The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.

Text in Afrikaans / Summaries in English and Afrikaans / The statutory definition of the lock-out encompasses certain acts (inter alia termination of contracts of employment) which must be executed by the employer with a certain purpose. The Appellate Division has recently found that the employment relationship not necessarily terminates similarly to the common law contract of employment, but may subsist after termination of the contract of employment. The industrial court does not easily accept that it has been deprived of its unfair labour practice jurisdiction where terminations of employment take place in consequence of a lock-out. The motive of the employer seems to be decisive. In line with both the trend in first world countries and principles established by the courts in South Africa, the Constitution and especially recent labour legislation significantly curtail the bargaining power of the employer because it is progressively being believed that the employer has sufficient economic power to his disposal. / Die omskrywing van die uitsluiting in wetgewing omvat sekere handelinge {onder andere beeindiging van dienskontrakte) wat deur die werkgewer met 'n sekere doel verrig moet word. Die Appelhof het onlangs beslis dat die diensverhouding na beeindiging van die dienskontrak kan bly voortduur en nie noodwendig soos die gemeenregtelike dienskontrak ten einde loop nie. Die nywerheidshof aanvaar ook nie geredelik dat hy in geval van diensbeeindiging wat volg op 'n uitsluiting van sy onbillike arbeidspraktyk jurisdiksie ontneem is nie. Die motief van die werkgewer blyk hier deurslaggewend te wees. In lyn met sowel die ne1g1ng in eerstew~reldse lande, asook beginsels reeds deur die howe in Suid-Afrika gevestig, word die bedingingsmag van die werkgewer ingevolge die Grondwet en veral onlangse arbeidswetgewing betekenisvol ingekort omrede toenemend aanvaar word dat die werkgewer oor voldoende ekonomiese mag beskik. / Law / LL.M.

Summaries in Afrikaans and English / Text in Afrikaans / In hierdie proefskrif word daar gekonsentreer op die bewyslas in die nywerheidshof omdat die nywerheidshof se benadering met betrekking tot die bewyslas verskil van geval tot gevaL afhangende van die aard van die regshulp waarvoor die party je die nywerheidshof nader. In die tweede plek volg 'n bespreking van hoe en deur wie die voorlegging van getuienis aan die nywerheidshof mag geskied, hetsy by wyse van dokumente of getuies en daarbenewens oak 'n bespreking van watter soort getuienis aan die nywerheidshof voorgele mag word met spesifieke verwysing na inter alia, klankopnames, videobande en die resultate van leuenverklikkertoetse. / In this thesis there will be concentrated on the burden of proof in the industrial court because the industrial court's approach in regard to the burden of proof differs from case to case, depending on the nature of the legal aid for which the party /ies approaches the industrial court. In the second place a discussion will follow of how and by whom the presenting of evidence can be done, whether by documents or by witnesses, and in addition thereto also a discussion on which sort of evidence can be presented to the industrial court with specific reference to, inter alia, taperecordings, video tapes and the results of lie-detector tests. / Private Law / LL.M. (Handelsreg)

Until recently, the legal position of domestic workers in South Africa could be described as a relic of the nineteenth century, when the contract of employment and the common law defined the employer-employee relationship. The legal rules which regulate the relationship between the domestic worker and her employer are examined. International labour standards and the legal position of domestic workers in other countries are considered. Cognisance is taken of the social phenomenon which finds domestic workers at the convergence of three lines along which inequality is generated, namely gender, race and class. Furthermore, the unique economic forces at play in this sector are examined. The law will be stretched to its limits when attempting to resolve what is, essentially, a socio-economic problem. However, the working lives of a million people are at stake. The legislature has a constitutional, political and moral responsibility to attend to reform in this sector as a matter of urgency. / Private Law / LL.M.

Picketing, a method used by employees, collectively, to assert their demands against employers, is a controversial subject arising from the conflict of interest existing between labour and employers! Previously, South African law neither forbade nor regulated picketing. Consequently, no immunity from civil liability existed in relation to a person's conduct during a picket. Presently, picketing is regulated by section 17 of the Constitution of the Republic of South Africa Act 108of19% (right to picket) and section 69 of the Labour Relations Act 66 of 1995, which provides for a protected picket (one that complies with the requirements of section 69) whereby immunity from civil liability attaches to a person's conduct during a picket. These provisions and their coexistence is examined, comparing foreign law where relevant, in an attempt to provide a foundation for a topic relatively disregarded. Section 69 reveals elements of uncertainty and vagueness. / Law / LL.M.

This thesis analyses conflicts in the role of business as a social partner in the South African economy by studying skills development in the Border-Kei Region. Skills development is a key component of the South African government’s programme of labour market regulation and is founded on a participatory approach. The skills development framework requires the participation and co-operation of multiple social partners but relies heavily on the role of business in the attainment of national and sectoral skills development objectives. Unfortunately, however, there are significant conflicts in the role which business is expected to play which consequently hinder the efficiency of the framework and the likelihood that that these objectives will be realised. One of the most pertinent examples of these conflicts is the voluntary nature of the skills development framework, which incentivises but does not compel organisations to invest in training and development. Other conflicts include dissonances between national and employer led strategies and organisational disincentives to engage in training and development. This qualitative study uses an interpretive approach to study how and to what extent the Skills Development Act is implemented in selected organisations in Buffalo City as well as studying the issues pertaining to the implementation process. By using a purposive sampling approach, this research includes both primary data in the form of semi-structured interviews and secondary data in the form of documentary sources. The data represents the perspectives of business, labour and government and provides significant depth of insight into the discussions and issues surrounding skills development in Buffalo City. This dissertation argues that South Africa’s vocational training system, institutionalised through appropriate legislation, may not be sufficient to mobilise social partners, and of primary concern in this research – business – to invest in skills development. It suggests that extensive reliance on business is an insufficient way in which to upskill the labour market. However, with few alternatives to this approach, it is subsequently essential that business is encouraged to buy into the collective interest of skills development objectives. This primarily entails overcoming the challenges that embody the framework and increasing state emphasis on skills development.

The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.

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 critical and in-depth discussion of the powers of the labour court to review arbitration awards of the Commission for Conciliation, Mediation and Arbitration, the application of the author's findings relating to common-law, legislation and case law and a critical analysis thereof. Special reference is made to the provisions of sections 145 and 158(1)(g) of the Labour Relations Act 66 of 1995 including, in particular, the alternative application thereof in practice and scope for improvement in order to address potential prejudice to parties occasioned by the compulsory nature of (certain) dispute resolutions. This thesis incorporates a comparative study of the British and German labour law systems with reference to the relevant appeal and/or review procedures (as applied in their tribunals/courts), together with a discussion and application of certain other provisions relevant to South Africa labour law. / Jurisprudence / 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 / LLD