This treatise describes the difficulty of changing conditions of service following transfers in terms of Section 197 of the Labour Relations Act, 66 of 1995. The Constitution of the Republic of South Africa, Act 108 of 1996, provides that ambulance services are a Provincial Legislative competence. The City of Cape Town had for many years provided ambulance services on an agency basis to the Department of Health of the Provincial Administration of the Western Cape. The impact of the constitutional provision is that those employers and employees who are performing ambulance services are not entitled anymore to perform such function. The Department of Health must take control over the ambulance services and the employees of the City of Cape Town could be transferred. The challenges facing both employers (old and new) and the trade unions to secure a transfer of the employees from the City of Cape Town to the Department of Health in terms of section 197 of the Labour Relations Act will be highlighted. It is within the context of ensuring protection of jobs whilst simultaneously effect a transfer of contracts of employment that the Labour Relations Act expressly gives various options to the parties involves in a transfer. Of the options include: • A transfer in terms of section 197(2) of the LRA where the service could be transferred from the old employer to the new employer as a going concern. This could happen without the consent of the affected employees or trade unions and collective agreements must be taken over as well, or • The new employer complies with its obligations if the transfer takes place on terms and conditions that are on the whole not less favourable to the employees what they have received by the old employer. In terms of this provision the overall package of conditions of service that was offered should not be less in comparison with that of the old employer. • The parties also have the option to negotiate a transfer agreement that could regulate the conditions of service. The focus is on the description of the conditions of service of both employers and the difficulty to persuade the trade unions to accept the Department’s conditions of service. Part of the difficulty is that the Department must obtain its mandate from the Department of the Public Service and Administration, who is also responsible for the determining of the conditions of service in the Public Service. One of the challenges is that the Department of Health cannot accommodate collective agreements of entities outside the Public Service. The City of Cape Town’s conditions of service is in the form of a collective agreement and the Labour Relations Act is very specific with the various options. These options will be discussed an analised. In conclusion recommendations are made in regard to effect a transfer of conditions of employment in terms of the Labour Relations Act to enable the Department of Health to meet its constitutional obligation.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10231 |
| Date | January 2007 |
| Creators | Roman, Richard Joseph |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | vi, 65 leaves ; 30 cm, pdf |
| Rights | Nelson Mandela Metropolitan University |
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