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The Employment Protection Act (1982:80) provides provisions regarding priority of re-employment. A few cases where these provisions have been subject to examination, have been discussed thoroughly in SOU 2014:55. In these cases the Labour Court has identified the question whether the provisions regarding priority of re-employment can be subject to circumvention in an illegal manner. The Labour Court has stated that it would be incompatible with the sense of justice if the provisions could be circumvented to the detriment of employees entitled to priority of re-employment. However, the Labour Court stated that certain conditions have to be imposed for the assessment. After analysis of the conditions, it is established that they are deemed to cause major difficulties for employees, why it is held that the purpose and the function of the conditions are not achieved. The purpose of the essay is therefore to investigate whether the application of the conditions imposed by the Labour Court, need to undergo modifications to meet the underlying purpose of the creation of the conditions. By reason of the difficulty with the conditions, the essay provides three different amendments in which two of the amendments are ascertained to not contribute to such an improvement that they should actually be applied. The third amendment implies that the burden of proof to some degree is reversed from the employee to the employer, whereby the difficulties following the second condition are limited. To preserve the balance between the interests of both parties the standard of proof is modified for the employer. Except from the fact that the underlying purpose of the provisions can be met with this modification, the amendment also ensures that the procedural premises conform to what generally is considered valid. Additionally, the rules regain their effectiveness and predictability. / I LAS finns bestämmelser om arbetstagares företrädesrätt till återanställning. Ett antal rättsfall där dessa företrädesrättsregler varit föremål för prövning har i SOU 2014:55 diskuterats närmare. I dessa rättsfall har ifrågasatts om företrädesrättsreglerna kan kringgås av arbetsgivare på ett sätt som kan anses lagstridigt. Arbetsdomstolen har i dessa rättsfall slagit fast att det onekligen skulle vara oförenligt med rättskänslan om företrädesrättsreglerna kan kringgås till skada för företrädesberättigade arbetstagare. Arbetsdomstolen har emellertid fastställt att det måste uppställas bestämda krav för att sådant kringgående ska vara för handen, varför ett antal förutsättningar uppställts. Efter analyser av dessa förutsättningar konstateras att de ger upphov till stora svårigheter för arbetstagare, varför det i uppsatsen konstateras att förutsättningarnas syfte och funktion inte uppfylls. Det huvudsakligen syftet med uppsatsen är därför att undersöka huruvida rättstillämpningen på området behöver genomgå förändring för att uppnå det bakomliggande syftet till förutsättningarnas uppkomst. I uppsatsen utarbetas med anledning av problematiken med gällande förutsättningar tre olika förslag till ändring av gällande rättsläge. Två av dessa konstateras emellertid inte ge upphov till sådan förbättring att de bör tillämpas. Det tredje ändringsförslaget innebär emellertid att viss bevisbörda flyttas från arbetstagaren till arbetsgivaren, varigenom svårigheterna med den andra förutsättningen begränsas. För att i största mån upprätthålla balansen mellan båda parters intressen justeras också beviskraven för arbetsgivare, vilket utöver att syftet med reglerna uppnås också resulterar i att de processrättsliga utgångspunkterna överensstämmer med vad som generellt torde vara gällande. Därutöver återfår också reglerna deras effektivitet och förutsebarhet.

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Magister Legum - LLM

In the sphere of labour and employment, "prerogative" is usually taken to refer to the "right to manage" an organisation. The right can be divided into those decisions which relate to the utilisation of the human resources of the organisation and decisions of an "economic" or "business" nature. This thesis focuses on the first category of decisionmaking. It is generally accepted by employers and trade unions that employers have the right to manage employees. The legal basis for this right is to be found in the contract of employment which has as one of its elements the subordination of the employee to the authority of the employer. This element affords the employer the legal right to give instructions and creates the legal duty for the employee to obey these instructions. Employers' right to manage is, however, neither fixed nor static. The main purpose of this thesis is to determine the extent of employers' right to manage employees. This is done by examining the restrictions imposed by the law {ie common law and legislation) and collective bargaining. The examination is accordingly focussed on what is Jett of employer prerogative. A number of conclusions are drawn from the examination. One of the most important conclusions reached is that, although most of an employer's common law decisionmaking powers have been statutorily regulated, none have been rescinded. The employer has accordingly retained its decision-making power, albeit in a more restricted or limited form. This makes further restriction of its decision-making power through contractual or statutory provisions or collective bargaining possible. It, however, also makes the lessening or even the total removal of these restrictions through future statutory provisions or collective bargaining possible. / Law / LL.D.

In the sphere of labour and employment, "prerogative" is usually taken to refer to the "right to manage" an organisation. The right can be divided into those decisions which relate to the utilisation of the human resources of the organisation and decisions of an "economic" or "business" nature. This thesis focuses on the first category of decisionmaking. It is generally accepted by employers and trade unions that employers have the right to manage employees. The legal basis for this right is to be found in the contract of employment which has as one of its elements the subordination of the employee to the authority of the employer. This element affords the employer the legal right to give instructions and creates the legal duty for the employee to obey these instructions. Employers' right to manage is, however, neither fixed nor static. The main purpose of this thesis is to determine the extent of employers' right to manage employees. This is done by examining the restrictions imposed by the law {ie common law and legislation) and collective bargaining. The examination is accordingly focussed on what is Jett of employer prerogative. A number of conclusions are drawn from the examination. One of the most important conclusions reached is that, although most of an employer's common law decisionmaking powers have been statutorily regulated, none have been rescinded. The employer has accordingly retained its decision-making power, albeit in a more restricted or limited form. This makes further restriction of its decision-making power through contractual or statutory provisions or collective bargaining possible. It, however, also makes the lessening or even the total removal of these restrictions through future statutory provisions or collective bargaining possible. / Law / LL.D.

Recently, South African company law underwent a dramatic overhaul through the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance: companies no longer are accountable to their shareholders only but to society at large. Leaders should direct company strategy and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and, thus, should manage the business in a sustainable manner. An important question in company law today: In whose interest should the company be managed? Corporate governance needs to address the entire span of responsibilities to all stakeholders of the company, such as customers, employees, shareholders, suppliers and the community at large. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies and encourages the efficient and responsible management of companies. The promotion of human rights is central in the application of company law: it is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a “social institution” should be enhanced and protected. Because corporations are a part of society and the community they are required to be socially responsible and to be more accountable to all stakeholders in the company. Although directors act in the best interests of shareholders, collectively, they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into account the Constitution, labour and company law legislation in dealing with social justice issues. Employees have become important stakeholders in companies and their needs should be taken into account in a bigger corporate governance and social responsibility framework. Consideration of the role of employees in corporations entails notice that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political change became evident after South Africa's re-entry into the world in the 1990s. Change to socio-economic conditions in a developing country is also evident. These changes have a major influence on South African labour law. Like company law, labour law, to a large extent, is codified. Like company law, no precise definition of labour law exists. From the various definitions, labour law covers both the individual and collective labour law and various role-players are involved. These role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties, ultimately, are what guides a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed by the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and the transformation of the workplace are central issues in South African labour law. The constitutional change that have taken place in South Africa, by which the protection of human rights and the democratisation of the workplace are advanced contributed to these developments. Before the enactment of the LRA, employee participation and voice were much-debated topics, locally and internationally. In considering employee participation, it is essential to take due cognisance of both the labour and company law principles that are pertinent: the need for workers to have a voice in the workplace and for employers to manage their corporations. Employee participation and voice should be evident at different levels: from informationsharing to consultation to joint decision-making. Corporations should enhance systems and processes that facilitate employee participation and voice in decisions that affect employees. The primary research question under investigation is: What role should (and could) employees play in corporate decision-making in South Africa? The main inquiry of the thesis, therefore, is to explore the issue of granting a voice to employees in companies, in particular, the role of employees in the decision-making processes of companies. The thesis explores various options, including supervisory co-determination as well as social co-determination, in order to find solutions that will facilitate the achievement of employee participation and voice in companies in South Africa. / LLD, North-West University, Potchefstroom Campus, 2015

Recently, South African company law underwent a dramatic overhaul through the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance: companies no longer are accountable to their shareholders only but to society at large. Leaders should direct company strategy and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and, thus, should manage the business in a sustainable manner. An important question in company law today: In whose interest should the company be managed? Corporate governance needs to address the entire span of responsibilities to all stakeholders of the company, such as customers, employees, shareholders, suppliers and the community at large. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies and encourages the efficient and responsible management of companies. The promotion of human rights is central in the application of company law: it is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a “social institution” should be enhanced and protected. Because corporations are a part of society and the community they are required to be socially responsible and to be more accountable to all stakeholders in the company. Although directors act in the best interests of shareholders, collectively, they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into account the Constitution, labour and company law legislation in dealing with social justice issues. Employees have become important stakeholders in companies and their needs should be taken into account in a bigger corporate governance and social responsibility framework. Consideration of the role of employees in corporations entails notice that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political change became evident after South Africa's re-entry into the world in the 1990s. Change to socio-economic conditions in a developing country is also evident. These changes have a major influence on South African labour law. Like company law, labour law, to a large extent, is codified. Like company law, no precise definition of labour law exists. From the various definitions, labour law covers both the individual and collective labour law and various role-players are involved. These role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties, ultimately, are what guides a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed by the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and the transformation of the workplace are central issues in South African labour law. The constitutional change that have taken place in South Africa, by which the protection of human rights and the democratisation of the workplace are advanced contributed to these developments. Before the enactment of the LRA, employee participation and voice were much-debated topics, locally and internationally. In considering employee participation, it is essential to take due cognisance of both the labour and company law principles that are pertinent: the need for workers to have a voice in the workplace and for employers to manage their corporations. Employee participation and voice should be evident at different levels: from informationsharing to consultation to joint decision-making. Corporations should enhance systems and processes that facilitate employee participation and voice in decisions that affect employees. The primary research question under investigation is: What role should (and could) employees play in corporate decision-making in South Africa? The main inquiry of the thesis, therefore, is to explore the issue of granting a voice to employees in companies, in particular, the role of employees in the decision-making processes of companies. The thesis explores various options, including supervisory co-determination as well as social co-determination, in order to find solutions that will facilitate the achievement of employee participation and voice in companies in South Africa. / LLD, North-West University, Potchefstroom Campus, 2015