law, the UK, Sweden, USA, Canada and South Africa, and assesses the extent to which the underpinning questions explain the developing case law.

scholarly journals The Role of the Labour Court in Collective Bargaining: Altering the Protected Status of Strikes on Grounds of Violence in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC)

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Legal Status ◽  
National Union ◽  
Labour Relations ◽  
The Status ◽  
Legal Test ◽  
Positive Effect

This note explores the powers of the Labour Court as envisaged in the Labour Relations Act 66 of 1995 (LRA), where a protected strike disintegrates into violent riotous conduct. The legal status of protected strikes raises important questions of law, namely: whether the Labour Court has the authority to alter the legal status of a strike; the autonomy of collective bargaining; and the legal test which the Labour Court should apply when intervening. The court in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd 2016 37 ILJ 476 (LC) dealt with this precise problem. There can be no doubt that South Africa is plagued by widespread strike violence which often occur during protected strikes. However, this contribution poses the question whether the Labour Court has not overstepped its mandated jurisdiction and it questions whether such alterations of the status of strikes would have a positive effect on the institution of collective bargaining.      

scholarly journals On the Possibility of a Supranational Collective Bargaining of Labour Relations within the BRICS Countries (The Experience of China, India and South Africa)

2018 ◽  
Vol 7 (3.14) ◽  
pp. 305
Author(s):  
Evgenia Evgenevna Frolova ◽  
Ksenia Mikhailovna Belikova ◽  
Natalia Vladimirovna Badaeva
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Labor Relations ◽  
Transnational Corporations ◽  
Organization Management ◽  
Labor Contract ◽  
Labour Relations ◽  
Brics Countries ◽  
Effective System ◽  
Near Future

The development of transnational corporations (TNC) raises the question of an effective system of organization management, in particular, in countries - members of the BRICS. The results of the study showed the use of a collective labor contract in organizations in India, China, South Africa is not widespread. Regulation of social and labor relations is limited to national features, mentality, traditions. For example, in China workers, due to the prevailing attitude and philosophy, do not seek to use a collective labor contract to regulate the relations with the employer. Based on a number of reasons shown in the article, the authors consider that most probably no major changes related to the regulation of labor relations in these countries will occur in the near future.  

Sign in / Sign up

Export Citation Format

Share Document