The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.

The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.

LL.M. (International Commercial Law) / “It is in this very context of employment relationships which have a cross-border dimension that conflict of law between individual legislative systems in the area of employment law raise complex questions of law. One of the consequences of this is that they often present the courts … which are called upon to determine the law applicable to an employment contract with considerable problems. Alongside the customary difficulties associated with interpreting the employment contract comes the uncertainty as to what the best approach is to determining the applicable law. These difficulties in judicial practice are on the increase as it becomes more common for workers to be posted, more EU citizens avail themselves of the freedom of movement for workers and more undertakings enter into relationships with firms overseas or operate places of business in other countries. The – temporary or indefinite – posting of large numbers of employees has become an important aspect of international economic relations, not only within the European internal market but, more generally, throughout the world. It is for that very reason that there is an urgent need for conflict of law rules which offer the contracting parties foreseeable solutions to the numerous problems that affect employment relationships...”Like Advocate General Trstenjak, South African writers are not ignorant of the complications that international contracts of employment bring. As correctly pointed out by Calitz, globalisation has resulted in many South African employees increasingly working for South African employers outside of South Africa and the determination of any disputes that may arise in these unique employment relationships requires the application of conflict of laws. This is problematic and the present author submits that there is a lacuna in South African private international law in respect of employment contracts involving a foreign element. A number of factors have contributed to this gap in South African private international law, namely the infrequency with which judges in South African courts have been called upon to determine such issues.

Magister Legum - LLM / This thesis examined to what extent the current legislation protects the HIV positive employee against unfair discrimination and dismissal. The study gave short medical background to HIV/AIDS and introduced HIV discrimination by giving the historical background to HIV related discrimination. From this, the extent of stigmatization against this group was introduced. / South Africa

The South African government has attempted to find a balance of interests between the employer and the employee by the introduction of the Labour Relations Act in 1995 and the Basic Conditions of Employment Act in 1997. It is critical to the health of the South African economy that these labour laws do not impact small businesses to the extent that the Gross Domestic Product of the country is negatively affected. There are conflicting reports as to how these labour laws affect small businesses. It is therefore important for government to be able to understand, define and measure the impact of its labour laws on small businesses, in order for it to strategise corrective measures, which may include reconsidering the application of the legislative directive, regulated flexibility, if required. The study was limited in the sense that it was solely based on evidence collected from employers. An interpretivist approach was applied as a research methodology to data collected through in-depth interviews. The main findings of the empirical analysis demonstrate that labour legislation does not heavily impact small firms. It was thus determined that extensive measures were not needed with regard to correcting the framework of regulated flexibility.

This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.

This study sought to explore and explain the impact of labour laws on small firms, focusing on employer perceptions of the Labour Relations Act of 1995 and the Basic Conditions of Employment Act of 1997 in three towns of the Eastern Cape. It is important to focus on this impact of labour laws on these firms because of the high unemployment that faces the country. In this regard, it must be emphasised, firstly, that small firms are central to job creation; therefore, they contribute to a reduction in the unemployment rate; hence, the strategies created by the government to reduce any burdens (including regulatory burdens) on small firms. It is therefore important to study the impact of labour law on small businesses in order to assess the regulatory burden on small firms. The theoretical framework which underpins this study on the impact of labour law on small firms arises from the neo-corporatist critique of neo-liberalism. The two frameworks maintain the extent to which the government should intervene in the industrial relations system. Liberalism maintains that there should be a minimum role of the government, which involves only the facilitation of a framework for negotiations between employers and employees. Corporatism, however, maintains a social democratic approach, and holds that there should be an active role of the government in the industrial relations system with business, labour and the state working co-operatively (Klerck, 2009). This theoretical framework therefore shapes the extent to which employers perceive labour laws or state’s regulatory role impacts small businesses. The data was collected through the qualitative inquiry; using face-to-face, semi-structured interviews. The findings in this study included negative employer perceptions of labour laws. More specifically, many of the employers that were interviewed claimed that labour laws were burdensome on their businesses. They claimed that labour laws imposed financial and administrative costs to their firms, negatively affected the employer-employee relationships in these firms as well as the employing decisions of the employers. As a result, the employers saw labour laws as undermining flexibility and imposing unfair rigidities on small firms. Furthermore, employers perceived South African labour laws as not addressing the unique iii circumstances of small firms. They maintained that labour laws treated small firms similarly to large firms. Even though the employers held these perceptions of labour laws, it was evident that these subjective perceptions did not reflect the objective impact of labour laws on small firms. This was firstly related to the fact that many of the employers that were interviewed had negative views of labour laws but these views were not substantiated by particular events in their firms. Secondly, it was revealed that the employers’ perceptions of labour laws were based on their misconception or misunderstanding of labour law. Thirdly, it was revealed in this thesis that small firms were not affected in the same way to big firms by labour regulation. This was related to the fact that many of the small firms’ employers that were interviewed tended to be less concerned by regulation. Specifically, although many employers that were interviewed claimed that labour laws were burdensome on their firms it was evident that regulation was avoided because of the informality that characterised these firms. Consequently informality mediated the impact of labour laws on these firms, and labour laws imposed less ‘costs’ on these firms. However, it cannot be argued that small firms are isolated from the sphere of labour laws. Rather, although these firms were governed by regulation it was found that the extent to which employers complied with regulation depended on the extent to which organisational practice already reflected similarity with the legislative objective. / Acrobat PDFMaker 10.1 for Word / Adobe PDF Library 10.0

Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. / Abstract

During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. / Abstract

Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.