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The creation of a general duty to bargain in view of the SANDF judgements / Louis Lodewyk KrügerKrüger, Louis Lodewyk January 2014 (has links)
Section 23(5) of the Constitution entrenches trade unions, employer's organisations and employers' right to engage in collective bargaining. For employees, collective bargaining is the key which opens the door to better wages, improved working conditions and an overall better standard of living to name but a few. The Labour Relations Act was promulgated to give effect to section 23 of the Constitution. However, in section 2 of the Labour Relations Act, members of the South African National Defence Force were excluded from the ambit of the Labour Relations Act (LRA). After the Constitutional Court regarded members of the South African National Defence Force (SANDF) to be "workers", they also had the right to engage in collective bargaining. However, because of the special duty that the members of the SANDF have to fulfil namely to ensure the safety of the republic and its citizens, they are not awarded the right to strike. The question therefor is: How do the members of the SANDF compel the SANDF to bargain with them?
The aim of this study is to establish if a duty to bargain was implemented by Chapter XX of the General Regulations of the South African National Defence Force and the Reserve. Firstly, the new dispensation of voluntarism under the new LRA is examined to understand how collective bargaining would work in a normal situation and not that of the members of the SANDF. Freedom of association is also discussed. The reason for this was because members of the SANDF also have to right to associate with a trade union of their choice by sections 18 and 23(2) of the Constitution. Under the new LRA, organisational rights also play a major role in the bargaining process and afford trade unions more bargaining power.
The voluntarist approach followed by the new LRA effectively removed the duty to bargain from collective bargaining. As explained above, the special situation applicable to the SANDF and its members are not governed by the LRA and therefor a duty to bargain might still exist in this specific system of collective bargaining managed by the regulations. The duty to bargain is based on representativeness and good faith which are also examined in this study.
To establish if a duty to bargain was created by the courts, an examination of the judgements of the High Court, the Supreme Court of Appeal and the Constitutional Court. The Constitutional Court reiterated that there is no legally enforceable duty to bargain between the SANDF and the South African National Defence Union (SANDU).
If Chapter XX of the regulations is scrutinised, it can however be seen that there is an initial duty on the SANDF to bargain with a registered military trade union over matter set out in regulation 36 which include most if not all matters of mutual interest. Therefor it would seem that a duty to bargain is created by Chapter XX. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2014
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The creation of a general duty to bargain in view of the SANDF judgements / Louis Lodewyk KrügerKrüger, Louis Lodewyk January 2014 (has links)
Section 23(5) of the Constitution entrenches trade unions, employer's organisations and employers' right to engage in collective bargaining. For employees, collective bargaining is the key which opens the door to better wages, improved working conditions and an overall better standard of living to name but a few. The Labour Relations Act was promulgated to give effect to section 23 of the Constitution. However, in section 2 of the Labour Relations Act, members of the South African National Defence Force were excluded from the ambit of the Labour Relations Act (LRA). After the Constitutional Court regarded members of the South African National Defence Force (SANDF) to be "workers", they also had the right to engage in collective bargaining. However, because of the special duty that the members of the SANDF have to fulfil namely to ensure the safety of the republic and its citizens, they are not awarded the right to strike. The question therefor is: How do the members of the SANDF compel the SANDF to bargain with them?
The aim of this study is to establish if a duty to bargain was implemented by Chapter XX of the General Regulations of the South African National Defence Force and the Reserve. Firstly, the new dispensation of voluntarism under the new LRA is examined to understand how collective bargaining would work in a normal situation and not that of the members of the SANDF. Freedom of association is also discussed. The reason for this was because members of the SANDF also have to right to associate with a trade union of their choice by sections 18 and 23(2) of the Constitution. Under the new LRA, organisational rights also play a major role in the bargaining process and afford trade unions more bargaining power.
The voluntarist approach followed by the new LRA effectively removed the duty to bargain from collective bargaining. As explained above, the special situation applicable to the SANDF and its members are not governed by the LRA and therefor a duty to bargain might still exist in this specific system of collective bargaining managed by the regulations. The duty to bargain is based on representativeness and good faith which are also examined in this study.
To establish if a duty to bargain was created by the courts, an examination of the judgements of the High Court, the Supreme Court of Appeal and the Constitutional Court. The Constitutional Court reiterated that there is no legally enforceable duty to bargain between the SANDF and the South African National Defence Union (SANDU).
If Chapter XX of the regulations is scrutinised, it can however be seen that there is an initial duty on the SANDF to bargain with a registered military trade union over matter set out in regulation 36 which include most if not all matters of mutual interest. Therefor it would seem that a duty to bargain is created by Chapter XX. / LLM (Labour Law), North-West University, Potchefstroom Campus, 2014
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Employee participation and voice in companies : a legal perspective / Monray Marsellus BothaBotha, Monray Marsellus January 2015 (has links)
Recently, South African company law underwent a dramatic overhaul through the
introduction of the Companies Act 71 of 2008. Central to company law is the promotion of
corporate governance: companies no longer are accountable to their shareholders only but
to society at large. Leaders should direct company strategy and operations with a view to
achieving the triple bottom-line (economic, social and environmental performance) and,
thus, should manage the business in a sustainable manner. An important question in
company law today: In whose interest should the company be managed?
Corporate governance needs to address the entire span of responsibilities to all
stakeholders of the company, such as customers, employees, shareholders, suppliers and
the community at large. The Companies Act aims to balance the rights and obligations of
shareholders and directors within companies and encourages the efficient and responsible
management of companies. The promotion of human rights is central in the application of
company law: it is extremely important given the significant role of enterprises within the
social and economic life of the nation.
The interests of various stakeholder groups in the context of the corporation as a “social
institution” should be enhanced and protected. Because corporations are a part of society
and the community they are required to be socially responsible and to be more
accountable to all stakeholders in the company. Although directors act in the best interests
of shareholders, collectively, they must also consider the interests of other stakeholders.
Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into
account the Constitution, labour and company law legislation in dealing with social justice
issues.
Employees have become important stakeholders in companies and their needs should be
taken into account in a bigger corporate governance and social responsibility framework.
Consideration of the role of employees in corporations entails notice that the Constitution
grants every person a fundamental right to fair labour practices.
Social as well as political change became evident after South Africa's re-entry into the
world in the 1990s. Change to socio-economic conditions in a developing country is also
evident. These changes have a major influence on South African labour law. Like company
law, labour law, to a large extent, is codified. Like company law, no precise definition of
labour law exists. From the various definitions, labour law covers both the individual and
collective labour law and various role-players are involved. These role-players include trade
unions, employers/companies, employees, and the state. The various relationships
between these parties, ultimately, are what guides a certain outcome if there is a power
play between them.
In 1995 the South African labour market was transformed by the introduction of the
Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation
that governs labour law in South Africa. The notion of industrial democracy and the
transformation of the workplace are central issues in South African labour law. The
constitutional change that have taken place in South Africa, by which the protection of
human rights and the democratisation of the workplace are advanced contributed to these
developments. Before the enactment of the LRA, employee participation and voice were
much-debated topics, locally and internationally. In considering employee participation, it
is essential to take due cognisance of both the labour and company law principles that are
pertinent: the need for workers to have a voice in the workplace and for employers to
manage their corporations. Employee participation and voice should be evident at different levels: from informationsharing
to consultation to joint decision-making. Corporations should enhance systems and
processes that facilitate employee participation and voice in decisions that affect
employees.
The primary research question under investigation is: What role should (and could)
employees play in corporate decision-making in South Africa? The main inquiry of the
thesis, therefore, is to explore the issue of granting a voice to employees in companies, in
particular, the role of employees in the decision-making processes of companies.
The thesis explores various options, including supervisory co-determination as well as
social co-determination, in order to find solutions that will facilitate the achievement of
employee participation and voice in companies in South Africa. / LLD, North-West University, Potchefstroom Campus, 2015
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Employee participation and voice in companies : a legal perspective / Monray Marsellus BothaBotha, Monray Marsellus January 2015 (has links)
Recently, South African company law underwent a dramatic overhaul through the
introduction of the Companies Act 71 of 2008. Central to company law is the promotion of
corporate governance: companies no longer are accountable to their shareholders only but
to society at large. Leaders should direct company strategy and operations with a view to
achieving the triple bottom-line (economic, social and environmental performance) and,
thus, should manage the business in a sustainable manner. An important question in
company law today: In whose interest should the company be managed?
Corporate governance needs to address the entire span of responsibilities to all
stakeholders of the company, such as customers, employees, shareholders, suppliers and
the community at large. The Companies Act aims to balance the rights and obligations of
shareholders and directors within companies and encourages the efficient and responsible
management of companies. The promotion of human rights is central in the application of
company law: it is extremely important given the significant role of enterprises within the
social and economic life of the nation.
The interests of various stakeholder groups in the context of the corporation as a “social
institution” should be enhanced and protected. Because corporations are a part of society
and the community they are required to be socially responsible and to be more
accountable to all stakeholders in the company. Although directors act in the best interests
of shareholders, collectively, they must also consider the interests of other stakeholders.
Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into
account the Constitution, labour and company law legislation in dealing with social justice
issues.
Employees have become important stakeholders in companies and their needs should be
taken into account in a bigger corporate governance and social responsibility framework.
Consideration of the role of employees in corporations entails notice that the Constitution
grants every person a fundamental right to fair labour practices.
Social as well as political change became evident after South Africa's re-entry into the
world in the 1990s. Change to socio-economic conditions in a developing country is also
evident. These changes have a major influence on South African labour law. Like company
law, labour law, to a large extent, is codified. Like company law, no precise definition of
labour law exists. From the various definitions, labour law covers both the individual and
collective labour law and various role-players are involved. These role-players include trade
unions, employers/companies, employees, and the state. The various relationships
between these parties, ultimately, are what guides a certain outcome if there is a power
play between them.
In 1995 the South African labour market was transformed by the introduction of the
Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation
that governs labour law in South Africa. The notion of industrial democracy and the
transformation of the workplace are central issues in South African labour law. The
constitutional change that have taken place in South Africa, by which the protection of
human rights and the democratisation of the workplace are advanced contributed to these
developments. Before the enactment of the LRA, employee participation and voice were
much-debated topics, locally and internationally. In considering employee participation, it
is essential to take due cognisance of both the labour and company law principles that are
pertinent: the need for workers to have a voice in the workplace and for employers to
manage their corporations. Employee participation and voice should be evident at different levels: from informationsharing
to consultation to joint decision-making. Corporations should enhance systems and
processes that facilitate employee participation and voice in decisions that affect
employees.
The primary research question under investigation is: What role should (and could)
employees play in corporate decision-making in South Africa? The main inquiry of the
thesis, therefore, is to explore the issue of granting a voice to employees in companies, in
particular, the role of employees in the decision-making processes of companies.
The thesis explores various options, including supervisory co-determination as well as
social co-determination, in order to find solutions that will facilitate the achievement of
employee participation and voice in companies in South Africa. / LLD, North-West University, Potchefstroom Campus, 2015
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