Labour Law Rights Research Articles

Appraisal of Selected Themes on the Impact of International Standards on Labour and Social Security Law in South Africa

For many years, South African courts have relied on International Labour Organisation conventions to interpret and give meaning to the fundamental social security and labour law rights enshrined in the Constitution, 1996. Social security and labour law has been one of the ILO's major initiatives of promoting decent work agenda since its inception in 1919. Decent work refers to the availability of employment in conditions of freedom, justice, security and human dignity. This is a multidimensional concept introduced by the ILO in 1999. It has four key components, namely, employment conditions, social security, workplace rights and social dialogue. To this end, the preamble to the ILO Constitution sets out several objectives in this regard, including the protection of workers from illness, accidents, the protection of children, women, and the support of the elderly. The ILO pursues these noble values and goals by developing international labour and social security standards, which member states must ratify and incorporate into their national law. The purpose of these ILO standards is to provide a standard framework or regulatory tool to guide member states in establishing, improving and maintaining social security and labour law systems domestically, regionally and internationally. Against this background, this article examines selected themes on the impact of international standards on labour and social security rights enshrined in the Constitution. It looks at some of the relevant international instruments which have influenced the promotion and protection of these rights. Furthermore, it shows how the courts have infused these standards into their judgments in South Africa.

Appraisal of selected themes on the impact of international standards on labour and social security law in South Africa

For many years, South African courts have relied on International Labour Organisation (hereafter ‘the ILO’) conventions to interpret and give meaning to the fundamental social security and labour law rights enshrined in the Constitution, 1996. Social security and labour law has been one of the ILO's major initiatives of promoting decent work agenda since its inception in 1919. Decent work refers to the availability of employment in conditions of freedom, justice, security and human dignity. This is a multidimensional concept introduced by the ILO in 1999. It has four key components: employment conditions, social security, workplace rights and social dialogue. To this end, the preamble to the ILO Constitution sets out a number of objectives in this regard, including the protection of workers from illness, accidents, the protection of children, women, and the support of the elderly. The ILO pursues these noble values ​​by developing international labour and social security standards, which member states must ratify and incorporate into their national law. The purpose of these ILO standards is to provide a standard framework or regulatory tool to guide member states in establishing, improving and maintaining social security and labour law systems domestically, regionally and internationally.
 
 Against this background, this article examines selected themes on the impact of international standards on labour and social security rights enshrined in the Constitution. It looks at some of the relevant international instruments which have influenced the promotion and protection of these rights. Furthermore, it discusses the application of these standards in domestic courts, and shows how the courts have infused these standards into their judgments.

THE CONTRACT OF EMPLOYMENT IN LABOUR LAW: OBSTACLE OR PANACEA?

The disparity of power in the employment relationship has courted argument that this imbalance continues to be perpetuated in the guise of “the contract of employment”, thereby rendering the contract of employment irrelevant and ineffective in advancing labour law rights. This article counters this view by illustrating the changed nature of the traditional foundation of the employment relationship, known as the contract of employment. The advent of a constitution and our courts’ willingness to develop and strengthen rights and obligations arising from the contract of employment are considered. In addition, the impact of legislation, collective bargaining and the recent more purposive interpretation of the statutory definition of “employee” are discussed. The writers conclude that, although the contract of employment is not a panacea to the employment relationship, it is useful and expedient when interpreted and enforced against the backdrop of constitutional imperatives.

Rethinking the allocation criteria of the labour law rights and protections: A risk-based approach

The present paper investigates the ongoing validity of the notion of subordination as selection criteria to allocate the labour protections in the contemporary economic framework. The gig economy is deeply affecting the way of working, transforming the employee in a service provider. This phenomenon is partially due to the progressive shift from a firm-based production model towards a market transaction based one. Although its lawfulness is still unclear, it highlights that the way of working is changing in a way that struggles to fit into the classic legal categories. This is mainly due to the fact that the labour protections are usually bestowed moving from a notion of subordination highly focused on the organisational element. Thus, economic actors suffering from the same economic weakness of the employees, but organisationally independent, struggle to obtain the necessary protections. Moving from those remarks the author suggests rethinking the allocation criteria of the labour protections, adopting economic weakness as the main criterion. This category should encompass all the individuals performing a working activity that are not able to significantly influence its financial outcome. The aim of such reform should be to extend the labour protections to all the subjects needing them. The final part of the paper investigates the possible solutions under the current legal framework. The major finding is that under certain circumstances the gig workers can be qualified as temporary employees not of the platform, but of the contractor. In this scenario, the digital platforms should be deemed as job-placement service providers and, thus, they should comply with the relevant provisions. These include the eventual need of administrative authorisations and the free-of-charge principle, whose violations represent, in several jurisdictions, a criminal offence

New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems, New Prime, and Lamps Plus

The Supreme Court's recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems Corporation v. Lewis upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus, Inc. v. Varela rejected a state law interpretation of a contract provision to find that parties to an employment contract intend individual arbitration absent reference to group arbitration. A unanimous Court in New Prime v. Oliveira interpreted the FAA to include independent contractors under the transportation worker exemption, reinvigorating the battle over what it means to be engaged in interstate commerce to qualify for the exemption. These decisions resolved some disputes about the breadth of the FAA, but other questions remain. In the wake of Epic Systems and Lamps Plus, state courts and legislatures are testing the boundaries of the FAA's saving clause, with limited success. Confidentiality provisions, frequently associated with arbitration agreements, may unlawfully interfere with employees’ federal labor law rights. This article recommends that Congress amend the FAA to address these issues by excluding all workers engaged in interstate commerce, not just transportation workers, because the Court has strayed far from the original intent of the Act—to enforce commercial agreements in which the parties had equal bargaining power. State legislation also should provide guidance on what makes arbitration voluntary and fair, and provide a choice to employees on collective action, forum, and confidentiality.

New Battles and Battlegrounds for Mandatory Arbitration After Epic, New Prime, and Lamps Plus

The Supreme Court’s recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus presumed that the parties intend individual arbitration absent reference to group arbitration. However, in a rare unanimous decision, the Supreme Court in New Prime exempted transportation workers from FAA coverage, even where the workers are independent contractors rather than employees. These decisions resolved some disputes about the breadth of the FAA but other questions remain unresolved. For example, do the confidentiality provisions so often associated with arbitration provisions unlawfully interfere with employees’ federal labor law rights? Are state laws on employment arbitration subject to preemption? Some state courts and legislatures continue to seek ways to protect workers who are disadvantaged by mandatory individual arbitration provisions, and others outline procedures for arbitration even for those transportation workers who are categorically exempt under the FAA. State laws regulating employment arbitration may fail in the face of preemption arguments, as the Court’s slim conservative majority appears intent on upholding individual arbitration provisions at all costs. Nevertheless, California persists in allowing representative suits under its Private Attorney General’s Act (PAGA) and state courts continue to consider traditional contract defenses such as lack of mutual assent and unconscionability as arguments to bypass onerous arbitration provisions. The Court’s New Prime decision will reinvigorate the battle over what it means to be “engaged in interstate commerce” to qualify for the FAA’s transportation worker exemption, with workers for Uber and Lyft leading the charge as they seek to avoid mandatory individual arbitration. In contrast, businesses will undoubtedly argue that even transportation workers who are exempt under the FAA still must arbitrate under state law provisions that do not exempt transportation workers. The authors recommend that Congress amend the FAA to exclude all workers affecting interstate commerce, and clarify the role of state law regulating employment arbitration. State legislation should provide guidance on what makes arbitration truly voluntary and fair, as well as afford employees a real choice on collective action and forum, and whether to maintain confidentiality about the dispute.

Separating the Powers: Why the NLRB as Prosecutor, Judge, and Jury Is a Broken Model

Historically, the NLRB has interpreted the unfair labor practice provisions of the NLRA primarily through the adjudication of individual cases involving charges against employers or unions. Because control of the Board shifts back and forth with changes in the administration, this process of making law through case-by-case adjudication has had relatively disastrous results. Employers and unions complain about frequent reversals of precedent when the Board invariably changes composition along political lines. This leads to uncertainty and unnecessary costs associated with efforts to comply with the ever-shifting rules. The rabid politicization of the NLRB has eroded its legitimacy and made it difficult to maintain a fully constituted and validly appointed Board. In recent years, this has led to the retroactive invalidation by the Supreme Court of numerous decisions of the Board due to the absence of a lawful quorum; and currently the Supreme Court is considering the status of more than a thousand other decisions that may be retroactively invalidated due to unconstitutional recess appointments. We posit that these serious defects could be cured by curbing the Board’s decisional authority. This article proposes to amend the NLRA to eliminate the NLRB’s adjudicative function in unfair labor practice cases and transfer that responsibility to federal district courts, while preserving the Board’s core competencies: (1) conducting elections and resolving representation issues, and (2) investigating (and resolving short of litigation) unfair labor practice charges. Under our model, the Board would continue to have rulemaking authority. However, the Board would be encouraged to rely on administrative guidelines, similar to those adopted by the EEOC, instead of legislative rules. These guidelines would not be binding on federal courts but would be accorded due deference by the judiciary in recognition of the Board’s unique expertise in industrial relations. Ultimately, we conclude, an amended NLRA with more rigorous judicial oversight will restore credibility to the Board and lead to more effective vindication of the federal labor law rights of individuals, employers, and unions.

Religious Autonomy and Labour Law: A Comparison of the Jurisprudence of the United States and the European Court of Human Rights

This article examines the way in which the legal systems in two jurisdictions resolve the tension between the protection of the religious autonomy rights of religious employers and the labour law rights of their employees. In the United States, both the courts and the legislatures have been grappling with the issues raised by religious employment for many years. The European Court of Human Rights, by contrast, has only recently begun to see cases arising in this context, but it is now faced with the need to develop case law in this area very quickly in response to a growing number of cases. The complexity of the competing rights arguments has led each jurisdiction to some solutions that are not optimal and each could learn from the other in working towards more nuanced methods for resolving these legal disputes.

Towards a Functioning Framework for Individual Labour Law Rights: Challenges for China in a Changing World of Work

This presentation considers progress towards establishment of a modern legislative framework for individual employment relations in China. A background of current labour market statistics and trends is provided, together with comment on perceived impacts for China of the global financial crisis since 2008. Recent enactments dealing with employment promotion, labour contracts, and labour dispute resolution are then considered. These are seen as a new phase in regulatory activity for the world of work since the foundation of the People's Republic in 1949. Particular challenges are identified in relation to effective delivery of employment rights, the administrative monitoring of enterprise compliance with labour regulations, and judicial efficiency in dealing with a rising volume of labour disputes throughout China. The influence of international standard-setting bodies upon the new enactments is noted, as are lessons drawn by the Chinese authorities from examination of experiences in other national systems. It is suggested that, without dramatic departure from the framework established by the 'umbrella' Labour Law of 1994, recent Chinese legislation reflects some sophisticated and innovative draughtsmanship, as well as sensitivity to the delicate balance between the economic interests of enterprises and the (generally protective) 'social dimension' of the world of work. Concern is expressed, however, as to whether China's available enforcement and sanctioning mechanisms will suffice to ensure that the new regulatory arrangements become effective in practice. Notably, there is a pressing need for capacity building in order to provide the administrative and judicial institutions necessary to ensure effective labour market regulation within a framework of rule of law. The need for a stable, well-regulated, yet flexible, labour market is seen as crucial to the continued success of the Chinese economy at a time of dramatic global flux. Cautious optimism is expressed as to the prospects of achieving those goals.