Stefan Van Eck
University of Pretoria, Mercantile Law, Faculty Member
At the beginning of 2015 the Labour Relations Act (LRA) was amended to provide significantly improved protection to workers engaged in ‘non-standard work’. This term covers workers engaged in agency work, fixed-term contracts and... more
At the beginning of 2015 the Labour Relations Act (LRA) was amended to provide significantly improved protection to workers engaged in ‘non-standard work’. This term covers workers engaged in agency work, fixed-term contracts and part-time employment. The focus of this contribution is on ‘employment agencies’ which constitute a significant proportion of the South African labour market. There are differing views on the exact number of agency workers and the effects of the recent legislative amendments in South Africa. So for example, one of the country’s largest providers of agency workers, Adcorp, states that:‘Labour broking is the fastest-growing sector of the South African labour market. According to the Adcorp Employment Index for May labour brokers constitute a R44 billion industry employing around 19 500 internal staff and just over one million agency workers or temps in South Africa. Agency work now constitutes 7.5% of total employment in South Africa, and it is likely to grow...
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The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African workplaces. It had a significant impact on public and private life in South Africa and harsh rules were imposed that severely restricted social... more
The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African workplaces. It had a significant impact on public and private life in South Africa and harsh rules were imposed that severely restricted social gatherings and other economic activities. Employers and employees grappled with issues like compulsory vaccinations, social distancing and the implementation of workplace policies at the workplace. The repercussions of the COVID-19 limitations are still being experienced after the lifting of the state of disaster. Among the issues are a troublesome economic downturn, significant job losses and a struggle to convince workers to return to workplaces. The Constitution, 1996 establishes a human rights-centred backdrop against which the picture of the pandemic is unfolding. Added to this, South Africa has a range of legislative instruments that regulate aspects like unfair dismissal and collective bargaining at workplaces. This placed South Africa in a ...
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South Africa's recently enacted Companies Act introduces a new corporate rescue mechanism known as 'business rescue'. One of the aims of corporate rescue is the resuscitation or reorganization of companies in financial... more
South Africa's recently enacted Companies Act introduces a new corporate rescue mechanism known as 'business rescue'. One of the aims of corporate rescue is the resuscitation or reorganization of companies in financial distress. The legal disciplines of labour, insolvency, and corporate law interact during business rescue proceedings. In this contribution, the question is posed whether an appropriate balance has been struck between employees' and creditors' interests in this new corporate rescue mechanism. The investigation is conducted against the background of International Labour Organization (ILO) and European Union (EU) standards and South Africa's labour, insolvency, and corporate law frameworks. The conclusion is drawn that the potential success that this rescue mechanism has to offer could be weakened due to provisions that result in the over-protection of employees.
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Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘deemed’ provisions of employment to assist in the identification of the parties to triangular employment relationships. This article explores... more
Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘deemed’ provisions of employment to assist in the identification of the parties to triangular employment relationships. This article explores the significance of statutory interpretation in identifying the parties to the employment relationship and the approach of the judiciary in interpreting the term ‘deemed’. The ‘teleological model’ of statutory interpretation is described and the interpretive approach of the Labour Appeal Court is assessed against this model. Teleological interpretation requires that legislative provisions be interpreted to advance their purpose in light of constitutional values. The interpretation that best advances constitutional values must be preferred. In determining such a constitutionally appropriate meaning of the provision, the courts must also have regard to the textual, contextual, teleological, historical, and comparative elements in which the provision occurs. In a recent decision, the Labour Appeal Court failed to consider key constitutional values, the history of the legislative provision, and the comparative law dimension in which the relevant legislative provision is found. The court made little attempt to understand the historical circumstances that led to the adoption of the statutory provision and considered no comparative experience.
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Uber is a mode of transportation that undermines the established taxi industry in major cities. Governments apply different measures to regulate Uber. For example, Germany, Spain and China have banned it, and in the United States of... more
Uber is a mode of transportation that undermines the established taxi industry in major cities. Governments apply different measures to regulate Uber. For example, Germany, Spain and China have banned it, and in the United States of America and in England, the courts have referred to as Uber drivers as employees. In South Africa, the Commission for Conciliation, , Mediation and Arbitration initially considered them as employees, but in Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers, the Labor Court ruled that they are not employees of Uber SA. This contribution questions the Labor Court's approach. From a constitutional perspective, the court should have considered international norms. It would also have made sense to support the definition of employer in terms of section 200B of the Labor Relations Act. A broader constitutional approach should have been followed by rather relying on the employment relationship than the existence of a traditional contract of employment.
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Since the inception of the Labour Courts in 1996 there have been problems regarding the alignment of South Africa’s labour dispute resolution institutions and the civil High Courts. The drafters of the post-constitutional Labour Relations... more
Since the inception of the Labour Courts in 1996 there have been problems regarding the alignment of South Africa’s labour dispute resolution institutions and the civil High Courts. The drafters of the post-constitutional Labour Relations Act (LRA) had the goal of instituting the ‘Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act’. As part of the plan, the Labour Appeal Court (LAC) was envisioned to be the court of final appeal in respect of appeals from the Labour Court. After the establishment of the Labour Courts it became apparent that the LRA and the Constitution 1996 were misaligned regarding the status of the LAC as the apex court in respect of labour disputes. The drafters of the LRA did not take into account the hierarchy of courts intended by the Constitution when considering the status of the LAC vis-à-vis that of the Supreme Court of Appeal (SCA). A turf war ensued between the
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The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African workplaces. It had a significant impact on public and private life in South Africa and harsh rules were imposed that severely restricted social... more
The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African workplaces. It had a significant impact on public and private life in South Africa and harsh rules were imposed that severely restricted social gatherings and other economic activities. Employers and employees grappled with issues like compulsory vaccinations, social distancing and the implementation of workplace policies at the workplace. The repercussions of the COVID-19 limitations are still being experienced after the lifting of the state of disaster. Among the issues are a troublesome economic downturn, significant job losses and a struggle to convince workers to return to workplaces. The Constitution, 1996 establishes a human rights-centred backdrop against which the picture of the pandemic is unfolding. Added to this, South Africa has a range of legislative instruments that regulate aspects like unfair dismissal and collective bargaining at workplaces. This placed South Africa in a position to regulate the COVID-19 pandemic in society at large, and workplaces in particular. A collection of the tribunal and court decisions regarding COVID-19 at the workplace have wound their way through the dispute resolution institutions. This contribution navigates relevant aspects of the Constitution as well as disaster management and labour legislation before reflecting on a selection of jurisprudence. The authors argue that there are important lessons to be gained from these early cases. Nonetheless, there are also unanswered questions of a constitutional nature that still need to be finalised. They also voice suggestions in the conclusion that may be of assistance to employers, employees, academics, and policymakers alike-that would also apply should future pandemics pester the South African society.
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This chapter analyses the employer’s failure to renew a fixed-term contract of employment in South Africa when there is a reasonable expectation of renewal, and the remedies available for the failure to renew. The employment of... more
This chapter analyses the employer’s failure to renew a fixed-term contract of employment in
South Africa when there is a reasonable expectation of renewal, and the remedies available
for the failure to renew. The employment of workers using fixed-term contracts is one of the
dominant means of informalising work and is characterised by uncertainty. It therefore is
essential that alternative ways of regulating and addressing the concerns of these vulnerable
workers are found. Regulating non-standard work and protecting vulnerable workers cannot
be left entirely up to collective bargaining and trade unions to resolve. The South African
Constitution, the doctrine of legitimate expectation and other legislative instruments are all
relevant in ensuring that informal workers are protected. The article specifically examines
the relevant provisions of the South African Constitution that may be used to protect
non-standard workers: section 9 (the right to equality); section 23 (the right to fair labour
practices); and section 39 (the interpretation of the Bill of Rights).
South Africa when there is a reasonable expectation of renewal, and the remedies available
for the failure to renew. The employment of workers using fixed-term contracts is one of the
dominant means of informalising work and is characterised by uncertainty. It therefore is
essential that alternative ways of regulating and addressing the concerns of these vulnerable
workers are found. Regulating non-standard work and protecting vulnerable workers cannot
be left entirely up to collective bargaining and trade unions to resolve. The South African
Constitution, the doctrine of legitimate expectation and other legislative instruments are all
relevant in ensuring that informal workers are protected. The article specifically examines
the relevant provisions of the South African Constitution that may be used to protect
non-standard workers: section 9 (the right to equality); section 23 (the right to fair labour
practices); and section 39 (the interpretation of the Bill of Rights).
The world of work is changing rapidly. The globalisation of economies and brisk technological changes severely impact all nations. These changes have had a significant impact on traditional employer-employee relations. Labour and social... more
The world of work is changing rapidly. The globalisation of economies and brisk technological changes severely impact all nations. These changes have had a significant impact on traditional employer-employee relations. Labour and social security protection for workers are being eroded through informalisation, casualisation and externalisation. Added to this, new forms of platform work have been established during the fourth industrial revolution that have had a disruptive effect on the notion of secure and indefinite employment. Collective bargaining and trade unions have in the past played an important role in protecting workers’ rights. This contribution interrogates the role of trade unions and collective bargaining in the changed world of work and considers strategies that they should consider implementing. The article concludes by suggesting that the solution to problems associated with non-standard and platform work may not lie in the bargaining power of trade unions. Governments will have to step in to fill the gaps in order to protect persons involved in new forms of work.
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The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons... more
The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. It traverses the international, continental and regional instruments providing protection to irregular migrants, and considers the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa. The article concludes by recommending that the broader notion of “social protection”, rather than the narrower concept of “social security”, should be emphasized. Job creation programmes are essential. It suggests that the advantages of the free movement of people in the region should be explored and encouraged. The article also supports the notion that a regional policy that seeks to balance the flow of migrants in the Southern African Development Community sho...
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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... more
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 ...
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In order to address social inequalities that may have resulted from past discrimination, some nations adopt policies that promote the implementation of affirmative action measures, in respect of categories such as race, gender and... more
In order to address social inequalities that may have resulted from past discrimination, some nations adopt policies that promote the implementation of affirmative action measures, in respect of categories such as race, gender and disability. The content and degree of compulsion in respect of these measures differ from country to country as these remedial policies are generally interlinked with the relevant nation’s socio-economic and political background. On the supranational level, overarching conventions and treaties express the sentiment that all people should be treated equally. In addition to the prohibition against unfair discrimination, these instruments generally provide sufficient breathing space for affirmative action to be taken to reverse institutionalised inequality. Examples of such instruments include the ILO Discrimination (Employment and Occupation) Convention of 1958 (no 111), the International Convention on the Elimination of all forms of Racial Discrimination ad...
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This article sets out to analyse the extent of an employer's right to make deductions from an employee's remuneration, to pinpoint the problematic phrases contained in section 34 of the Basic Conditions of Employment Act 75 of... more
This article sets out to analyse the extent of an employer's right to make deductions from an employee's remuneration, to pinpoint the problematic phrases contained in section 34 of the Basic Conditions of Employment Act 75 of 1997 and to recommend how the courts should interpret the section pending the suggested future amendment thereof.
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The Southern African Development Community (SADC) motto in their coat of arms reads "Towards a Common Future" Article 5 of the SADC Treaty spells out one of the main objectives of the SADC namely to promote sustainable and... more
The Southern African Development Community (SADC) motto in their coat of arms reads "Towards a Common Future" Article 5 of the SADC Treaty spells out one of the main objectives of the SADC namely to promote sustainable and equitable economic growth and socio-economic development through deeper cooperation and integration.
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... more
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 lIgforal/Ig : 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.
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The article is based on an article presented at the inaugural Labour Law Research Network conference, held on 13–15 Jun. 2013, Barcelona, Spain.
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The collective bargaining framework in South Africa as set out in the Labour Relations Act 66 of 1995 is based on the principle of 'majoritarianism'. Notwithstanding the premise of our legal system, minority trade unions have an... more
The collective bargaining framework in South Africa as set out in the Labour Relations Act 66 of 1995 is based on the principle of 'majoritarianism'. Notwithstanding the premise of our legal system, minority trade unions have an important role to play in advancing workers' rights and have turned to the courts for an endorsement of these rights. In this respect, there are three significant Constitutional Court decisions that form the foundation of this article. The key focus is on exploring the extent to which these judgments advance such rights and, particularly, whether and to what extent the Constitutional Court has developed coherent and consistent principles relative to the rights of minority trade unions.
South Africa’s existing social security and labour law framework is inadequate to protect employees in the formal sector during the Covid-19 lockdown. However, commendable temporary income replacement measures have been introduced to... more
South Africa’s existing social security and labour law framework is inadequate to protect employees in the formal sector during the Covid-19 lockdown. However, commendable temporary income replacement measures have been introduced to counter this situation. Nevertheless, South Africa’s biggest shortcoming lies in the lack of protection for its considerable informal sector. Government did not respond adequately. When informal sector workers don’t work, they remain hungry.
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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... more
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 bargai...
This article explores the concept of the automatic unfair dismissal that is regulated in s 187(1)(c) of the Labour Relations Act, where the reason for the dismissal is to "compel the employee to accept a demand in respect of any... more
This article explores the concept of the automatic unfair dismissal that is regulated in s 187(1)(c) of the Labour Relations Act, where the reason for the dismissal is to "compel the employee to accept a demand in respect of any matter of mutual interest". This provision raised important questions of law, as it brought to the fore the conflict that existed between this provision and sections 188(1)(a)(ii) and 189 of the LRA, which permits dismissals for operational requirements. This dichotomy was dealt with by the court in Fry's Metals, but the decision was controversial and faced criticism. The decision of the court was consequently rendered incorrect, resulting in the amendment to s 187(1)(c), which now reads that a dismissal is automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. However, it is doubtful whether the amended provision provides a s...
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South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South... more
South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, an...
South African labour legislation provides a wide range of legal protection to employees who are subject to dismissal, requiring that certain thresholds of fairness be met. Prior to the current legislative scheme, however, employees were... more
South African labour legislation provides a wide range of legal protection to employees who are subject to dismissal, requiring that certain thresholds of fairness be met. Prior to the current legislative scheme, however, employees were employed on terms contained in their contracts of employment in accordance with which they could be dismissed for any reason, including instances where they were not at fault (so-called ‘no-fault’ dismissals). The law neither provided safeguards nor stipulated procedures to be followed for such dismissals. In some cases, the threat of dismissal of this kind could even be used as a tool to coerce employees to accept amended and often worse conditions of employment. However, in the early 1980s the Industrial Court, relying on its newly enacted unfair labour practice jurisdiction, forged a new labour jurisprudence which was a departure from the employer-biased, contract-centric approach under the common law, to a scheme that eventually would require justifications to be tendered and fair procedures followed in order for dismissals to be fair. Central to these developments were various International Labour Organization labour standards on termination of employment which influenced the courts’ rationalisation of the dismissal, culminating in the codification of these considerations in the Labour Relations Act 66 of 1995. This chapter posits that the Industrial Court’s regard for said standards resulted in the once-autocratic employer being brought to heel in order to rationalise its decisions and to engage employees before making a final determination regarding their employment, thus democratising the process. Equally, it is further argued that the reform of this dismissal regime would not have materialised had the Industrial Court not had regard for international law, in general, and ILO international labour standards, in particular.
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Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘deemed’ provisions of employment to assist in the identification of the parties to triangular employment relationships. This article explores... more
Recent legislative amendments to the Labour Relations Act 66 of
1995 have introduced so-called ‘deemed’ provisions of employment
to assist in the identification of the parties to triangular
employment relationships. This article explores the significance of
statutory interpretation in identifying the parties to the
employment relationship and the approach of the judiciary in
interpreting the term ‘deemed’. The ‘teleological model’ of statutory
interpretation is described and the interpretive approach of the
Labour Appeal Court is assessed against this model. Teleological
interpretation requires that legislative provisions be interpreted to
advance their purpose in light of constitutional values. The
interpretation that best advances constitutional values must be
preferred. In determining such a constitutionally appropriate
meaning of the provision, the courts must also have regard to the
textual, contextual, teleological, historical, and comparative
elements in which the provision occurs. In a recent decision, the
Labour Appeal Court failed to consider key constitutional values,
the history of the legislative provision, and the comparative law
dimension in which the relevant legislative provision is found. The
court made little attempt to understand the historical circumstances
that led to the adoption of the statutory provision and considered
no comparative experience.
1995 have introduced so-called ‘deemed’ provisions of employment
to assist in the identification of the parties to triangular
employment relationships. This article explores the significance of
statutory interpretation in identifying the parties to the
employment relationship and the approach of the judiciary in
interpreting the term ‘deemed’. The ‘teleological model’ of statutory
interpretation is described and the interpretive approach of the
Labour Appeal Court is assessed against this model. Teleological
interpretation requires that legislative provisions be interpreted to
advance their purpose in light of constitutional values. The
interpretation that best advances constitutional values must be
preferred. In determining such a constitutionally appropriate
meaning of the provision, the courts must also have regard to the
textual, contextual, teleological, historical, and comparative
elements in which the provision occurs. In a recent decision, the
Labour Appeal Court failed to consider key constitutional values,
the history of the legislative provision, and the comparative law
dimension in which the relevant legislative provision is found. The
court made little attempt to understand the historical circumstances
that led to the adoption of the statutory provision and considered
no comparative experience.
Research Interests:
This contribution appears short on the heels of the enactment of amendments to the Basic Conditions of Employment Act and the Labour Relations Act, as well as the phased introduction of the historic National Minimum Wage Act. All of these... more
This contribution appears short on the heels of the enactment of amendments to the Basic Conditions of Employment Act and the Labour Relations Act, as well as the phased introduction of the historic National Minimum Wage Act. All of these legislative measures came into effect on 1 January 2019. In a timely development, amendments to the Rules for the Conduct of Proceedings before the CCMA have also been published that came into effect on the same day. The latest amendments leave most of the CCMA rules intact in their present form. The amendments aim to weed out past problems, to align the CCMA rules with the latest amendments to labour legislation, and to streamline and expedite CCMA processes. The aim of this contribution is to analyse most, but not all, of the significant amendments and to assess where the drafters of the amendments were on target and where they missed out on opportunities to improve the functioning of the CCMA.
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"Uber" is a mode of transportation that undermines the established taxi industry in major cities. Governments apply different measures to regulate Uber. For example, Germany, Spain and China have banned it, and in the United States of... more
"Uber" is a mode of transportation that undermines the established taxi industry in major cities. Governments apply different measures to regulate Uber. For example, Germany, Spain and China have banned it, and in the United States of America and in England, the courts have referred to as Uber drivers as employees". In South Africa, the Commission for Conciliation, , Mediation and Arbitration initially considered them as employees, but in Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers, the Labor Court ruled that they are not employees of Uber SA. This contribution questions the Labor Court's approach. From a constitutional perspective, the court should have considered international norms. It would also have made sense to support the definition of "employer" in terms of section 200B of the Labor Relations Act. A broader constitutional approach should have been followed by rather relying on the employment relationship than the existence of a traditional contract of employment.
Research Interests:
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... more
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. Keywords Authority of the labour court; collective bargaining; powers of the labour court; protected strikes; unprotected strikes; violent strikes.
Research Interests: Labour Law and Strikes
In what is predicted to be a significant decision regarding the right to strike and the required levels of representativeness of trade unions, the Constitutional Court in Association of Mineworkers and Construction Union v Chamber of... more
In what is predicted to be a significant decision regarding the right to strike and the required levels of representativeness of trade unions, the Constitutional Court in Association of Mineworkers and Construction Union v Chamber of Mines (2017) 38 ILJ 831 has held, based on the literal interpretation of the definition of ‘workplace’ and under the banner of ‘majoritarianism’, that minority trade unions do not have the right to strike where the dominant unions have concluded a collective agreement that limits that right. This contribution questions the correctness of this decision.
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OPSOMMING Eise teen werknemers: Vertolking en toepassing van artikel 34 van die Wet op Basiese Diensvoorwaardes 75 van 1997 Arbeidsreg het ten doel om meer gelyke balans tussen werkgewers en werknemers te skep. Die Wet op... more
OPSOMMING Eise teen werknemers: Vertolking en toepassing van artikel 34 van die Wet op Basiese Diensvoorwaardes 75 van 1997 Arbeidsreg het ten doel om meer gelyke balans tussen werkgewers en werknemers te skep. Die Wet op Arbeidsverhoudinge 66 van 1995 bied byvoorbeeld beskerming aan werknemers, synde die swakker belangegroep, teen onbillike ontslag en dit maak ook vir omvangryke vakbondregte voorsiening. Die Wet op Basiese Diensvoorwaardes 75 van 1997 skryf insgelyks beskermingsmaatreëls ten opsigte van diensvoorwaardes voor. Die vraag kan met reg gestel word of werkgewers teen hierdie agtergrond enigsins geregtig is om aftrekkings van werknemers se vergoeding te maak. Artikel 34 van die Wet op Basiese Diensvoorwaardes reguleer werkgewers se reg om aftrekkings van werk-nemer se vergoeding te maak ten einde gelede skade te verhaal. Artikel 34 verskaf ener-syds aan werkgewers spoedige meganisme om vergoed te word sonder om te litigeer, maar dit bied andersyds beskerming aan werknemers deur formaliteite, prosedures en kwantum voor te skryf. In hierdie bydrae word artikel 34 ontleed en probleemgebiede rakende aftrekkings word uitgewys. Aanbevelings word voorts gemaak oor hoe die howe die bepaling behoort te vertolk tot tyd-en-wyl voorgestelde wysiging aan die artikel aangebring word.