In terms of the common law contract of employment an employee who is a party to a fixed term contract, unlike an indefinite period contract, cannot be dismissed. The contract terminates upon an agreed or ascertainable date determined by the parties and the conclusion of the contract. Section 186(1)(b) of the Labour Relations Act 1995, however, defines the failure to renew a fixed term contract on the same or similar terms where the employee reasonably expected the contract to be renewed, as a dismissal. In this treatise the scope and content of this provision is considered with reference to relevant case law. The factors and considerations that establish a reasonable expectation are highlighted and considered. The question as to whether or not this provision also provides for the situation where an employee expects indefinite employment is also considered and critically discussed. The author concludes that the provision should not be interpreted in such a manner that an expectation of permanent employment is created.

In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.

Labour law in South Africa has evolved over the past century at an ever increasing pace. The establishment of a democratic government in 1995 has been the trigger for a large number of labour law statutes being promulgated, particularly with reference to the laws governing the employment relationship and dismissal. From very humble and employer biased dispute resolution application under the common law of contract, labour law in this country has evolved through the various acts culminating in a labour law system which is highly regulated and codified. Dismissal for medical incapacity in this treatise is reviewed with regard to the applicable statutes and the various codes of good practice as the law has evolved and developed from the period covered by the common law through that covered by the 1995 LRA up to and including the current period. Particular attention is paid to both substantive and procedural requirements as well as the remedies applicable under the different legal regimes and the pertinent tribunals and courts. Regard is also given to the duration and causes of incapacity and the effect this may have on the applicable remedy applied by these tribunals. It will become apparant that the medically incapacitated employee occupied a relatively weak and vulnerable position under the common law as opposed to the current position under the 1995 LRA. The influence of the remedies applied by the tribunals under the 1956 LRA are clearly evident in the current regulations and codes under the 1995 LRA which contain specific statutory provisions for employees not to be unfairly dismissed. Distinctions are drawn between permissible and impermissible dismissals, with medical incapacity falling under the former. Furthermore, a distinction is drawn statutorily between permanent and temporary illhealth/injury incapacity with detailed guidelines for substantive and procedural fairness requirements to be met by employers. The powers of the specialist tribunals (CCMA, Bargaining Councils and Labour Courts) are regulated by statutory provisions and deal with appropriate remedies (reinstatement and/or compensation) a wardable in appropriate circumstances. Certain specific areas nonetheless still remain problematic for these tribunals and hence questions that require clear direction from the drafters of our law are: How to distinguish misconduct in alcohol and drug abuse cases? What degree of intermittent absenteeism is required before dismissal would be warranted? In certain other areas the tribunals have been fairly consistent and prescriptive in their approach and remedies awarded. Included here would be permanent incapacity, HIV cases and misconduct. It will emerge, however, that under the 1995 LRA the position of employees and the protections afforded them have been greatly increased.

The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.

The institutionalization of a social clause in an agreement which is binding among the signatories is difficult to support as it always entails having to touch issues like protectionism, and political, economic and cultural hegemony. The barrier of distrust between the "pro" and the "anti" social clause groups has become too deeply entrenched in the Asia Pacific to elicit a consensus that can be embodied in a ratified agreement. It is in this light that the Asia Pacific Economic Cooperation (APEC) forum seems to be a more practicable approach. This, thesis begins on the recognition that APEC exists and the Philippines is actively participating in it — the critical issue now is to make it an institution that will safeguard labor rights, not contribute further to their violation. Vital to the understanding of APEC is that it is more of a process rather than a solid institution. The APEC process is consensus-based and therefore functions well as a vessel for the harmonious and beneficial navigation by member economies of the treacherous waters of global trade. Because of the apparent voluntary character of member countries' commitments, some cause-oriented groups consider this process as an opportunity for interjecting social issues in APEC trade discussions by influencing civil society and thereby ultimately putting pressure on their respective governments to include these issues in the countries' individual commitments. This thesis is divided into four main chapters. The first chapter gives a historical analysis of the Philippines' journey toward trade liberalization in an increasingly globalizing world economy. The early stages of the country's trade liberalization program were plagued by a fundamental problem: the policies at the macro-economic level conflicted with the goal of liberalization, for they were hinged on an unsustainable level of foreign borrowing and on domestic politics of corruption and exploitation of human resource. The second chapter analyses the APEC objectives of free trade and the Philippines' trade liberalization commitments within that forum. It is argued that the country's bold and unilateral initiatives toward the fulfillment of the Bogor Declaration are unsustainable because of the government's misplaced fundamentals of competitiveness and lack of social support measures. The third chapter is a theoretical review of the linkage between the social clause and the liberal trading order with references to the North-South divide. It is argued that given a basically similar rationale — rejection of protectionism and of exploitation of labor — there could be an alternative path between the two opposing camps through which labor rights can be discussed and considered in a regional trade forum. The concluding chapter explores the different ways with which the labor movement can tap the human development and sustainable development aspects of the APEC forum. There is a need to develop and utilize a counter-consciousness in policy making which will inject a critical approach to the Philippines' ardent drive to attain global competitiveness. It is concluded that there is a possibility of creating a political space for non-government organizations (NGOs), private organizations (POs) and social movements to meaningfully participate in the APEC process and help in safeguarding social concerns, particularly labor rights. / Law, Peter A. Allard School of / Graduate

M.Phil.

M.A. / This study focuses on the development of an affirmative action strategy for a group of companies within the retail sector in South Africa. The reasoning behind the study is that enough has been said and written about affirmative action, about what it is and about what it should be. The time has now come to develop an appropriate strategy which will be accepted within the given company. The strategy must be one which can be successfully implemented in the business environment of the company concerned. A strategy has been developed around the selected company's organisational structures, people, geographic spread, culture and need to implement such a strategy. The study acknowledges that the strategy developed is relatively conservative, especially when compared to other radical or aggressive affirmative action strategies. Ultimately, the company's culture, readiness to accept affirmative action policies and resistance thereto have dictated the contents of the strategy, and the manner of its implementation. In the study, an overview is presented of literature on affirmative action as well as of current and imminent labour legislation. Cognisance is also taken of the views of other role players. The overview of the literature and the legislation form the core around which the strategy has been developed. Finally, a strategy acceptable to the company studied has been presented. The conclusions drawn from the study are that an affirmative action strategy and its implementation: remain controversial and create fears at all levels of employment; will only succeed if the strategy has the support of all role players; should be developed and assessed in accordance with the organisational culture and needs of the company wishing to introduce the strategy. The company decided that the inequities of the past should be eliminated and that discrimination at all levels of employment should be removed. Simultaneously, essential skills and experience has to be retained. The company's strategy should not involve and may not be perceived as discrimination in reverse.

O objetivo do estudo é a interpretação da expressão “relação de trabalho”, inserida no art. 114, I, da CF/88, pela EC. 45/2004. Por meio do método analítico investigam-se os fundamentos políticos, jurídicos e sociológicos que respaldam a interpretação constitucional e demarcam a função institucional da Justiça do Trabalho para a sociedade brasileira. Inicia-se com breve relato da história da Justiça do Trabalho e seu regime de competências. Segue-se apanhado geral da doutrina e da jurisprudência que dá sentido e localização ao objeto de estudo ao evidenciar os pontos de convergência e divergência dos mais variados autores que se debruçaram sobre o tema. Após localizar o leitor no objeto de estudo, parte-se para a tentativa de aprofundar as razões sociológicas e políticas que estão por trás da alteração da norma constitucional de modo a dar fundamento à conclusão que se seguirá. Concluída a análise político-social sobre o modo de ser do trabalhador contemporâneo, retoma-se o prisma estritamente jurídico para concluir que a expressão “relação de trabalho” inclui na competência da Justiça do Trabalho todas as demandas promovidas pelos trabalhadores em face dos respectivos tomadores de serviço, independentemente da existência de relação de emprego a partir, única e tão-somente, do pressuposto do trabalho prestado por pessoa física, de um lado, e, de outro, a conjugação dos pressupostos da onerosidade ou da profissionalidade. No que tange às relações de consumo, não têm pertinência na delimitação do alcance da norma constitucional, mas podem ser relevantes no julgamento de questões prejudiciais incidentais, quando a relação de trabalho contiver em seu bojo também uma relação de consumo.

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