Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.

The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.

In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.

This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.

Made available in DSpace on 2017-06-01T18:18:00Z (GMT). No. of bitstreams: 1 dissertacao_maria_glauce.pdf: 825457 bytes, checksum: 8fe91506d7ed000e1d9f47636823d681 (MD5) Previous issue date: 2009-08-13 / This work aims to study Labor Law from a principles-logic based vision, where the fundamental principles of the constitutional process are examined in a focused vision of Labor Law, considering the peculiarities of Labor Law and its impact on employment practices, particularly in view of the principle of protection that, in this study, as part of a larger principle, the principle of compensation, positions the parties in the complex obligatory employment arrangement. It makes a systematic analysis of Labor Law, considering concepts of general Law theory, Constitutional Law, Labor Law, Civil Procedural Law and Procedural Labor Law. Following the establishment of this premise based on lessons from General Law Theory and the development of ideas related to, and from a systematic interpretation of Positivist Rights, it performs an analysis of legal norms, and labor practice with emphasis on the principles. The study based on general concepts, through constitutional analysis, legal and doctrinal matters, including a more pragmatic viewpoint, gives finally, its conclusions on the theme: Labor Law from a principles-logic based vision, the Federal Constititution and the principle of compensation in the complex obligatory employment arrangement / O presente trabalho tem por objeto o estudo do Processo do Trabalho numa visão principiológica, onde são examinados princípios fundamentais constitucionais do processo numa visão focada para o Processo do Trabalho, considerando as peculiaridades próprias existentes no Direito do Trabalho e suas repercussões na prática trabalhista, sobretudo em face do princípio da proteção que, neste trabalho, consta como vertente de um princípio maior que é o princípio da compensação da posição debitória complexa das partes no vínculo laboral. Na sua elaboração, efetua-se uma análise sistemática do Direito, considerando-se conceitos relativos à Teoria Geral do Direito, ao Direito Constitucional, ao Direito do Trabalho, ao Direito Processual Civil e ao Direito Processual do Trabalho. Após o estabelecimento das premissas sempre calcadas nas lições de Teoria Geral do Direito e com o desenvolvimento das idéias ligadas a uma interpretação sistemática do Direito Positivo, efetua-se uma análise das normas jurídicas, com ênfase para os princípios, verificando-se, inclusive, a prática trabalhista. Assim, o estudo parte de conceitos gerais, passando por uma análise constitucional, legal e doutrinária da matéria, incluindo um estudo mais pragmático, apresentando, enfim, suas conclusões sobre o tema: O Processo do Trabalho numa visão principiológica: Da Constituição Federal à Compensação da Posição Debitória Complexa das partes no Vínculo Laboral

The Master’s Thesis analyses the employing of the foreigners in the Czech republic. It focuses on the interposition of the job opportunities for the incoming foreign students at Brno University of Technology. It tries to find out the attitude of the foreigners to this theme and upon the analysis of the current situation it brings the suggestions for the extensions of the activities of the International Students Club with the view of improving the relationship between BUT and the foreign students.

This diploma thesis provides the legal regulation of termination of employment by agreement in the Czech Republic. This diploma thesis focuses on the definition of the basic concepts of civil and labor law in the Czech Republic, which are related to the legal institute of Mutual agreement of termination of employment and interprets the fundamental judicial decisions of the Czech case law concerning the subject of this diploma thesis. This diploma thesis also analyses the comparison of the Czech legislation and the legislation of Great Britain. Název práce v anglickém jazyce The termination of employment by agreement Klíčová slova v anglickém jazyce (key words) Employment law, Employment relationship, Termination of employment by agreement

Job status and salary inequities between men and women have only recently been documented (Kravetz 1976). The federal government, over the past few decades, through various acts and executive orders, has created legislation to prohibit discrimination based on race, sex, color, religion or national origin in all employment practices. The question is to what extent this legislation has permeated social service agencies and affected their employment patterns, particularly with respect to administrative positions. In 1976, the Women's Issues Committee of the Oregon Chapter of the National Association of Social Workers (NASW), addressed this question by initiating a study of social work employment in Oregon. The first part of the study examined the salaries and positions of NASW members in this state. The second part of the study was designed to study more specifically the employment patterns of women MSWs in Oregon's social service agencies. Under the auspices of the Women's Issues Committee, the second part of the study was designed and conducted by eight graduate students at the School of Social Work at Portland State University. One objective of the study was to find out the proportion of men and women filling the management positions in local social service agencies. But the primary purpose of the study was to examine the management-executive employment patterns in agencies before and after affirmative action programs were instituted. An attempt was then made to determine the effects, if any, of such programs. It was hoped that the results would clarify how agencies implement their affirmative action programs, the effects of implementation, and the barriers to the employment of women in management positions.

Kenyan labour laws inadequately protect HIV positive worker. The Constitution of Kenya, 1963, does not prohibit stereotypical attitudes adverse to HIV positive workers and discrimination on the basis of health status. It does not provide for the right to employment, health and health care services, and fails to delimit privacy and dignity rights. Under the Industrial Property Act, 2001, the basis for Government exploitation of patent through compulsory licensing is whimsical and parallel importing is not envisaged. Employers unilaterally draft employment contracts notwithstanding their unequal power relations to employees. The HIV and AIDS Tribunal institutionalises discrimination against HIV positive workers on the basis of the ambiguous ‘inherent job requirements.’ Plausible international labour laws and practices have no place in Kenya unless they are domesticated. SUMMARY This thesis interrogates the Kenyan labour laws and policies to identify their inefficiencies and suggest recommendations for reform. It commences with an analysis of the topical issues associated with the HIV positive worker. It then examines the extent of prevalence and ramifications of HIV/AIDS in Kenya. Subsequently, it studies the efforts made at the international and domestic arena in protecting the HIV positive worker. A comparative analysis is made of the laws protecting the HIV positive worker in a number of countries, namely, South Africa, United States of America and Australia. The thesis draws conclusions and recommends measures on how best to protect the Kenyan HIV positive worker. The labour laws should be amended to prohibit discrimination on the basis of health status, provide for right to affordable medication and work, allow negotiation of employment contracts, list international laws that Kenya ratifies without reservation as a source of law and delimit the concept of ‘inherent requirements of a job.’ The public should be sensitised to embrace HIV positive workers. Once the new Constitution is enacted, it should list socio-economic rights as fundamental rights and reform the office of the ombudsman to deal with complaints against private employers. / (LL.D.)

Kenyan labour laws inadequately protect HIV positive worker. The Constitution of Kenya, 1963, does not prohibit stereotypical attitudes adverse to HIV positive workers and discrimination on the basis of health status. It does not provide for the right to employment, health and health care services, and fails to delimit privacy and dignity rights. Under the Industrial Property Act, 2001, the basis for Government exploitation of patent through compulsory licensing is whimsical and parallel importing is not envisaged. Employers unilaterally draft employment contracts notwithstanding their unequal power relations to employees. The HIV and AIDS Tribunal institutionalises discrimination against HIV positive workers on the basis of the ambiguous ‘inherent job requirements.’ Plausible international labour laws and practices have no place in Kenya unless they are domesticated. SUMMARY This thesis interrogates the Kenyan labour laws and policies to identify their inefficiencies and suggest recommendations for reform. It commences with an analysis of the topical issues associated with the HIV positive worker. It then examines the extent of prevalence and ramifications of HIV/AIDS in Kenya. Subsequently, it studies the efforts made at the international and domestic arena in protecting the HIV positive worker. A comparative analysis is made of the laws protecting the HIV positive worker in a number of countries, namely, South Africa, United States of America and Australia. The thesis draws conclusions and recommends measures on how best to protect the Kenyan HIV positive worker. The labour laws should be amended to prohibit discrimination on the basis of health status, provide for right to affordable medication and work, allow negotiation of employment contracts, list international laws that Kenya ratifies without reservation as a source of law and delimit the concept of ‘inherent requirements of a job.’ The public should be sensitised to embrace HIV positive workers. Once the new Constitution is enacted, it should list socio-economic rights as fundamental rights and reform the office of the ombudsman to deal with complaints against private employers. / (LL.D.)