Thesis (doctoral)--Universiẗat Göttingen, 2005. / Includes bibliographical references (p. 263-279) and index.

The thesis explores the challenges faced by health and safety law in the UK as a consequence of the continuous changes in the employment relationship. This primarily covers the growth of the different forms of non-standard work. Health and safety law developed through a number of socio-economic changes in the UK. It has moved from only covering particular areas and particular classes of workers in the nineteenth century to wider areas of occupational health and safety and to include more of those at work. The thesis sets out the issues surrounding non-standard work arrangements and how they might affect the application of health and safety law. Key case-law is examined and the legal changes in the area of health and safety carefully analysed. Research has been carried out by others concerning the reasons for and extent of the changing nature of work as an indicator of the changes that took place in the labour market in general; but the research in this thesis concentrates on how the application of health and safety law is challenged by such changes. The central hypothesis of the thesis is that non-standard work by its very nature might put those who are employed under its various types at more risk than their counterpart standard workers. This hypothesis is developed and explored through the field-work. The field-work took the form of a postal questionnaire to workers in the UK in geographical areas selected for their differing characteristics together with some semi structured interviews which sought to introduce a qualitative data element to the quantitative data in order to enrich and elaborate upon the findings of the questionnaire. Analysis of the completed and returned questionnaires revealed that in today's workplace the nature of risk has changed, with an increase in the psychological risk related to work. Both groups of standard and nonstandard workers suffered from stress-related illness. This illustrates the complexity of the concept of vulnerability and how that might challenge the application of health and safety law and affect its efficacy. A number of unexpected issues surfaced through the field-work, such as that working in the different types of non-standard work were effectively involuntary for some of those who chose to work this way. The main reason for their decisions was to be able to provide for the family income as well as to have more control over work and the ability to combine work with other responsibilities including domestic duties. Despite the relatively low number of non-standard workers who participated in the postal questionnaire, it seems that they are in a better position than was hypothesized at the outset, before the field-work took place. Analysis of the semi-structured interviews revealed that interviewees had considerable knowledge and awareness about their employer's general duties in terms of risk assessment and safety training in addition to other significant aspects. This applies to both standard and non-standard workers, which indicates the important improvement in the management of occupational health and safety. However, a serious issue was common to most of those who suffered accident and/or ill-health from both groups of standard of non-standard workers: not reporting their experiences to their employers. In addition, many of those workers did not seek legal advice following their accident and/or ill-health because of fear and uncertainty about their employers' reaction. The thesis concludes with some reflections on the effectiveness or otherwise of health and safety legislation.

LL.M / The provisions of South Africa’s law on dismissal based on operational requirements are frequently relied on by employers who dismiss employees to further various objectives. Against this background, this dissertation critically analyses the law providing for employers to rely on their operational requirements as a basis for fair dismissal, and the legal principles on selecting employees for dismissal based on operational requirements. As part of this analysis, the approach in South Africa is compared with the approach in Germany, the United Kingdom and Australia. The analysis is based on a critical literature study that includes a consideration of the relevant legislation, treaties, conventions, directives, case law, recommendations, textbooks, journal articles and statistical sources. This dissertation draws broad conclusions regarding the contents, effects and shortcomings of the aspects of South African law on dismissal based on operational requirements that fall within its scope. In broad terms, this dissertation finds that the conceptual model underpinning the South African regime on dismissal based on operational requirements, is intrinsically sound, but that certain aspects require reform. It finds further that South Africa’s law on dismissal based on operational requirements generally provides employees with a relatively high degree of employment security, and severely limits managerial prerogative. This dissertation concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employee(s), and the requirements regarding selection criteria that fail to include consideration of the impact of dismissal on individual employees and their dependents. This dissertation makes proposals for reform in these areas.

The objective of this study is to conduct a survey concerning the perceptions of educators in the Queenstown education district of the labour dispute resolution system. The education department is one of the biggest departments in the Eastern Cape’s Provincial Administration system. The likelihood of disputes is high when there are many employees. The focus of the study therefore is on how educators perceive the role of the department in terms of ensuring that labour disputes with the department are resolved efficiently and speedily. The advent of a democratic dispensation resulted in the ushering in of progressive labour legislation such as Labour Relations Act 55 of 1995. The objective of this Act is to facilitate economic development, social justice, labour peace and democratization of the workplace. In other words this Act gave birth to the manner in which labour disputes should be resolved. The study was carried out not only to explore the perceptions of educators but also with a view to making recommendations on the findings in order to help contribute towards labour peace and productivity in the workplace. The attitudes of one hundred and forty-one educators were surveyed via questionnaires and six educators who have had labour disputes with the department were interviewed. The key findings of the study revealed that both the educators who were surveyed and those interviewed lack confidence in the effectiveness of the labour dispute procedures in the district; they perceive the system as being inaccessible to them; time taken to resolve disputes is too lengthy; the system lacks necessary independence from the department of education or government and the department is seen as not adhering to its own policies and legislation. Hence there are many disputes and there is a great need for more awareness and for improved training in handling labour dispute resolution systems for district officials and educators. The study recommends more awareness and training sessions for both district officials responsible for labour relations and educators at large. It also calls for an increasingly proactive role by teacher unions in partnership with the department of education to avoid labour disputes. Although the findings cannot be generalized toother districts of the province, they do however highlight critical areas in labour dispute resolution where attention can be paid and focus made in order to ensure labour peace in the workplace for improved productivity and effective teaching and learning.

Our employment law which originates from the common principles has in recent years undergone significant changes. Under common law the employers and employees capacity to regulate their relationship has always been limited. The recommendations of the Wiehahn Commission introduced amendments to the Labour Relations Act of 1956. The introduction of the unfair labour practice concept and the establishment of the Industrial Court was a direct consequence of the recommendation of the Wiehahn Commission. The Industrial Court together with the higher courts developed new principles regarding unfair labour practices. In the process, a wealth of unfair labour practice jurisprudence was developed by these courts. However, the unfair labour practice definition did not include dismissals. The coming into power of the democratic government played an important role in transforming our labour law system. After the Labour Relations Act 66 of 1995 was implemented on 11 November 1996, the old Labour Relations Act of 1956 was repealed. The law on retrenchment forms an integral part of our law of dismissals. The South African labour market has in the past years been characterised by restructuring and consequently retrenchment of employees. In most cases, employer’s decisions to retrench were challenged by the employees and unions in our courts. Section 189 of the Labour Relations Act of 1995 stipulates procedures to be followed by an employer when contemplating dismissal of one or more employees for reasons based on operational requirements. The employer does not only have to follow the procedures set out in section 189 to render dismissals for operational reasons fair, but there must also be a valid reason to dismiss. The courts have always not been willing to second-guess the employer’s decision to retrench provided that the decision is made in good faith. Whilst section 189 deals with small-scale retrenchments, section 189A applies to large-scale retrenchments. These are employers who employ more than 50 employees and who contemplate retrenchment of more than the number of employees provided for in section 189(1)(a) or (b). Section 189A also introduced a facilitation process to be conducted in terms of regulations made by the Minister of Labour. The amendments to section 189 should be seen as an attempt to tighten the procedural aspect of retrenchments. The new law on retrenchments is a product of tough negotiations between the social partners at NEDLAC in which compromises were reached. There are still certain areas of concern to both labour and business. In those areas in which uncertainty still exists, the courts will be required to provide some guidance.

It is beyond debate that each job lost due to restructuring means a lost taxpayer, and hence lost tax revenue, more poverty and increased crime. South Africa and the world at the large have to deal with this problem head – on in view of the acute need to better the lives of people and encourage investment. Technological advancement should be embraced and used to benefit people and stimulate economies, and that is further challenge in its own right. In Chapter 8 of the White Paper on Transformation of the Public Service dated 15 November 1995 (hereinafter, the White Paper), it is said that: “The Government of National Unity has embarked upon a concerted and comprehensive programme of administrative restructuring and rationalisation (my emphasis) with the object of: (a) Creating a unified and integrated service. (b) Creating a leaner and more cost-effective service.” Various strategies are listed in the White Paper, and the fundamental approach advocated is to right size, adjust remuneration structures, retrench and contract – out services.

M.A. / For many years national legislation has made little to no effort to control the conditions of employment for atypical labour. In fact, such labour has mostly operated withm the twilight zone of the law. Generally ill-defined, with conditions of employment remain relatively vague. This has not only been the case within South Africa, for internationally the struggle headed by the International labour Organization has indicated a similar lack of regulation of such conditions of employment. For the sake of clarity, it must be repeated that this study has no intention of elaborating in any further detail, on the subject of atypical labour, other than in as far as such labour affects labour braking activities Therefore. some description and discussion of the various forms of atypical labour will follow, however only in as much as this will encourage a better understanding of labour braking, as an employment practice.

Since its transition to a free and democratic society in 1994 South Africa has increasingly become part of the global community. South African goods and services flow freely across borders to other markets and likewise goods and services from outside South Africa flow into the country. The South African economy is judged according to how it competes in the global economy placing increasing pressure on South African businesses and the economy generally to be competitive. Government needs to create the economic environment in South Africa which allows businesses to be in a position to compete, by introducing appropriate economic and monetary policies. Recent policy decisions have tended to focus on price control and stability and stimulating economic growth. These policies, it is hoped, would lead to sustained economic growth and the creation of employment. One particular area of concern is government’s lack of adequate focus on unemployment in South Africa. The unemployment rate has increased since 1994 and specific labour market policies, aimed at stimulating employment creation, are required. The South African labour market is characterised by a high level of institutional regulation through labour legislation which, while protecting the rights of workers, tends to create barriers to employment creation. The issue is whether South African labour legislation is inflexible and whether that inflexibility is a hindrance to the creation of employment and the reduction of unemployment. This study seeks to explain and evaluate the role of South African labour legislation and the effect it has on employment creation and the high rate of unemployment in South Africa. / Prof. S. Chetty

LL.M. / Age discrimination first arose in the post-industrial revolution period. Prior to that most people earned a living through a connection to the land. Agriculture was a family affair with all members contributing to the task, from the youngest to the oldest, according to their abilities. As the ability for labour waned, older people tended to be cared for by their families. Those who did not work on the land were mostly self-employed artisans and crafts people, such as cobblers, carpenters and blacksmiths, and they worked to whatever schedule they wished. Also, tools used at that time were different to those used today and expertise was achieved through age and experience, so that a tradesman such as a goldsmith was a more skilled artisan if he had 30 years experience than an associate with considerably less experience. Age discrimination in employment just did not occur because there was little employment by large impersonal corporations.

M.Comm. / The purpose of this paper is to describe poverty reduction, the essentiality of labour, and entrepreneurship as a way of creating opportunities, the need for labour law in the workplace, while referring to some of the constraints it may place on employers, labour practices and finding a win-win solution for all three players within the labour relationship to the benefit of the greater economy as a whole. Tackling unemployment is arguably South Africa's most important priority, while realising that the country will only attract investment in labour-absorptive sectors if it is competitive in terms of labour unit costs. Government has committed it to an employment strategy framework, while at the same time challenging business and labour to participate. There is a need for capable individuals who are prepared to accept the brunt of risk, to assist in job creation and assist in positive growth in the economy. We are part of a capitalistic SOCiety. Entrepreneurship offers the total solution. It places no risk on government or the employee, while having the ability to assist in the creation of jobs and with the alleviation of poverty. Entrepreneurship needs to be positively influenced and encouraged so as to fill the void emanating from high unemployment, and help the economy further. Potential entrepreneurs find themselves lost in a maze of legalities and tax laws, coupled with the unavailability of capital and heavy taxes on any positive returns, creating a barrier to entry for entrepreneurs. Labour is a very real necessity in the need for progress and actual implementation of opportunities. The essence of labour laws is to ensure no exploitation of workers, create fair working conditions and reward for the worker. South Africa has a very turbulent labour history. The characteristics of the labour market are commitment to the social contract; removal of obstacles in the way of international trade and production; reduction in unemployment. There are three players in the labour market, being employers, employees and government, who all have to contribute their shares before successful production can take place.