The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.

South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).

The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.

Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.

M.Phil. / The Social Plan is an alternative retrenchment process to section 189 of the Labour Relations Act No. 66 of 1995 as amended. When the now defunct Mpumalanga Development Corporation was dismantled in 1997, following the speech of the then Premier of the Province, of the 5 th December 1996, South Africa saw the Social Plan route being followed for the first time in its short democratic history. While the Social plan is the better of the two routes, it still looks good on paper, but has been let down by the trade unions, the employers, the development corporations and the individual beneficiaries themselves in this case. The sad part of this is that the Government departments and the development corporations are the custodians of the objectives sought and enshrined in the Social plan. Their failure to observe this fact and live up to the expectations it genders is itself an indictment on these stakeholders. The dissertation deals with the deeper analysis and findings of the events and the omissions that took place in pursuit of the implementation of this novel concept in a real life situation. Definite recommendations are made within the text that contributes to how the effort can be rescued for the benefit of the retrenchees and the economy as a whole. The approach in this work has taken the form of a literature review as well as a field survey. The field survey did not yield a very high sample, but 20 respondents, who are former employees who were retrenched following the Social Plan route, were interviewed. These respondents had been located in the former KwaNdebele and former KaNgwane regions of the Mpumalanga Province. The main problem that resulted in this research was that the country as a whole is suffering a very high rate of unemployed at 37.5% (according to the 2001 Census Report) in the Mpumalanga Province. While that needs some attention, there is an increase in the retrenchments coming as a result of various global and domestic factors. These collectively impact the employment situation more adversely than positively. The social plan being one tool chosen to alleviate the problems identified in its own self contained rationale for being, has failed to live up to the expectations of all the stakeholders affected by it. The experience of the stakeholders in the first attempt to implement the social plan, have defeated the very objectives of the social plan, which include, inter alia, the following: a ...to avoid job losses and employment decline wherever possible. In cases where large job losses are unavoidable, it would seek to actively manage retrenchments and ameliorate their effects on individuals and local economies". The findings in this study revealed that the social plan rather deepened the problem and exacerbated rather than alleviated it. This adversity is not due to the nature of the social plan as an approach and a route to meeting the aims of its creation. It is rather reflective of the way and attitude with which parties to the social plan failed to apply their best abilities and efforts in its application. The dissertation also touches on entrepreneurships, Post employment and the currently raging broad based black economic empowerment drive that has taken the country by storm in various sectors. The attempt by this drive is to address the possible acceleration of the integration of black people into business at all levels and not just at SMMEs or post employment. One could say the whole BBBEE drive seeks to address even the pre-employment era in the life of a black South African.

No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

M.Phil. (Employment Relations) / Outsourcing as a strategy has been utilised by many organisations as a strategic initiative to improve core business functions and reduce costs. In the South African context, outsourcing includes the forced transfer of employees from one organisation to another. This automatic transfer is facilitated through Section 197 of the Labour Relations Act of 1995. In principle employees have a choice to seek employment elsewhere, but such a move is often restricted by long tenures of service, the lack of opportunities in the labour market, the psychological contract of employees with their employer, social affiliation with colleagues, perceived job security and comfortableness with familiar surroundings. Due to the forced nature of the employment transfer, employees would be subject to a change in identification or belonging, organisational culture, structures, management, operating principles and salary structures. These changes may significantly affect productivity, employee commitment and job satisfaction. Research purpose The research study explores the experiences of employees in an outsource transfer conducted under the ambit of Section 197 of the Labour Relations Act of 1995. The study reconnoitres employees‟ reactions to the forced organisational change so as to identify important psychological and organisational processes. Motivation for the study Despite the increasing practice of outsourcing in South Africa and abroad, limited research has been conducted on the experiences of employees during an outsource transfer. Employees that have been subject to an outsourcing transfer would have experienced a grave impact on their employment behaviour and attitudes. This would affect their relationship with previous colleagues, career development, contribute to lower levels of commitment and negatively influence their psychological contract. All these elements may influence the success of the outsourcing of business and should be taken into consideration when organisations decide to embark on outsourcing parts of their business. This study explores the employee‟s experiences during such a transfer of employment as a means to provide insight into the effect these experiences may have on the success of an outsource event. This study would aid management, human resource professionals, organisational development practitioners and scholars in understanding the impact of an outsourcing business decision on employees. Research Approach In the study, I followed a qualitative research approach. I aligned myself with the constructionist research tactic and explored the research participants‟ social construction of the outsource transfer experience. The study was conducted using as a case study a South African information-technology outsource service provider. Case-study research methodology was employed and seven research participants provided their experiences in unstructured interviews. Data was also gathered through participant observation and human documents such as e-mails. Main Findings On analysing the research data, the research participants‟ experiences could be grouped according to phases in the outsource transfer, themes and categories of constructs. These themes, categories and constructs were related to concepts and theories that had emerged from literature. This in turn culminated in the development of an Outsourcing Transition Model which integrated the psychological theory in literature and the concepts that had emerged from the research. The model provides for a holistic view of psychological theory within an operationally categorised phased approach that is easy to interpret and apply.

M.Comm. / Collective bargaining has undergone substantial changes in South Africa. Not alone have we seen dramatic political change but a totally new rule of law. The Interim Constitution was but the beginning. With the promulgation of Act 200 of 1994 a new era was entered into, not only for South Africa, but in particular, for collective bargaining in South Africa. With the final Constitution, Act 108 of 1996, taking effect on 4 February 1997, a new era arrived for collective bargaining. Since the passing of the Interim Constitution in 1994 there have been many changes. Various changes in the legislation occurred, amongst others, (a) the Act on National Economical Development and Labour, No. 35 of 1994, (b) the New Act on Labour Relations, No. 66 of 1995, (c) the New Act on Basic Conditions of Employment, the New Act on Public Holidays, No. 36 of 1994, (d) the Occupational Health and Safety Act, No. 85 of 1993, (e) the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 and the like, have signalled the changes in the new collective bargaining arena. A vast amount of sections in the Constitution's Bill of Rights can be made applicable to collective bargaining. It makes one realise the importance of this subject. Section 23 of the Constitution entrenches the fundamental right of collective bargaining. This right is not only entrenched in the Constitution, but made practical under the new Labour Relations Act, Act. 66 of 1995. Of particular importance are the structures within which collective bargaining under the new Act are envisaged. The Communication sector, and in particular the Telecommunication sector in South Africa, finds itself in a very regulated environment. Exclusive rights have been granted to TELKOM for another four years, which was initially five years starting in 1997, and expiring in 2001. The Communication Workers' Union, the dominant union in the Telecommunication sector, is trying to expand its power base and is looking to gain control of the Telecommunication sector as a whole.

The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.

M.Comm. / With the adoption of the 1995 Labour Relations Act (LRA) and the creation of the Commission for Conciliation, Mediation and Arbitration (CCMA), expectations ran high that the era of workplace conflict that had characterised previous labour dispensation would come to an end. The reality, however, is that parties have abdicated their responsibility in dispute-resolution, and have transferred this responsibility to the CCMA and Bargaining Councils. The purpose of this study was to gain insight into the perceptions of users of the current model with regard to its effectiveness, flaws and challenges. Based on the data received, this study presents a case for a new approach to discouraging disputes from being taken beyond the level of the workplace. The following research questions were formulated: Given the prevailing lack of ownership by parties over dispute-resolution and the resultant rise in case load and costs, what alternative strategies could be adopted? With the introduction of such new strategies, what dispute resolution model would be appropriate to enable the parties to focus on the core issues and also reduce costs? These questions are based on the set of main problems and sub-problems. The main problems are the low dispute-resolution/settlement rate (the conciliation stage being a mere formality), even when arbitration takes place; and the lack of ownership for dispute prevention by line managers and organised labour. In collecting data I followed the triangulation approach which combined both qualitative and quantitative research. During the qualitative stage, I collected data by using unstructured interviews and audio-recording the interviews with the Secretary of the PHSDSBC. I used quantitative methods to distribute participants’ agenda points and to record the numbers returned. The same method was used to analyse the patterns and themes emerging from data collected. Forty-nine negotiators, shop stewards, human resource managers across the nine provinces, and staff in the office of the Secretary of the PHSDSBC, were selected. Because participants in the study were distributed over a wide area, my level of physical contact with them was restricted to the normal business schedules of the Bargaining Council, during teambuilding exercises, and during Employer Caucus meetings. As a participant in these meetings, I was able to adopt an auto-ethnographic stance. I analysed the data, using graphical depictions, and categorised it into thoughts and later into themes. The findings indicate that the current dispute-resolution system model, being reactive in its application, is time-consuming for the both employee and the employer.