Submitted in accordance with the requirement for the degree of Doctor of Philosophy in Business Administration at the University of the Witwatersrand Johannesburg March 2016 / The principal aim of this study is to analyse how the three (3) labour legislations, namely, (a) the Labour Relations Act 66 of 1995, (b) the Basic Conditions of Employment Act 75 of 1997 and (c) the Employment Equity Act 55 of 1998 influence the growth, management and governance of small enterprises in Gauteng Province of South Africa. This research also investigates if the complete exclusion, selective exclusion or parallel application of the above three labour legislations will help in the management, growth and good governance of small enterprises in Gauteng Province. In addition to the above issues, this research also investigates how disputes are resolved in small enterprises. Furthermore, this research investigates the issue of organisational rights in small enterprises.To investigate all the above issues, the researcher used both qualitative and quantitative research techniques and both techniques were quite useful in the data analysis.The inference that was drawn from the data analysis is that application of the three (3) labour legislations in terms of complete exclusion, selective exclusion and parallel application of the three labour legislations is very important for the growth, management and good governance of small enterprises and this is fully discussed in the thesis. The analysis of the research data indicates that small enterprises cannot benefit from the organisational rights entrenched in the Labour Relation Act of 1995 and the reasons for this are discussed in the thesis. This research also found that small enterprises cannot resolve their disputes efficiently through the current process of dispute resolution as stipulated in Section 135 of the LRA. The reasons why small enterprises find it difficult to follow the process is discussed in the thesis. The recommendations in this thesis, attempt to offer solutions to the identified problems. / MB2016

Thesis (LLM (Labour law))-- University of Limpopo, 2010.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2011 / The definition of an employee in most protective labour legislations excludes various categories of workers. The definition of what an employee is, is different in labour legislation. A new presumption of what an employee is, is just a guideline and not exhaustive. The tests developed by our courts do not assist in defining an employee in boarderline cases. It is not simple as it originally seemed. In the beginning it seemed certain but in the end the definition can no longer be valid. The definition of an employee is a journey of a thousand miles which begins with the test step-with no end. The words of Francis Bacan seem to hold water regarding most definition of an employee. Francis Bacan said I quote ‘if a man will begin with certainties, he shall end in doubts, but if he will be content to begin with doubts, he shall end in certainties.

The Public Service is service delivery driven, and is dependent on the quality, skill and performance of the employees to carry through its business. It is therefore imperative that the policies and systems pertaining to human capital are effectively and efficiently managed. The Basic Conditions of Employment Act regulates the basic conditions of employment and states that employees’ may be absent from duty due to illness. The public sector uses the Determination on the Leave of Absence in the Public Service as a tool to regulate leave in the public sector. The Determination provides employees with 36 paid sick days to be utilised by an employee within a three-year cycle. In cases where an employee has exhausted the sick leave, the employer may grant Temporary Incapacity Leave, which is discretional. The Public Service Commission has a constitutional obligation to monitor the performance of the public sector and produce reports covering the human resources management practices. With regards to the management of leave in the public sector, the reports reveal the abuse of sick leave by employees, non-compliance and the in-effective management. The Department of Public Service and Administration then developed the PILIR as a guide to manage and administer sick and incapacity leave in the public sector. This treatise therefore, discusses the regulation of sick and incapacity leave in the public sector and investigates the extent to which the applicable legislative framework is effective. The discussion uses the Labour Court judgment in the matter between The Public Service Association & Others versus the PSCBC & Others as reference, and further evaluates the judicial jurisprudence to demonstrate the extent of contentions of the private sector employers by the employees. Furthermore, this treatise seeks to evaluate the extent of similarities or differences of the practices both the private sector and the municipalities. In conclusion, the treatise makes recommendations on the best practices that can be adopted by the public sector to turn the situation around.

no abstract available / Jurisprudence / M.A. (Spesialisering in Arbeidsreg)

Thesis (MTech (Human Resource Management))--Peninsula Technikon, 2003 / The framework of the employment relationship is regulated by labour legislation. The relationship is known as the tripartite relationship, it is made up of the employer, employees normally represented by the union and the state. The state is responsible for the statutory and legislative framework within which this relationship is conducted.Legislation has been traditionally written in such a manner that only a selected group could understand and interpret it. The new dispensation in South Africa necessitated a move from the traditional manner in which legislation has been drafted to a more open and transparent format, which the general public can understand and comprehend. Plain language drafting that has been in use for the past 28 years intemationally is a method of drafting legislation which focuses on the reader or end-user.This study investigated the impact on comprehension and understanding levels of subjects when presented with a format of labour legislation that was redrafted using the guidelines of plain language drafting as opposed to the current format of the legislation.The research hypothesis was "Legislation will be more easily understood if redrafted in terms of plain language principles."An extensive literature review on plain language drafting, plain language principles and on mass communication was undertaken. The focal area in the literature review dealt with research that has been conducted on plain language drafting in labour legislation and on the theory of drafting and plain language.The empirical study was conducted at a model C type, senior secondary school in the Westem Cape with English speaking grade 11 students. The study tested the comprehension and understanding levels of the respondents 'In an experimental and control group environment. The experimental group receivedthe redrafted format of the legislation and the control group received the current format of the legislation.The results of the empirical study, conclusively demonstrated that the respondents in the experimental group who received the redrafted fonnat of the legislation, far exceeded the performance of the results that were achieved by the control group who received the current format of the legislation. The test results were exposed to various statistical measures to validate the research hypothesis. The findings of the statistical measures supported the research hypothesis.The findings of the empirical study concurred with the literature review and the research hypothesis; that when plain language drafting principles are applied to legislation, the reader more easily understands it.In conclusion the statistical tests have conclusively proved that, overall, plain language does improve comprehension of the legislation.

M.Phil. (Labour Relations) / Please refer to full text to view abstract

This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.

It took 18 months of intensive negotiation at the Millennium Labour Council, NEDLAC and the Labour Portfolio Committee before the Labour Relations Amendment Act of 20021 completed its passage through Parliament, taking effect on 1 August 2002. Fifty-seven amendments to specific sections of the Labour Relations Act2 and its schedules cure some obvious anomalies in the original version. It is further apparent that the legislature has taken cognisance of the observations by judges and arbitrators, who voiced their criticism in respect of certain aspects of the original "Act". The amended "Act"3 does appear to be a genuine commitment by both business and organised labour to improve efficiency in the labour market, to promote employment creation and to protect vulnerable workers. Improved dispute resolution mechanisms, enforcement mechanisms and the resurgence of an unfettered discretion in awarding compensation go some way to improving the application of the "Act". The most dramatic amendments have taken place in the law regulating retrenchments by large employers, inclusive of the controversial introduction of a right to strike after retrenchments of this nature have been effected, and the regulation of the transfer of a business as a going concern and its impact on workers. Critics indicate that business and organised labour have subscribed to the package of amendments despite respective reservations and due to certain time constraints. The nett result is a package of amendments that could be described as failing to address, in certain respects, or intentionally overlooking, areas of the "Act" that have traditionally been shown wanting in the past. In the individual employment law sphere specifically, the failure to address the meaning of "benefits" in the definition of unfair labour practices; to allocate a precise meaning to the concept of the transfer of a going concern; or to regulate the conduct of employers when transferring employees, remain some of the areas for concern. It appears that the legislature has decided that certain issues should be resolved by the Labour Court, and ultimately the Labour Appeal Court, on a case-by-case basis rather than by legislative intervention. Whilst this approach has merit, it does present problems to those seeking to apply the provisions of the amended "Act" 5 in everyday practice. On the whole, the amendments do not, nor were they designed to, mark a major shift in the government's labour market policy. The changes clearly focus on correcting and clarifying sections of the "Act", which have resulted in unintended consequences, or lost touch with commercial reality, over the past seven years.

The recent amendments made to employment laws and in particular the rewriting of the South African Labour Relations Act has brought into focus the diverse and conflicting interests of employers and employees, which is a concern of labour law analysts. This appraisal of South African of strike law examines the statutory and judicially established labour law in regard to the phenomenon of collective industrial action by employees and the regulation of its occurrence. Historical developments in strike law are traced from the early 1900’s. A period of segregated trade unionism, led ultimately to the introduction of a more inclusive system of regulation, which has in turn been modified to bring the law into line with the new constitutional imperatives. Industrial action occurred, often unregulated and regardless of statutory limitations, and in particular that industrial action which related to mass protest action, now recognized as a specific form of strike. The now repealed Labour Relations Act 28 of 1956 is examined with regard to its strike regulating provisions, and identification of what were then new, unrecognized forms of strike action. It has allowed concepts and principles to be developed, under the unfair labour practice jurisdiction of the Industrial Court, much of which has been incorporated in the new Labour Relations Act. The legislation on strike law, which has been developed over the years, has been refined by the constitutional imperatives introduced to the national legal system. The relevant aspects of the new Constitution Act 108 of 1996 and its pervasive effect on strike law are examined. The right to strike in South African labour law, together with the protection of collective bargaining, is now constitutionally entrenched, and the right to strike is now accepted as a necessary adjunct to collective bargaining. It is necessary to give effect to the Constitution in national legislation, and the Labour Relations Act 66 of 1995 endeavours to accomplish this in chapter IV in regard to strike law, which, it could be argued, limits rather than gives expression to the right to strike. iii The Labour Relations Act of 1995 is then discussed with reference to protected and prohibited strikes, and unregulated strike action. It will be evident that the Act has endeavoured to contain unprocedural and productivity draining industrial action, by subjecting rights disputes to arbitration and Labour Court adjudication, subject to certain exceptions. The recourse to lock-out, as the employer’s prerogative and general corollary of strike action, is briefly discussed. The case law relating to strikes is discussed in respect of both the 1956 Act and the new Labour Relations Act of 1995. Among the issues explored are the strike provisions which have been developed in statute and labour related common law, such as the identification of issues in dispute, notice of strike, the issuing of ultimatums, the audi altarem partem rule and the court’s approach to protected and unprotected strikes. The intention is to determine trends resulting from amendments to the law and draw inferences regarding, in particular, the unregulated form of strikes that occur within the scope of the protections offered by the Act. It is the intention to determine whether the desired effect has been achieved by implementing legislative reforms in response to public policy considerations.