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

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

Made available in DSpace on 2016-04-26T20:22:02Z (GMT). No. of bitstreams: 1 Luiz Fernando Roberto.pdf: 522268 bytes, checksum: fd68be62a269f8d849fe35be941fee65 (MD5) Previous issue date: 2013-10-08 / This paper aims to describe the normative framework that regulates agreements with private entities and their recent movements. From the construction of a critical view on the matter, the estudy discusses the core ideas that base traditional forms of selection of the private partner and the restrictions to internal management of entities. Pointing lack of objectivity and excessive cost in the existing system, the paper proposes a new theoretical approach to the matter, in which planning and administrative simplification can be used as tools for a more effective control over public resources transferred by the Estate / O presente trabalho tem por objetivo descrever a estrutura normativa que regula os convênios com entidades privadas e seus recentes movimentos. A partir da construção de uma visão crítica sobre a matéria, o trabalho questiona as ideais centrais que servem de base para as formas tradicionais de seleção do parceiro privado e para as normas dirigidas a restringir a gestão interna das entidades. Apontando falta de objetividade e custo excessivo no sistema existente, o trabalho propõe um novo enfoque teórico para a matéria, no qual o planejamento e a simplificação administrativa sirvam de instrumentos para um controle mais eficaz sobre os recursos públicos repassados pelo Estado

本文以GATS觀光建制演進為例，驗證以新自由制度主義為基礎所建立的基本假設。本文對GATS觀光建制演進所作之考察，驗證了經濟過程面、整體權力結構、議題權力結構、國際組織面等總體政治經濟結構面因素，在不同階段，單獨或合併對GATS觀光建制立法演進產生不同面向之影響。(見圖7-1) 經濟與科技發展及變化，是GATS及觀光建制議題形成的主要動能。GATS建制之形成，最初之原動力來自於美國因經濟及科技發展，而產生將服務貿易納入多邊貿易體系之利益認知，進而透過議程設定以推動建制之形成。WTO設立後，面對全球觀光需求成長之趨勢，不同發展階段的國家，都看到許多觀光商機，皆對觀光服務貿易寄以厚望，因此產生了持續進行觀光自由化談判之動能。 經濟與科技發展及變化，除了促成繼續推動模式二自由化承諾外，亦驅策已開發國家如美國所主張之模式三自由化，及開發中國家如印度所主張之模式四自由化。網路科技之進步，提高某些服務以模式一跨境提供的可行性，而產生模式一自由化之動機。但經濟與科技發展及變化，固然帶來了商機，也導致某些開發中國家所賴以維生之觀光產業，遭受跨國公司挾新科技之重大威脅。觀光附件立法之原始驅力，即來自於開發中國家面對經濟及科技變化所帶來之挑戰，期望透過立法途徑以有效減少利益漏失。 經濟及科技變化因素產生了談判動機，但仍有賴足夠的權力才能推動談判，而將所欲談判之議題推上議程，並影響談判結果。GATS建制之形成，最初得力於美國運用其於冷戰時期的強大整體權力為後盾，排除議價障礙，而將服務貿易議題推上烏拉圭回合談判議程。但隨著冷戰結束，整體權力結構未必能支配個別議題權力結構，美國較難運用其整體權力以遂行其在經貿議題領域的主張。因此，在服務貿易議題領域，烏拉圭回合後期一再出現多數意見凌駕美國利益期待的重要決定，例如美國所主張之國民待遇與市場開放二大原則列入一般義務，以及以負面表列方式作承諾，均遭到多數意見反對而大幅修改。 就權力結構面向觀察，當前WTO下的整體權力結構，係美國為首，EC協同領導，G-20具有關鍵反對地位的態勢。觀光議題權力結構，大致與WTO下的整體權力結構接近，亦是美歐主導，G-20具關鍵地位之態勢。整體權力結構因素，對於WTO建制整體推進與遲滯，例如杜哈議程的整體進展，影響較為直接。觀光特定承諾談判作為杜哈議程下服務貿易談判的一環，亦受整體進展之間接影響。美國所主張之旅館服務模式三自由化，以及「觀光談判九國立場文件」所主張之模式一及模式四自由化，皆因取得足夠的權力基礎，而較有機會進入談判議程。對觀光附件提案國言，觀光附件提案在杜哈議程展開後的政治經濟氣候下，迅速失去動能，與提案國勢單力薄，欠缺權力基礎不無關係。透過議題串連及或結盟可提高權力；觀光附件原始提案國多明尼加等，透過「觀光談判九國立場文件」提案，而與G-20主要成員議題結盟，不無強化提案之權力基礎，以提高競爭防護議題進入談判議程機會之意。 議題權力結構對於觀光談判有其影響。雖然由於整體權力結構與觀光議題權力結構的落差不大，其權力基礎究係整體權力或議題權力，不易分辨。不過，印度在杜哈議程下大幅放寬對觀光旅遊服務模式三自由化之承諾，議題權力結構可以局部解釋此一立場大轉變之原因。觀光附件提案國整體權力甚弱，但因對觀光議題之重視，傾力推動，而使其在此議題之權力得以提升，而發揮影響議程之作用。 在國際組織面因素方面，正式或非正式國際網絡、規範、制度，對權力行使所產生之約束力或助力，有時會造成與權力結構不盡一致的議價結果。昔日GATS形成之初，係在原GATT建制下進行談判，開發中國家得以利用GATT既有架構表達反對立場，而導致GATT秘書處無法於1980年代初期建立服務貿易討論的正式議程。其後，烏拉圭回合談判中，在強調「貿易體系整體需求」而不考慮個別國家利益下，限制了美國之權力運用，使其無法迫使他國接受其所擬訂的「服務貿易總協定」草案版本。國際組織面因素，對弱國的權力的行使常有頗大助力。尤其是GATS發展規範及其所衍生之規則，使權力相對弱勢之開發中國家取得更佳議價地位。開發中國家關於觀光議題之提案，無論是特定承諾談判或觀光附件相關議題之主張，發展規範及相關規則皆是重要後盾。反觀已開發國家受發展規範之拘束，卻又不能加以挑戰，只能於規則層次爭取有利之解釋。除發展規範外，WTO單一承諾談判制度及投票規則，乃至其他國際組織如世界觀光組織、UNCTAD，乃至NGOs的網絡關係或行為規範，亦對觀光建制演進有所影響。 本文之考察，亦驗證了另一項結構面之基本假設：改變GATS建制內容的新主張能否推進，前提是會員對於在「促進經濟福祉」及「維護政策自主」二方面相互利益之強弱有無之認知。GATS建制之自由化、發展、國內管制等三大主要規範，均可辨認出此二類可期待之相互利益，作為合作之基礎。惟強弱有別；例如，發展規範對已開發國家眼前之直接利益顯然不大，故政治基礎較不穩定，從而出現透過政治運作而降低牽制之嘗試。基本上，國家恒常運用其權力以追求利益，倘若某一涉及建制演進之主張，並無足夠的相互利益可資期待，則難誘發其運用權力以推進該主張之動能。推動建制改變的提案主張，必須具有與權力結構大致相稱的相互利益，但發展規範的推進無此條件。因此，相較於自由化規範，發展規範之推進，更有賴權力較大之會員，著眼於長期整體利益，包括價值理念之維護，作出較多讓步。 觀光特定承諾談判係以GATS自由化規範之相互利益為基礎，若能維持各提供模式自由化之均衡，兼顧發展規範，則其相互利益堪稱顯著，有助建制新內容之推進。例如，印度對觀光服務市場開放進一步放寬，除權力結構面因素外，顯著的「促進經濟福祉」預期相互利益之存在，亦有其解釋力。較大的挑戰是觀光附件提案；此一提案因係以發展規範為基礎，故其提案內容相互利益本即較不顯著，但不僅已開發國家無利益，連許多開發中國家所關心的政策自主利益亦遭威脅。此一提案雖一度獲得熱烈討論，卻於2002年杜哈議程展開後歸於沉寂，預期之相互利益不足乃是導致其失去動能的根本原因。在杜哈議程的政治現實下，原提案國改以「示範要求文件」，在特定承諾談判中，以實現觀光附件之目標，有其相互利益之考量。 展望未來，觀光服務貿易對不同發展階段之國家，皆具有潛在利益。對於服務貿易普遍缺少競爭力的開發中國家來說，觀光服務貿易更提供了創造外匯及就業機會而消除貧窮的契機所在。隨著全球化之推進，國際觀光服務貿易的商機愈來愈多，但跨國公司運用新科技，並進行各種形態之企業整合，導致競爭更趨白熱化，因而開發中國家所擔心的經濟利益漏失亦可能加劇。不同發展階段的WTO會員，基於各自的利益認知，皆有意運用權力以影響觀光建制之演進，使其朝著有利於已的方向發展。因此，GATS觀光服務貿易建制下，無論是特定承諾談判，或如觀光附件之類的規則談判，經濟面向的動能未來將持續存在。 但談判能否推進，重要前提是提案內容是否在「促進經濟福祉」及「維護政策自主」二方面具有相互利益。觀光附件提案在杜哈發展議程中遭到冰存，主因之一是相互利益不足。隨著全球化持續推進，國際觀光所出現的經濟漏失可能更趨嚴重，倘若觀光附件內容加以修改，而能解決開發中國家既要防止經濟利益漏失，又要避免主權旁落之兩難困境，兼具經濟福祉及政策自主之相互利益，則不無可能重新取得大部分開發中國家之支持。假如進一步在內容設計上，兼顧已開發國家之立場，則立法阻力將可減少。必須注意的是，期待相互利益是某一主張被接受的基礎，然而若日後之實際相互利益，與期待利益落差過大，則可能侵蝕原先的合作基礎，而對建制造成危機。例如，國內管制規範的實踐經驗，即出現與預期相互利益不符之情形，造成規範弱化之挑戰。 未來GATS建制演進之實際進展，主要仍受權力結構之支配。就整體權力結構觀察，美國在「一超多強」結構下，仍是軍事獨強，也是WTO下整體權力最強的會員。但EC在其會員擴增為25國且進一步整合後，或許更具與美國分庭抗禮的實力；「金磚四國」整體力量上升，除了已經在WTO內的中國、印度、巴西外，尚有俄羅斯即將加入，未來可能在農業G-20基礎上，展現其在WTO下更強的的結盟實力，但由於四國的基本利益並不一致，故其未來影響尚待觀察。就目前WTO會員之權力結構而言，美國與歐盟對建制的支持，是維繫及演進的關鍵所在。整體而言，多邊自由貿易建制合乎美國及歐盟的政治經濟利益，理當可獲其支持。 再就價值理念言，會員間除了權力與利益的理性計算外，也受到價值觀之制約，而多邊自由貿易建制，本質上係以西方式自由民主理念為價值基礎，對美國及歐盟具制約力。因此，在可見的未來，不易出現類似1970年代國際貨幣建制瓦解之情形。 在觀光議題權力結構方面，從統計數字顯示的趨勢觀之，美國、EC將繼續居於主導地位。但開發中國家的權力持續上升，中國與印度皆因觀光消費能力增加而產生議題權力；中國之成長尤其值得注意。另一方面，國際觀光對「金磚四國」外匯收益及就業機會之提供日趨重要，增加其對觀光客來源國之經濟依賴。 整體權力結構與觀光議題權力結構合併觀之，美國在可見的未來仍將是談判動能的主要來源，但美國必須獲得到EC的支持，並取得G-20之諒解，始能順利推動議程，在觀光服務模式三自由化之推動，此一權力基礎將繼續存在。從G-20在坎昆會議中面對美歐聯手所展現的對抗力量觀之，縱使推動議程的力量尚嫌不足，至少有力量阻滯議程，而迫使美國及EC重視其意見。G-20未來權力可能繼續上升，但對已開發國家的依賴將加深，且因各自與不同已開發國家間的權力關係不等距，而可能造成權力結構複雜化。 「觀光談判九國立場文件」所表達的模式四自由化，及限制觀光反競爭行為等立場，若開發中國家立場一致，則有機會獲得回應，但因權力結構日趨複雜，一切仍有變數。 就國際組織面言，發展規範及其相關規則，可望繼續牽制已開發國家，而提供開發中國家，尤其低度開發國家助力，使其向已開發國家所提出之主張更具正當性。未來，只要美國無意改變其積極參與並領導WTO建制的基本政策，當不致一味推動自由化規範，而偏廢發展規範。觀察WTO近年來的演進脈絡，美國面對國際組織面向之牽制，傾向於切割開發中國家陣營，限縮發展規範的適用對象於低度開發國家，而將發展規範對其之牽制減至最低。其次，開發中國家所一再主張的GATS第4條落實或施行問題，攸關發展規範下的權利義務內容，影響議價態勢及結果，乃是開發中國家與已開發國家未來無法迴避的問題。此外，WTO決策規則及實踐，包括正式程序及非正式機制如「綠室會議」之運作，未來是否改變，對議價結果也會有影響。在司法層面，WTO爭端解決之決定，例如美墨電信案對參考文件及發展規範之見解，以及網路賭博案對國內管制例外之解釋，也可能對觀光建制演進產生影響。

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

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