This dissertation is a critical analysis of the provisions of sec 64(l)(b) and (c), 66(2)(b) and 77(l)(b) and (d) of the Labour Relations Act 66 of 1995 which prescribe notice of industrial action as a requirement of protected industrial action in South Africa. It traces the historical background of the requirement. It also addresses issues such as the purpose(s) of the notices, their scope of application, meaning, implications, who must give notice, to whom must notice be given, timing, computation, their duration, the consequences of failure to comply with them and various potential difficulties in the practical application of the notice requirement as well as the unintended consequences flowing from the provisions. Recommendations are made for the amendment of the Act in certain respects. The dissertation concludes that there is no justification for the inclusion in the Act of this requirement. The law is stated as at 30 September 2005. / Jurisprudence / LL.M.

A study of silences: as a metaphysics of the law, juridification silences the text of the law in order to enable an allegorical reading of the law. This silencing of the legal text can only be avoided through a non-metaphysical archaeological reading. Similarly, the programme of comparative labour law is silent at its most pivotal points, leaving some concerns of the programme indeterminate and indeterminable. As context, the dominant discourses of the labour law systems of the Federal Republic of Germany (Tarifautonomie), Great Britain (collective laizzesfaire) and South Africa (fairness) are identified and the agents of the jurisprudence (the courts) are briefly outlined. The silence operating within the phenomenology of the labour judiciary and the concept of a 'court' is also examined. The study then proceeds to read, in an archaeological manner, the industrial action jurisprudence in Germany, Great Britain and South Africa, such readings again yielding silences within the discourse of the law. The silences occurring throughout (and the resulting normative breaches in the rationality of the legal discourse) are the prerequisites for juridification, a process in terms of which the metajuridical standard is imported into the legal normative system and thereby rendered part of the archival discourse of the law. / LL.D.

Text in Afrikaans / In hierdie studie is gepoog om die sogenaamde "reg om te staak" aan die hand van nasionale en internasionale invloede te ontleed. Dit is veral die International labour Organisation se voorstelle wat 'n invloed gehad het om die Suid-Afrikaanse reg in lyn met die internasionale posisie te bring. Daar word egter gewys op die beperkinge van die reg om te staak, byvoorbeeld in die geval van noodsaaklike dienste en staatsdiensamptenare. Vervolgens is die Suid-Afrikaanse stakingsreg onder die loep geneem en is daar gekyk na die gemene reg, statutere reg en die gevolge van 'n staking. Die Suid-Afrikaanse reg is toe vergelyk met 'n aantal ILO-beginsels. Die moontlike invloed van die Grondwet, 200 van 1993 op die arbeidsreg is bespreek. Die ·studie konkludeer dat, alhoewel daar nie 'n absolute reg om te staak is nie, sodanige reg onder sekere omstandighede erken moet word. / The aim of the study was to analyse the so-called "right to strike" by looking at national as well as international influences on the subject. The suggestions by the International labour Organisation in particular had an influence on changing the South African position. The limitations on the right to strike were also scrutinized. The South African strike law was discussed. The common law position, statutory law as well as the consequences of a strike were analysed. The South African position was also compared with a few llO principles. The possible influence of the Constitution, Act 200 of 1993 on labour law was discussed. The study concluded that, althot:.Jgh there is not an absolute right to strike, such a right must be recognized in certain circumstances. / Mercentile Law / LL. M.

In the first section of the dissertation, strike law in the Netherlands is focused upon. The following issues are inter alia dealt with: the historical background of the strike phenomenon, the right to strike and restrictions on this right, the reluctance of the Dutch legislature to legislate in the field of industrial action, and the directly applicable provisions of the European Social Charter. The second section of the dissertation deals with South African strike law and also starts off with a discussion of the historical background thereof, whereafter the provisions of the 1995 Labour Relations Act are analysed and discussed. The third and last section highlights some of the major differences and points to some similarities between the two legal systems. It concludes that the detailed South African labour legislation does not provide more certainty than the Dutch judge-made law in respect of the law relating to strikes. / Law / LL.M.

The current South African legislative framework does not properly address the unequal bargaining position between employers and fixed term employees. Ineffective regulation of fixed term employment in South Africa has had the effect of excluding certain groups of fixed term employees from claiming the remedies provided in terms of the Labour Relations Act and other labour legislation. Furthermore, where remedies are applicable to them they are often ineffectual. Interpretational variation evident from case law pertaining to the enforcement of the rights of fixed term employees, indicate clear lacunae in the unfair dismissal protection afforded to these vulnerable employees. This is mainly a consequence of uncertainties related to the interpretation of the legislative provisions. The infusion of the values entrenched in the Constitution of the Republic of South Africa and the development of the common law to reflect these values might augment the scope and availability of rights enjoyed by fixed term employees. But, changing socio-economic and political circumstances necessitates review and amendment of the legislation applicable to fixed term employees to meet the country’s constitutional and international obligations. Proposed amendments to the Labour Relations Act have been tabled. These amendments may be capable of addressing some of the current problems. However, they may also lead to other undesirable consequences. An investigation into problems related to the application of similar provisions as those proposed by the Labour Relations Amendment Bill in other jurisdictions crystallises some possible causes for concern. Some of the proposed changes could create new vulnerabilities, or renew old ones. / Private Law / LL. D.

The effective management of a strike is generally a challenging phenomenon which impacts on employers, employees and the general public. The main purpose of this study was to analyse the legal implications of employees’ participation in an unprotected strike. The study also explored requirements for a strike to be protected in compliance with the prescribed legislation. From the literary review, cases and legislation, it became clear that compliance plays a key role when a consideration is taken by employees to take part in a strike during dispute resolution. In analysing the legal consequences for participating in an unprotected strike, a finding was made that employers in the end have an upper hand in that when all due processes and procedures are followed, they are empowered to dismiss employees. Legislation and international standards form the cornerstone upon which dispute resolution mechanisms and the rights of employers and employees are derived from. / Mercantile Law / LL.M. (Labour law)

The Labour Relations Act 66 of 1995 provides an elaborate dispute resolution system which seeks to resolve disputes in a speedy and cost-effective manner. However, this system is faced with a number of challenges. The application of common law and administrative law causes tension between the Labour Court and civil courts. It creates uncertainty in the development of our labour law jurisprudence and also leads to the problem of forum shopping. These problems in effect undermine the objectives of the Act. This dissertation analyzes problems in the LRA and other legislations leading to forum shopping. It also analyses the view of the courts on this problem and further expounds a number of possible solutions. The analysis revolves mainly around an observation of South African literature and case law. / Mercantile Law / LL.M.

South African affirmative action law in the workplace is in its infancy. Yet some concepts in this context have already proven to be unclear or in need of interpretation, or are lacking. This thesis focuses on the beneficiaries of affirmative action in employment law. The Employment Equity Act (EEA) creates `designated groups' ─ black people, women and people with disabilities ─ as the beneficiaries of affirmative action. It lays down two requirements for beneficiaries of affirmative action which are investigated: (a) beneficiaries must be from the designated groups - in this regard, the question that arises is whether, having been categorised as disadvantaged, persons are presumed to be de facto disadvantaged and entitled to benefit from affirmative action, or whether further evidence of actual past disadvantage is required; and (b) beneficiaries must be `suitably qualified'. In addition, citizenship as a third requirement for beneficiaries of affirmative action has been mooted in case law. This is evaluated against modern interpretation theory, the Constitution and discrimination law. Against the background of a comparative investigation of the position in the US and Canada, and under international law, specific findings and recommendations are made in respect of South African affirmative action law. These relate to the interpretation of the concept `disadvantage', to a pragmatic and contextualised approach to the notion `degrees of disadvantage', to the recognition of the concept `multiple disadvantage', to the clarification of the meaning and application of the concept `suitably qualified' in a code of good practice, and to a policy decision by government to ensure that affirmative action measures apply mainly to South African citizens who otherwise qualify to benefit. To this end, certain amendments to the EEA, its regulations and codes of good practice are proposed with the aim of ensuring that affirmative action measures in fact benefit those intended by the EEA. Some projections are made to indicate the way forward for affirmative action in South Africa. / Jurisprudence / LL.D.

Since 1994, various policies and guidelines, pertaining to the employment of people with disabilities have been promulgated. All of these policies highlighted the importance of employment equity and equality within the working environment. Despite all these policies and guidelines people with disabilities are still experiencing barriers within the working environment. These barriers prevent them from functioning optimally and equally alongside able-bodied colleagues. The requirements of people with disabilities are still not integrated into the general considerations of the workplace. In order to determine what factors people with physical disabilities perceive as important with regard to equality in the workplace, a combination of a qualitative and quantitative research approach were followed. Both convenient and Snowball/Chain sampling was utilised to identify the research participants. The data was gathered by means of an intensive literature study, as well as utilisation of surveys and interviews. After analysing the data, specific conclusions could be made. The sample was not representative of the total population, so these conclusions could not be generalised, it could however indicate certain trends. The conclusions with regard to the study could be utilised to improve the management of employees with physical disabilities in order to promote workplace equality. Certain recommendations in this regard have been made. Recommendations on how social workers could assist with the attainment of workplace equality for employees with disabilities have also been made. / Social Work / M.A. (Social Science)

Trade unions have been in existence for many years. Although their introduction was generally met with resistance, since their establishment trade unions have been important agents of social change worldwide. Over the years, trade unions have been involved in politics and other societal activities. In South Africa, trade unions for many years not only fought for worker’s rights within the workplace but also beyond the workplace. Trade unions started as friendly societies aimed at assisting their members with various matters, including offering financial help for education purposes and also in cases of illnesses. Although the main purpose of trade unions is to regulate relations between employees and their employers, trade unions perform other functions in society which can be broadly referred to as their social responsibility role. Unlike corporate social responsibility, which is recognised and formalised, trade union social responsibility is not, with the role and importance of social responsibility for trade unions having been largely ignored. This thesis aims at changing this by investigating their core responsibilities and their social responsibilities and subsequently making recommendations on how trade unions could recognise and accommodate their social responsibilities in their activities. It also considers factors that could assist trade unions in fulfilling their social responsibilities. Trade unions generally obtain legislative support for their core responsibilities, but not their social responsibilities; however this should not obstruct trade unions in such endeavours. As modern organisations it is high time that trade unions make a contribution towards sustainable development through their social responsibility role. / Private Law / LLD