Magister Legum - LLM / This research paper investigated whether there are any limitations or restraints in the Labour Relations Act 66 of 1995, which possible keeps an employer from outsourcing functions or parts of a business to a third party. / South Africa

Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.

The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.

Section 29(1) of the Constitution of the Republic of South Africa (the Constitution) guarantees the right to a basic education, including a basic adult education and further education. In realising this right, the State is obliged to provide financial and human resources in a manner that will transform society as a whole and deliver a better life for all citizens. The human resources in the main refer to educators. Education is one of key priorities of the present government to the extent that President Zuma has instructed that a presidential commission be established to look into the conditions of service of public servants and in particular that of educators. The International Labour Organisation (ILO) has proposed the Decent Work Country Programmes to help countries align their policies with the international goal of the achievement of Decent Work for all. South Africa has done a lot of work in this regard; however the main challenge remains with the implementation and acceptance of such policies by the major stakeholders especially the trade unions. This treatise investigates the impact of the Decent Work Agenda (DWA) on the job security and provisioning of educators in South Africa. It also explores the conditions of service of temporary educators and those educators who are teaching in the rural areas under extremely difficult conditions in comparison with their counterparts in urban areas. This treatise also examines the status of social dialogue in the education sector and the impact of same on collective bargaining. This treatise recommends that the utilisation of the services of temporary educators need to be regulated to address the continuous extension of temporary contracts that is impacting negatively on job security. It also suggests that urgent measures in the form of norms and standards be determined to improve the working conditions of educators who are teaching in rural areas under very difficult circumstances.

This dissertation studies the effects of changes in labour legislation on strike activity in British Columbia during 1945-75. It develops two theories of strike activity and uses regression analysis where dummary variables model the effects of changes in labour legislation on strike activity. The two theories suggested economic determinants of strike activity which were used in the regression analysis. One theory, a strike-as-an-investment theory of bargaining under uncertainty, is applied to first agreement strikes and to contract renewal strikes. The other theory, a "pressure-valve theory" which envisages strikes as means for releasing pent-up frustrations, is applied to strikes during the term. Both theories build upon the theories that preceded them but modify their predecessors. For instance, each theory yields an economic determinant of strike activity that was not derived explicitly from the theories that preceded it. Methodologically, this research project departs in at least four ways from the research project it most closely resembles: the 1969 study by Ashenfelter and Johnson of the labour law-strike relationship in the United States. First, strike activity is classified by contract status: first agreement, contract renewal and during the term. Second, a different set of economic determinants is applied to strikes during the term, as opposed to strikes that issue from interest disputes. That is, the two theories suggest different sets of economic determinants. Third, contract expiry data were gathered and used to construct incidence measures of strike activity, such as the ratio of contract renewal strikes to expiries. (Incidence measures are empirical estimates of the probability that strikes will take place.) Fourth, not just one, but two hypotheses are tested concerning the effects of changes in labour legislation on strike activity. One hypothesis, the conventional hypothesis, tests whether or not the level of strike activity changes while the new statute is in force. The other hypothesis tests whether or not one- or two-year changes in the level of strike activity accompany statutory change. In addition, actual profit data were gathered and used as an indicator of firms' "ability to pay" and/or their ability to withstand strikes. It is inferred from the regression results that changes in labour legislation had some effect on strike activity. However, statistically significant effects were not obtained for the theoretically most appealing strike measures-incidence measures. There is some evidence that recent labour acts of British Columbia were associated with a relative decline in the number of strikes—particularly of strikes during the term and contract renewal strikes. These statutes were less interventionist, less adjudicative and, in practice, less punitive than former acts of British Columbia. Subjective assessments indicate, in particular, that there need not be a causal relationship between changes in labour legislation and the perceived decline in wildcat strikes. / Arts, Faculty of / Vancouver School of Economics / Graduate

M.Phil. / Worldwide governments and organisations are restructuring, creating the integrated society and global network. According to Handy (1996:23) it is happening before our eyes: 'A vast reconfiguration of world of work. The entire floors of office building are emptying, whole layers of management are going out the window, full echelons of support staff are being told to support themselves'. The world of work is therefore changing and the power behind this move is heightened competition in the global market place where government and companies strive for the implementation of the 'best business practice'. Competition is forcing organisations to slim down their employment numbers to hard core of operatives whose function serve the customer satisfaction and this results in the extrusion of personnel. Little doubt remains that job permanency, job security and general employment have become a custom and not a legal right. The governments and organisations are embedded in the broader community and have responsibility to stabilise the broader society. It is important for the government and the private sector to prepare employees for the post employment career path. The lesson learnt in the world's economic giants is to stimulate job creation by means of well-planned entrepreneurial culture founded in thriving for small business development. Entrepreneurial culture is the fundamental base for the economic development which encourages people to be more independent and responsible than to be beggars. The stimulation of the job creation by means of a well-planned entrepreneurial economy is founded in economically sustainable small and medium size enterprise. According to the Global Entrepreneurship Monitor (GEM), Executive Report (2004:38), the relationship between the entrepreneurship and economic growth are joined by the virtuous circle. This means that entrepreneurship contributes to economic growth and the level of a nation's wealth that create employment opportunities. In the Latin America the Report found that the many institutions which should have been supporting entrepreneurship are under-developed, and the government policies tend not to be supportive or they are inefficient in its promotions. The Report also found that labour legislation and taxations place high burden on entrepreneurs and the protection of the intellectual property rights is inadequate. The commercial and professional infrastructures are also poor and need development. The organisations and government worldwide are striving for the best practice operations that would sustain the economy and job creation. According to the Report the traditional analyses of economic growth tend to focus on large corporations and neglect the innovations and competition that small start-ups contribute to the overall economy. The GEM considered that activities associated with established firms and those related directly to the entrepreneurial process as the two parallel sets of interrelated activities for the national economic growth. The large corporations influence the economic growth primarily through the construction of new establishment which in turn create job opportunities.

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This thesis traces the history of labor legislation from colonial America through 1947.

published_or_final_version / Public Administration / Master / Master of Social Sciences