Allied Workers Research Articles

Notes: Revisiting Uber Drivers as Employees — Comparing South African and UK Law

The UK Supreme Court in the case Uber BV v Aslam [2021] UKSC 5 recently held that Uber drivers in London were workers for the purposes of inter alia minimum wage regulations. In South Africa, the Labour Court in Uber SA Technology Services (Pty) Ltd v National Union of Public Service & Allied Workers (2018) 39 ILJ 903 (LC) (Uber SA) held that the Commission for Conciliation, Mediation and Arbitration (CCMA) had erred in finding that South African Uber drivers were employees of Uber SA. This note compares the two cases, as well as considering the distinction between ‘employees’, ‘workers’ and ‘independent contractors’.

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

In NEHAWU & others v Minister of Public Service and Administration & others 2022 (6) BCLR 673 (CC), the Constitutional Court declared invalid and unenforceable a clause regulating the third payment period in a collective agreement regulating periodic wage increases for public service employees. We do not take issue with the court’s findings concerning the validity of the impugned collective agreement. However, we question the reasoning provided for the ‘just and equitable’ remedy ordered. We find the court’s reasoning insufficient in so far as it overlooked applicable principles of corrective justice, the significance of the state being unjustifiably enriched by labour peace by curtailing public servants’ right to strike, and the consequences of its decision on the effectiveness of the delay-bar in preventing ill-motivated state self-review. We propose the bifurcated approach that the court adopted in the AllPay saga as a tool to adjudicate polycentric cases such as the impugned case, as it enhances the judiciary’s proper place in the separation of powers and maximises remedial possibilities for innocent third parties to state contracts. We conclude with what has happened on the ground since this decision was reached.

Unionising Sex Workers and Other Feminists

A minor movement of strippers and sex workers are unionising as the Sex Workers’ Union (SWU) branch of the Bakers Food & Allied Workers Union. SWU have produced a counter hegemonic perspective on law and society in the process of class struggle. This perspective demystifies the view that strippers and sex workers are free workers and enterprising subjects, or unfree vulnerable victims in need of state protection. SWU's counter hegemonic perspective inverts this common-sense assumption and posits that strippers and sex workers are unfree workers and free sexual subjects. This demystification is evident in SWU's ‘feminist law work’, which demands decommodification and decriminalisation for all sex workers by working within, and against, official law. In conclusion, I argue that there are at least three reasons why other feminists should support SWU by ceasing eradication of sex work via criminalisation and closure campaigns. This would open space for a politics of solidarity between sex workers and other feminists, centred on the conditions within which sex workers’ labour is commodified.

Exposure to insulating materials and risk of coronary artery diseases: a cross-sectional study.

Although previous reports link exposure to insulating materials with an increased risk of mesothelioma and chronic respiratory diseases, studies evaluating their associations with the risk of coronary artery diseases (CAD) are lacking. We aimed at evaluating the associations between exposure to insulating materials and the 10-year risk of CAD among insulators. In this cross-sectional study, we recruited 643 adults (≥18 years), full-time insulators from the Local 110 Heat and Frost Insulators and Allied Workers Union in Edmonton, Alberta. We obtained demographic information, personal and family history, and job-exposure history, including experience (years) and types of exposure to insulating materials. Clinical profiling including Framingham risk scores (FRS) was assessed. Of all insulators, 89% were men (mean ± SD age: 47 ± 12 years), 27% had a parental history of cardiac diseases, and 22% had a comorbid chronic respiratory disease. In total, 53% reported exposure to asbestos, while 61, 82, and 94% reported exposure to ceramic fibers, fiberglass, and mineral fibers, respectively. In single-exposure multivariable regression models adjusted for experience, marital status, and body mass index (BMI), asbestos was found to be associated with higher FRS (β: 1.004; 95%CI: 0.003-2.00). The association remained consistent in multi-exposure models and a higher association was found between asbestos exposure and FRS among insulators with comorbid chronic respiratory disease. Our study demonstrates that apart from cancer and chronic respiratory diseases, asbestos exposure may also have a cardiac effect, thus warranting the need for systematic surveillance to protect workers from the adverse effects of these materials.

Labour Union Leadership and Gender Equality Challenges: Evidence from Kenya’s Electrical Traders and Allied Workers Union

The research investigates the challenges female union members encounter while seeking or assuming labour union leadership positions. Using evidence from Kenya’s Electrical Traders and Allied Workers Union, this article aims at identifying sociocultural barriers, role conflict, and structural constraints on women in relation to gender inequality. The article is based on exploratory research using data comprising both qualitative and quantitative data obtained from interviewing 63 female respondents who were identified using a non-probability sampling procedure referred to as snowballing. The research revealed a significant proportion of the respondents observed that patriarchal union structures favour men, but hinder women from accessing leadership positions. Most viewed the trade union leadership roles as demanding and burdensome and therefore incompatible with their culturally designated family roles. Institutionalised sexism in the trade union discouraged women from assuming leadership positions, since they are unlikely to penetrate the male-dominated informal leadership lobbies and networks in the trade union. The study concludes that the union, and by extension the umbrella trade union movement, should adopt and implement affirmative actions that are focused to maintain women in union leadership structures.

Does the incorrect classification of misconduct charges constitute substantive unfairness? EOH Abantu v CCMA (2019) 40 ILJ 2477 (LAC)

Dismissals are commonplace in employment and arise for various reasons. One such reason is the unacceptable or undesirable conduct of an employee, which is recognised as a dismissal for misconduct. Notwithstanding the employers’ right to effect dismissals, employees are considerably protected by the law (s 185 of the Labour Relations Act (LRA)). An employee has the right to challenge his/her dismissal by referring an unfair dismissal dispute to the CCMA (s 191 of the LRA). This is not surprising considering the fact that fairness is the cornerstone of the employment relationship (as evident from s 23(1) of the Constitution, which states that “everyone has the right to fair labour practices”; see also Blanpain and Weiss Changing Industrial Relations and Modernisation of Labour Law (2003) 182). While it is indisputable that employers should act fairly towards its employees, a significant principle that has been highlighted in the determination of fairness is that it must accommodate and balance the conflicting interests and rights of both employers and employees (National Education Health & Allied Workers Union v University of Cape Town (2003) 24 ILJ 95 (CC) par 38 and 40).

Legal Pitfalls of Incompatibility in the Workplace: An Examination of the Landmark Ruling on Racism in Rustenburg Platinum Mine v SAEWA obo Meyer Bester 2018 (5) SA 78 (CC)

In South African labour law, as is the position in other international jurisdictions, the contract of employment is founded on an employment relationship between employer and employee. This case note discusses the nature and scope of the implied term of trust and confidence in the relationship in relation to managerial employees, with particular emphasis on breach of fiduciary obligations as well as incompatibility (MacGregor “Racial Harassment in the Workplace: Context as Indicata SA Transport and Allied Workers Union obo Dlamini & Transnet Freight Rail” 2009 Industrial Law Journal 650). This obligation of mutual trust and confidence cuts both ways (Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280) and means that the employer must not behave arbitrarily or unreasonably, or so as to destroy the necessary basis of mutual confidence (Malik v BCCI [1998] AC 20 35 and Woods v WM Car Services (Peterborough) Ltd 1981 IRLR 347).Since the dawn of democracy in 1994 and influenced by constitutional changes in government, South African labour law has been drastically transformed. The new government, led by the African National Congress, had to come up with a legislative framework to deal with racism. Although the Labour Relations Act 66 of 1995 (LRA) does not explicitly deal with the question of racism at work, the importance of forging harmonious employment relationships is covered in the misconduct and incapacity in Schedule 8 of the LRA (Code of Good Practice: Dismissal). To this day, racism at the workplace remains a scourge and for this reason this case note examines the Rustenburg Platinum Mine v SAEWA obo Bester 2018 (5) SA 78 (CC)) case as its focal point. The effect of racism requires that a balance be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly and improperly exploited.

Public Sector Reform and the Challenges of Open and Expansive Unionism in Zambia

This article analyses the challenges of open and expansive unionism in the era of public sector reform in Zambia. A sample of 20 former and current leaders of the Civil Servants and Allied Workers Union of Zambia was engaged in the research. The research reveals that trade unions in poor countries like Zambia are more vulnerable to the challenges of open and expansive unionism. These include inter-union conflict and lack of resources for union organising. Despite their vulnerability, these unions make strategic choices to deal with these challenges. Their strategies include networking and information gathering and sharing.

Fast Food Shutdown: From disorganisation to action in the service sector

This article discusses the Fast Food Shutdown, a strike on 4 October 2018 that involved Wetherspoon, McDonald’s, TGI Fridays and UberEats workers in the United Kingdom. It compares the different strategies of the Bakers Food and Allied Workers’ Union at Wetherspoon and Industrial Workers of the World at UberEats. The two case studies, drawing on the authors’ ongoing ethnographic research, provide important examples of successful precarious worker organising. In particular, the argument focuses on the role of action in organising, as well as the relationship between the rank-and-file and the union. While these could point the way to the recomposition of the workers movement – both in greenfield sectors and within existing unions – there remain important questions about how these experiences can be generalised.

21 ilo Committee on Freedom of Association: Complaint against the Government of Indonesia presented by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (iuf), Case No. 3305, Report in which the committee requests to be kept informed of development – Report No. 388, 14–28 March 2019

21 ilo Committee on Freedom of Association: Complaint against the Government of Indonesia presented by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (iuf), Case No. 3305, Report in which the committee requests to be kept informed of development – Report No. 388, 14–28 March 2019

12 ILO Committee on Freedom of Association: Complaint against the Government of South Korea Presented by the International Union of Food Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association (IUF), Case No. 3262, Definitive Report, Report No. 384, June 2018

12 ILO Committee on Freedom of Association: Complaint against the Government of South Korea Presented by the International Union of Food Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association (IUF), Case No. 3262, Definitive Report, Report No. 384, June 2018

The Right to Strike under the Labour Relations Act 66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA

The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining.
 

Aquaculture occupational safety and health in Brazil.

Abstract Health, safety and injury prevention actions should be prioritized in aquaculture, where workers are exposed to a wide range of risks. This paper is based on a scoping report by a group of international experts, funded by the Food and Agriculture Organization (FAO) and administered by Fisheries and Aquaculture Workers Network of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF). Relevant literature was reviewed and the study drew on an international workshop to develop templates and related for regional and national aquaculture occupational safety and health (AOSH) profiles. The literature review included Scielo and Google Scholar databases as well as Google and Brazilian government websites. The searches included material in Portuguese, English and Spanish. The results reported here give an overview of Brazilian AOSH and hazards and cover Brazilian and relevant international worker health and safety laws and organization applicable to the particular hazards in aquaculture. There is a special emphasis on the position of children and women workers linked to the wider social organization of work and welfare, and finally the challenges to and possibilities for good AOSH. Despite major developments in aquaculture production, much still needs to be improved to ensure the safety and health of workers in the sector.

The National Education, Health and Allied Workers' Union (NEHAWU) strikes: South Africa's healthcare battlefield.

The right to strike is a fundamental right entrenched in section 23 of the Bill of Rights. Strikes are an almost everyday occurrence in South Africa and strikes in healthcare facilities raise difficult and complex moral and ethical questions. The right to strike is conditionally limited by section 36 of the Constitution and for workers engaging in essential services it is further limited under section 65 of the Labour Relations Act. Healthcare practitioners, including emergency care personnel, and much-needed healthcare facilities have come under attack during the National Education, Health and Allied Workers' Union (NEHAWU) strikes, which have prevented patients from accessing healthcare and threatened the training of undergraduate students and registrars. While generally security and policing have been lacking at targeted facilities, many doctors stood by their patients despite threats to their safety. Healthcare facilities, vehicles and practitioners must be protected. Solutions must come from politicians and include preventive actions and enforcement of the law.

When Prisoners Had a Union: The Canadian Food and Allied Workers Union Local 240

Most Canadian prisoners work, yet very little attention has been paid to them as workers by either labour scholars or unions. However, in 1977 the Canadian Food and Allied Workers union (cfaw) organized both incarcerated and non-incarcerated meat cutters into the country’s first and only legally recognized union representing primarily prisoners, cfaw Local 240. The union drive came in response to the Ontario government’s push to increase prisoners’ participation in the workforce, including the introduction of a number of “outside managed industrial programs,” which involved private firms operating within provincial correctional facilities. These privately managed industries rekindled some older debates around the potential for prison labour to undermine the wages of free labour, but in the case of the experimental abattoir program at Guelph, they also resulted in something new: unionized prisoners. The union not only made important gains for the workers, but also made modest gains for prisoners’ rights. While cfaw Local 240 would eventually be merged into subsequent unions, it continues to serve as a model for working prisoners and represents a rare moment in Canadian history – one where a union organized prison labour instead of opposing it. La plupart des prisonniers canadiens travaillent, mais tres peu d’attention leur a ete accordee en tant que travailleurs par les syndicats ou les chercheurs. Cependant, en 1977, le Syndicat canadien des travailleurs de l’alimentation et des industries connexes (sctaic) a organise des coupeurs de viande incarceres et non incarceres dans le premier et unique syndicat legalement reconnu representant principalement les detenus, la section locale 240 du sctaic. La syndicalisation a eu lieu en reponse a la pression exercee par le gouvernement de l’Ontario d’accroitre la participation des detenus au marche du travail, notamment en introduisant un certain nombre de « programmes industriels exterieurs a la gestion », impliquant des entreprises privees operant dans des etablissements correctionnels provinciaux. Ces industries gerees par le secteur prive ont rallume certains debats plus anciens sur la possibilite que le travail penitentiaire sape le salaire de la main-d’œuvre gratuite, mais dans le cas du programme experimental d’abattoir a Guelph, elles ont aussi donne lieu a quelque chose de nouveau : des prisoniers syndiques. Le syndicat a non seulement apporte des gains importants aux travailleurs, mais a egalement permis de realiser des gains modestes pour les droits des detenus. Bien que la section locale 240 du sctaic se soit regroupee avec d’autres syndicats par la suite, elle continue de servir de modele pour les prisonniers en activite et represente un moment rare dans l’histoire du Canada – un syndicat organisant le travail penitentiaire au lieu de s’y opposer. Full Text: Subscribers Only

1 ilo Committee on Freedom of Association: Complaint against the Government of Pakistan presented by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (iuf), Case No. 3018, Interim Report, Report No. 378, 11 June 2016

1 ilo Committee on Freedom of Association: Complaint against the Government of Pakistan presented by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (iuf), Case No. 3018, Interim Report, Report No. 378, 11 June 2016

The Role of the Labour Court in Collective Bargaining: Altering the Protected Status of Strikes on Grounds of Violence in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC)

This note explores the powers of the Labour Court as envisaged in the Labour Relations Act 66 of 1995 (LRA), where a protected strike disintegrates into violent riotous conduct. The legal status of protected strikes raises important questions of law, namely: whether the Labour Court has the authority to alter the legal status of a strike; the autonomy of collective bargaining; and the legal test which the Labour Court should apply when intervening. The court in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd 2016 37 ILJ 476 (LC) dealt with this precise problem. There can be no doubt that South Africa is plagued by widespread strike violence which often occur during protected strikes. However, this contribution poses the question whether the Labour Court has not overstepped its mandated jurisdiction and it questions whether such alterations of the status of strikes would have a positive effect on the institution of collective bargaining.
 

23 oecd National Contact Point, United States: Specific Instance between the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (iuf) and PepsiCo, Inc., Final Statement, 15 April 2016

23 oecd National Contact Point, United States: Specific Instance between the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (iuf) and PepsiCo, Inc., Final Statement, 15 April 2016

Revisiting Trade Unions’ Response to New Public Management: A Case From Zambia

This article discusses the strategic responses by public-sector unions to new public management (NPM) reforms in Zambia. The article is based on a qualitative research methodology focusing on the Civil Servants and Allied Workers Union of Zambia. The study shows that public-sector workers in developing countries are more vulnerable to the effects of externally imposed NPM reforms, which include job cuts. However, the implementation of these reforms faces opposition especially from trade unions. In line with the assumptions of strategic choice theory, union responses to NPM reforms are strategic. Despite the high vulnerability of public workers in developing countries, their unions use strategies that can also be observed in developed countries to mitigate the negative consequences of NPM reforms on the public sector. These strategies follow a three-stage process, namely, opposing the reforms, negotiating for favorable reform measures, and shifting from centralized structures to networks.

Contested labour and political leadership: three mineworkers’ unions after the opposition victory in Zambia

ABSTRACTScholars of Zambian labour thought the once-powerful movement in terminal decline, but followed up neither the effects of the multi-union environment nor the opposition victory of a leftist political party in 2011. The author’s case study of three mineworkers’ unions (Mineworkers’ Union of Zambia, National Union of Miners and Allied Workers and United Mineworkers Union of Zambia) shows how the Patriotic Front party reawakened labour militancy only to suppress it within five months. The union competition increased welfare and financial accountability, but even insurgent unions surrendered to the dominant ideology of ‘industrial peace’, yielding the strike weapon to corporate hegemony. The article concludes that the unions have little bargaining power, but that the constant grassroots contestation of labour and political leaders renders Zambian labour highly vibrant.