At the beginning of 2015 the Labour Relations Act (LRA) was amended to provide significantly impr... 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...
The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African wo... 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 ...
International Journal of Comparative Labour Law and Industrial Relations
South Africa's recently enacted Companies Act introduces a new corporate rescue mechanism kno... 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.
Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘d... 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.
Uber is a mode of transportation that undermines the established taxi industry in major cities. G... 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.
Since the inception of the Labour Courts in 1996 there have been problems regarding the alignment... 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
The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African wo... 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.
This chapter analyses the employer’s failure to renew a fixed-term contract of employment in
So... 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).
The world of work is changing rapidly. The globalisation of economies and brisk technological cha... 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.
The majority of migrant workers target those countries in southern Africa that have stronger econ... 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...
South Africa does not stand alone in its quest to establish informal, expeditious and affordable ... 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 ...
In order to address social inequalities that may have resulted from past discrimination, some nat... 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...
This article sets out to analyse the extent of an employer's right to make deductions from an... 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.
At the beginning of 2015 the Labour Relations Act (LRA) was amended to provide significantly impr... 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...
The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African wo... 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 ...
International Journal of Comparative Labour Law and Industrial Relations
South Africa's recently enacted Companies Act introduces a new corporate rescue mechanism kno... 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.
Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘d... 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.
Uber is a mode of transportation that undermines the established taxi industry in major cities. G... 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.
Since the inception of the Labour Courts in 1996 there have been problems regarding the alignment... 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
The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African wo... 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.
This chapter analyses the employer’s failure to renew a fixed-term contract of employment in
So... 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).
The world of work is changing rapidly. The globalisation of economies and brisk technological cha... 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.
The majority of migrant workers target those countries in southern Africa that have stronger econ... 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...
South Africa does not stand alone in its quest to establish informal, expeditious and affordable ... 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 ...
In order to address social inequalities that may have resulted from past discrimination, some nat... 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...
This article sets out to analyse the extent of an employer's right to make deductions from an... 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.
Uploads
Papers by Stefan Van Eck
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).