Thesis (doctoral)--Universität, Genf, 2005. / Includes bibliographical references (p. xv-xxiv).

Thesis (doctoral)--Universiẗat Göttingen, 2006. / Includes bibliographical references (p. 269-283).

The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.

A central concern of this thesis is the expansion, distribution and control of 'non-standard' employment in Namibia since independence. The employment relationship has assumed various historical forms under capitalism, each of which corresponds to a specific mode of regulation with distinct structural dynamics. An attempt is made to extend the regulation approach 'downwards' to account for the problem of order in the workplace and to place the employment relationship within its own regulatory framework. The point of departure in this study of the dynamics of labour regulation is the contradictory nature of labour's incorporation, allocation, control and reproduction within the labour market. The employment relationship is never only an economic exchange, but is also mediated through an institutional framework that connects the processes of production and social reproduction, and regulates conflicting interests inside and outside the workplace. This relationship, as critical realists have pointed out, is a product of the indeterminate intersection of several generative structures. The roots of these generative structures can be traced to three sets of social processes: the processes of production and the structuring of labour demand; the processes of social reproduction and the structuring of labour supply; and the forces of regulation. Non-standard employment is viewed as a particular social and spatio-temporal 'fix' for the various regulatory dilemmas generated by the standard employment relationship. This conception underscores the fact that a national system of labour regulation decisively shapes the conditions under which employers are able to casualise a part of their workforce. The differential experience across national boundaries suggests that analytical space needs to be provided for systems of labour market regulation which may either accentuate or moderate pressures for casualisation. Segmentation on the demand side of the labour market is explored through an analysis of the types of non-standard jobs created in different economic sectors. The various forms of employment 'flexibility' tend to vary in importance according to the specific manner in which a firm chooses to compete. Consequently, non-standard employees are distributed in a complex and uneven manner across industrial sectors and the occupational hierarchy, and face a diverse range of possibilities and liabilities that shape their levels and forms of participation in the labour market. By counteracting the homogenisation effects of labour law and collective bargaining, the mobilisation of cheap and disposable labour through non-standard employment contracts allows employers much greater discretion in constructing the wage-effort bargain. With non-standard employment, social and statutory regulation is weak or underdeveloped and hence managerial control is autocratic, with a significant contractual component. Although the changing social composition of the workforce associated with employment 'flexibility' poses serious challenges to the modes of organisation that have long served the labour movement, trade unions in Namibia and elsewhere have been slow to respond to the threats of casualisation. Of concern here, is the extent to which attempts to promote the security of existing union members is compatible with attempts to organise non-standard employees. This thesis shows that the unions have developed a complex amalgam of strategies in their efforts to regulate non-standard employment relationships.

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.

Diante do fato de muitos doutrinadores brasileiros apontarem como saída ao Direito do Trabalho o incremento das negociações coletivas, a dissertação traz como problema principal a verificação das perspectivas atuais das mesmas no Estado do Rio Grande do Sul. Enfoca, também, as repercussões dos postulados pós-modernos sobre a antiga contratação coletiva de trabalho e projeta, inclusive, algumas inovações em matéria ambiental. A fim de responder ao problema principal, a pesquisa apóia-se em 1) atividade de campo, através de realização de entrevistas com dirigentes sindicais; 2) análise dos instrumentos coletivos firmados pelos sindicatos; e 3) o cotejo entre as entrevistas colhidas e os instrumentos firmados. Para a análise dos dados obtidos, utiliza-se a teoria sistêmica de Niklas Luhmann. Por fim, conclui-se, em linhas gerais, que não há repercussões dos postulados pós-modernos sobre as cláusulas dos instrumentos analisados, já que, unanimemente, dão superioridade à repetições de textos de lei ao invés de opções inovadoras. / Submitted by Marcelo Teixeira (mvteixeira@ucs.br) on 2014-05-29T16:11:44Z No. of bitstreams: 1 Dissertacao Filipi Diffini Santa Maria.pdf: 3166039 bytes, checksum: f4c1545b4aa312a470e605ddc977a0ea (MD5) / Made available in DSpace on 2014-05-29T16:11:44Z (GMT). No. of bitstreams: 1 Dissertacao Filipi Diffini Santa Maria.pdf: 3166039 bytes, checksum: f4c1545b4aa312a470e605ddc977a0ea (MD5) / Considering the fact that many brazilians writers say that the labour law should increase itself through the collective bargaining, the study has as its main problem the verification of the current prospects of the bargaining in the state of Rio Grande do Sul. Also focuses the impact of the ideas of the post modernity in the labour law, beyond some innovations in environmental matters. To reach the main problem, the search is based on 1) interviews with union leaders, 2) analysis of collective instruments signed by unions and, finally, 3) the comparison between interviews and the instruments signed. For the analysis of data obtained, we used the systemic theory of Niklas Luhmann. Finally, it shows that there are no effects of post-modern in the collective bargaining, but repetition of the law instead of innovative options.

Esta dissertação analisa o meio ambiente do trabalho no Brasil, dando especial ênfase para o trabalho na construção civil, através da análise de dados oficiais sobre os acidentes de trabalho e as doenças profissionais deste setor, bem como suas principais irregularidades e as formas de combatê-las. Além disso, também é analisada a aplicação dos Princípios de Direito Ambiental na promoção de um meio ambiente de trabalho saudável e adequado no setor da construção civil, bem como é realizado o estudo de um caso concreto. O objetivo geral da presente pesquisa é analisar a evolução do meio ambiente do trabalho no Brasil, à luz das disposições legais e dos princípios de direito ambiental, procurando ressaltar a indissociável relação do meio ambiente de trabalho com a saúde, a segurança e a dignidade do trabalhador. O objetivo específico, consiste em contribuir com a criação de uma nova cultura de prevenção contra os riscos inerentes ao meio ambiente do trabalho na construção civil. Foram utilizados neste estudo os métodos de pesquisa bibliográfica e dedutivo, na análise e na interpretação dos dados coletados. A conclusão do presente estudo é de que o meio ambiente do trabalho na construção civil brasileira é inadequado para garantir a saúde e a segurança do trabalhador brasileiro, por diversos fatores que são analisados na dissertação. Através do presente estudo se pretende despertar sobre a importância do tema, que merece toda a atenção por parte do Estado e da sociedade, pois repercute não só para a vítima e para a sua família, como para toda a sociedade que é responsável pelo custeio social. / Submitted by Ana Guimarães Pereira (agpereir@ucs.br) on 2015-09-21T14:09:12Z No. of bitstreams: 1 Dissertacao Ane Graziela Stahlhöfer Machado.pdf: 942054 bytes, checksum: 346089e1ef9207c1d079958363df310c (MD5) / Made available in DSpace on 2015-09-21T14:09:12Z (GMT). No. of bitstreams: 1 Dissertacao Ane Graziela Stahlhöfer Machado.pdf: 942054 bytes, checksum: 346089e1ef9207c1d079958363df310c (MD5) / This dissertation analyses the labor environment in Brazil, emphasizing particularly the building construction, through official data analysis concerning work accidents and the main professional diseases in this sector, as well as their irregularities and means of addressing them. Besides, the application of Environmental Law Principles is analysed in order to promote a healthy and adequate labor environment within the building construction sector, as a study of a concrete case is performed. The general objective of the present research is analysing the evolution of the labour environment in Brazil in the light of legal provisions and environmental Law, aiming to emphasize the inseparable relationship of labour environment with health, safety and labour dignity. The specific objective consists in contributing with the creation of a new prevention culture against work environment inherent risks within the building construction. In this study, the methods of bibliographical research and deductive were used for the analysis and the interpretation of collected data. The conclusion of the present study points that the work environment within Brazilian building construction is inadequate to ensure health and safety of Brazilian labour due to several factors that are analysed throughout the dissertation. By way of the present study, it is intended to arouse interest about the theme and its importance, which deserves all the attention by State and society once it has effects not only for the victim and his family, but also for the whole society which holds the responsibility for the social costs.

Esta dissertação analisa o meio ambiente do trabalho no Brasil, dando especial ênfase para o trabalho na construção civil, através da análise de dados oficiais sobre os acidentes de trabalho e as doenças profissionais deste setor, bem como suas principais irregularidades e as formas de combatê-las. Além disso, também é analisada a aplicação dos Princípios de Direito Ambiental na promoção de um meio ambiente de trabalho saudável e adequado no setor da construção civil, bem como é realizado o estudo de um caso concreto. O objetivo geral da presente pesquisa é analisar a evolução do meio ambiente do trabalho no Brasil, à luz das disposições legais e dos princípios de direito ambiental, procurando ressaltar a indissociável relação do meio ambiente de trabalho com a saúde, a segurança e a dignidade do trabalhador. O objetivo específico, consiste em contribuir com a criação de uma nova cultura de prevenção contra os riscos inerentes ao meio ambiente do trabalho na construção civil. Foram utilizados neste estudo os métodos de pesquisa bibliográfica e dedutivo, na análise e na interpretação dos dados coletados. A conclusão do presente estudo é de que o meio ambiente do trabalho na construção civil brasileira é inadequado para garantir a saúde e a segurança do trabalhador brasileiro, por diversos fatores que são analisados na dissertação. Através do presente estudo se pretende despertar sobre a importância do tema, que merece toda a atenção por parte do Estado e da sociedade, pois repercute não só para a vítima e para a sua família, como para toda a sociedade que é responsável pelo custeio social. / This dissertation analyses the labor environment in Brazil, emphasizing particularly the building construction, through official data analysis concerning work accidents and the main professional diseases in this sector, as well as their irregularities and means of addressing them. Besides, the application of Environmental Law Principles is analysed in order to promote a healthy and adequate labor environment within the building construction sector, as a study of a concrete case is performed. The general objective of the present research is analysing the evolution of the labour environment in Brazil in the light of legal provisions and environmental Law, aiming to emphasize the inseparable relationship of labour environment with health, safety and labour dignity. The specific objective consists in contributing with the creation of a new prevention culture against work environment inherent risks within the building construction. In this study, the methods of bibliographical research and deductive were used for the analysis and the interpretation of collected data. The conclusion of the present study points that the work environment within Brazilian building construction is inadequate to ensure health and safety of Brazilian labour due to several factors that are analysed throughout the dissertation. By way of the present study, it is intended to arouse interest about the theme and its importance, which deserves all the attention by State and society once it has effects not only for the victim and his family, but also for the whole society which holds the responsibility for the social costs.

Diante do fato de muitos doutrinadores brasileiros apontarem como saída ao Direito do Trabalho o incremento das negociações coletivas, a dissertação traz como problema principal a verificação das perspectivas atuais das mesmas no Estado do Rio Grande do Sul. Enfoca, também, as repercussões dos postulados pós-modernos sobre a antiga contratação coletiva de trabalho e projeta, inclusive, algumas inovações em matéria ambiental. A fim de responder ao problema principal, a pesquisa apóia-se em 1) atividade de campo, através de realização de entrevistas com dirigentes sindicais; 2) análise dos instrumentos coletivos firmados pelos sindicatos; e 3) o cotejo entre as entrevistas colhidas e os instrumentos firmados. Para a análise dos dados obtidos, utiliza-se a teoria sistêmica de Niklas Luhmann. Por fim, conclui-se, em linhas gerais, que não há repercussões dos postulados pós-modernos sobre as cláusulas dos instrumentos analisados, já que, unanimemente, dão superioridade à repetições de textos de lei ao invés de opções inovadoras. / Considering the fact that many brazilians writers say that the labour law should increase itself through the collective bargaining, the study has as its main problem the verification of the current prospects of the bargaining in the state of Rio Grande do Sul. Also focuses the impact of the ideas of the post modernity in the labour law, beyond some innovations in environmental matters. To reach the main problem, the search is based on 1) interviews with union leaders, 2) analysis of collective instruments signed by unions and, finally, 3) the comparison between interviews and the instruments signed. For the analysis of data obtained, we used the systemic theory of Niklas Luhmann. Finally, it shows that there are no effects of post-modern in the collective bargaining, but repetition of the law instead of innovative options.

The research problem in this study was to analyse how the new constitutional, legal and political arrangements have influenced public policy-making in the department of labour with specific reference to the Employment Equity Act. To achieve this objective a theory for analysing policy–making process was presented. Corporatist theory is based on the following assumptions: Public policy is shaped by interaction between the state and interest groups. The state licences behaviour of interested organizations by attributing public status to them Policy-making is based on interest groups bargaining across a broad range of issues. The groups are functionally interdependent to enhance social stability. The groups use consensus in making decisions. Decision-making is centralised, it is done by leaders. The groups are bureaucratic in organization. The groups must be recorgnised by the state so that they can be allowed representation. The research questions that arise are: (1) Who sets the agenda for policy formulation? (2) How is the policy formulated? (3) how are the decisions taken? (4) How is the policy implemented? (5) How is the policy monitored? The objective of this study analyse how constitutional, legal and political changes have influenced public policy formulation in the Department of Labour with specific reference to the Employment Equity Act. Policy–making processes in the South African arena and factors that led to the promulgation of Employment Equity Act were discussed. This study was a qualitative design. Purposive sampling was used in the selection of five participants who were interviewed. All interviews were transcribed verbatim. Data was analysed as described by Rubin and Rubin (1995:260) The result negated some of the assumptions of corporatist theory and others concurred with the theory. The findings of the study revealed that policy formulation in the Department of Labour is as a result of constitutional, and international conventions obligations. The findings further revealed that policy-information is institutionalised and there are competing interests due to divergent ideological orientations, different social backgrounds; racial differences; different; political beliefs; different class background; different historical backgrounds, and gender differences. (v) The formulation of the act was also characterised by advocacy, adversarism, stereotyping, alliances and consensus. These organisations. were bureaucratic and decisions were centralised. This study recommended a theory and the theory postulates that “public policy is the product of the social, economic, political, cultural, technolergical, and natural conditions of a given society in a particular epoch or period in the historical development of the particular nation or society and is influenced by dominant national and international forces and these influences may be cultural, economically, social, politically, technological, and type and system of government.