South African Labour Research Articles

Stepchildren of Liberation: South African Farm Workers' Elusive Rights to Organise and Bargain Collectively

The poor working conditions and wages in South African agriculture suggests that legal mechanisms to protect workers' rights will remain largely ineffective if workers are not, at the same time, in a position to forge a collective agency. Despite South Africa's ‘world class’ labour legislation, farm workers' freedom of association and right to bargain collectively are hardly realised at all. This article draws on interviews with South African labour and human rights activists to explore why this is so. Structural and cultural traits of rural labour relations collude with the inept approaches of trade unions, revealing that even a state-of-the-art progressive labour relations system may fail to engender any countervailing power on the part of labour. How to make trade union rights of agricultural workers actionable remains a fundamental challenge in labour relations research and policy.

The Interplay between international law and labour law in South Africa: Piercing the diplomatic immunity veil

This article investigates the interplay between labour law and international law in the context of the diplomatic employment relationship. The overriding effect of the Constitution of the Republic of South Africa, 1996 as supreme law to protect the labour rights of employees is weighed against the effect of various binding international legal instruments aimed at protecting diplomats' right to immunity. In view of the competing rights of employees and diplomatic employers, the question in this regard is to what extent employees in a diplomatic employment relationship can rely on their right to "fair labour practices" in the broad sense and the overall protection afforded to employees whose rights are infringed. In view of the perception that diplomatic employers can hide behind a veil of diplomatic immunity and in the absence of judgments by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court, answers and guidelines were sought from various international courts and legal instruments. However, it is pointed out that the application of labour law and international law to protect the interests of individuals against a state is an exceptionally sensitive and controversial issue. It is suggested that the international relationship between two states be used as a holistic framework, but it is cautioned that international law limits the diplomat employer's liability both in terms of the Bill of Rights and South African labour laws. The author shows that protection is afforded to diplomats/consular agents by international law. Moreover, the Diplomatic Immunities and Privileges Act (DIPA) of 2001 is discussed. It is submitted that employees are not prevented from taking legal action against a diplomat/consular employer in South Africa in terms of the Labour Relations Act (LRA) or the DIPA. The author suggests that diplomatic employees and employers should be made aware of their rights and obligations in this regard. In essence what really matters to any labour lawyer is how it can be justified that a group of vulnerable employees (diplomatic employees) is left without a remedy while the employer as the stronger bargaining party is protected in terms of international law. The author submits that employees should have access to compulsory private arbitration in terms of an amendment to the DIPA or in terms of a treaty. This must bind a diplomat/consular employer from South Africa (as the sending state) in a foreign state, and a foreign diplomat/consular employer in South Africa (as the receiving state) to protect employees. It is suggested that such a provision should be included in diplomatic contracts of employment after ratification of a treaty, even before it is enacted into relevant laws in South Africa. In view of the sensitivity and international consequences of labour disputes for states, it is suggested that private arbitration could serve as a useful dispute resolution procedure and an acceptable alternative to the general options available in terms of the CCMA, the labour court and the high court. It is suggested that the full protection of diplomatic employees' labour rights cannot be based on the status of their employers. Finally the author argues that lifting the veil of diplomatic immunity could provide a satisfactory interplay between labour law and international law to support the interests and rights of both parties to the diplomatic employment relationship.

The Effect of the Global Economic Recession on the South African Labour Market

Unlike most other countries in Africa, South Africa has historically been a significant player in international markets. Given this global economic engagement, South Africa felt the effects of the global recession both quickly and deeply when some of the major markets in the world were struck by the economic meltdown in 2008. Major sectors within the South African economy began to retrench employees thus testing the efficiency of the South African retrenchment laws. This paper highlights the impact of recession within the South African labour market and assesses how the government responded to these phenomena. DOI: 10.5901/mjss.2014.v5n23p380

Employment Creation Through Small, Medium and Micro Enterprises (SMMEs) in South Africa: Challenges, Progress and Sustainability

South Africa is characterized by the persistence of structural and cyclical unemployment which manifests in 24, 7% of the country’s working-age enduring long term joblessness. This socio-economic plight has engendered the promotion of Small, Micro and Medium Enterprises (SMMEs) as instrumental vehicles for employment creation despite formidable challenges they face. As much as the SMME sector absorbs the majority of total labour force, their failure to resist internal and external shocks restricts growth and graduation into the formal sector. SMMEs are renowned for short lifespans, poverty wages and precarious employment opportunities suggesting they fail to lift the boards. It is against this backdrop that this paper concludes that, it is imperative to, firstly, increase financial and non-financial support, sector-specific research and the design of customized interventions as well as reducing regulatory constraints on SMMEs in order for the small businesses to survive, grow and create sustainable employment for the discouraged South African labour force. The purpose of this paper is to expose the South African employment challenge, trace SMME progress (or lack thereof) in employment creation, identify constraints faced by small entities and present recommendations as, perhaps a way forward for the exacerbation of small entity productivity, improvement of earnings of the working poor and getting the poor working. DOI: 10.5901/mjss.2014.v5n25p65

The Concept of Managerial Prerogative in South African Labour Law

Managerial prerogative has two components: the power to manage industrial capital and the power to command labour. An employer owns the capital and has the power to decide how to perform or control his or her affairs. An employee works in order to survive. The employer allocates tasks to the employees that must be done adequately. Since 1994, the managerial prerogative has been severely restricted by the legislature to protect both employers and employees. The employer has the right to appoint or recruit employees in the workplace. The Employment Equity Act compiles the designated employer to elaborate employment policy that implements affirmative action to benefit persons in previously disadvantaged groups. The right to dismiss employees has been severely affected. Every dismissal of an employee is subject to substantive and procedural fairness requirements. The commissioners and labour courts usually review the employer’s decision to dismiss employees. If they found the dismissal to be substantively unfair, they can award reinstatement, re-employment or compensation. Employers have the absolute right to organise their affairs and even dismiss employees for operational requirements. When implementing dismissal for operation requirements, the employers have to consult the employees. The employees can strike in order to dissuade the employers from implementing dismissal based on operational requirements. The employer has right to dismiss employees for poor work performance. However, they must be given a reasonable time to improve their performance standard. Collective bargaining has severely diminished the managerial prerogative. There is no duty to bargain. However, the Labour Relations Act creates a framework whereby all parties have to promote collective bargaining. Employees have organisational rights to form or join a trade union and office-bearers are entitled to take reasonable time off to perform their union activities. In the light of the above, the concept of managerial prerogative has been severely affected. DOI: 10.5901/mjss.2014.v5n20p424

Micro-evidence on day labourers and the thickness of labour markets in South Africa

The South African labour market is characterised by sharp segmentation, high unemployment and apparently limited informal sector employment. Recent work has focussed on the importance of the Micro-evidence on day labourers and the thickness of labour markets in South AfricaThe South African labour market is characterised by sharp segmentation, high unemployment and apparently limited informal sector employment. Recent work has focussed on the importance of the quality of education while others have argued that the rigidity of the labour market constrains employment growth. This paper considers the spatial aspects of the day labour market and argues that the size and proximity of economic activity found in agglomerations ensure a thick labour market that allows for better matching between workers and jobs. The results indicate that the day labourers who were hired by the same employer more often received higher earnings. Once workers have a matric qualification they receive earnings above the average, as do workers who have completed vocational training. Skills, as well as factors associated with a thicker labour market are positively associated with wages. The thicker metropolitan labour market allows workers to become more specialised and receive higher earnings. This has important policy implications and calls for the development of people and places.

Meeting the challenge of the work-life balance in the South African workplace

The work-life balance (WLB) construct as a business imperative has been of growing concern in organisations outside South Africa for the past two decades, particularly given the pressure to create a sustainable global competitive advantage through human capital. Within the last decade this aspect has been prominent in various forums. However, no studies as yet provide insight into the applicability of WLB models to the South African workplace. The present article therefore explores the composition of a WLB system, and analyses constraints on its application under the conditions of the South African labour market.

What Can Be Done about Strike-Related Violence?

Recent newspaper reports and several decisions of the South African Labour Court illustrate that strike-related violence continues to be a destructive feature of industrial action. The misconduct includes the murder of non-strikers, destruction of property, random plundering of street-based traders, and intimidation. In the strike context labour law is proving to be an inadequate framework to regulate mob violence and criminal activity. Employers lack police expertise and powers to prevent and control a strike while it is occurring and to investigate strike-related misconduct after the strike. In the workplace, disciplinary action is often thwarted by the intimidation of witnesses. The mechanisms of control within labour law are mainly judicial. Employers can turn to the courts for an interdict to stop a strike or to restrict aspects of it. Employers can later seek a court order for compensation for loss attributable to the strike. If there is evidence of intimidation or other criminal activity, criminal charges can be laid. The courts may be prepared to suspend or nullify the protected status of a strike because of violence. These legal mechanisms are largely reactive and punitive, and a more holistic approach to the problem is required. There is a body of literature outside of law which helpfully explains the psychological, sociological and economic factors that contribute to mob violence. A fuller understanding of these factors, together with a robust and systematic pre-strike facilitation process which is supportive of good-faith negotiation, is proposed as pre-emptive measures to improve the situation. Finally, this article will consider comparative law insights into the regulation of misconduct during strikes.

The Employment Equity Act (EEA) as an Instrument for Employment Equity in the South African Labor Market

This paper seeks to critically examine the Employment Equity Act (EEA) as an instrument of achieving employment equity in post apartheid South Africa. Special emphasis will be placed on the policy of affirmative action. In this article we will attempt to illustrate how focusing on affirmative action and failure to implement policies could pose a threat to the achievement of equity in the South African labour industry. This paper was prepared by means of a literature survey wherein various previous literatures were interrogated including the actual Act in concern. In a nutshell it can be argued that the EEA as a piece of legislation has managed to augment equality in opportunities at the same time addressing the past imbalances. However there are concerns that affirmative action may pose a challenge as it is presented in discriminatory language and if handled carelessly may undermine merit, leading to disenfranchisement of deserving individuals. Another concern is that it could be used as a front by the political elite to harbor elements of corruption and nepotism to the disadvantage of the poor of the poorest amongst designated groups. DOI: 10.5901/mjss.2014.v5n9p578

Reinstatement in South African Labour Law

Once a court or an arbitrator finds that an employee has been unfairly dismissed, they are empowered to order the employer to reinstate or re-employ the dismissed employee or pay compensation to the dismissed employee. Reinstatement is the primary remedy if the dismissal is found to be substantively unfair. Reinstatement restores the employee to the position he or she occupied before the dismissal on the same terms and conditions. It rectifies the effect of the unfair dismissal and safeguards job security by restoring the employment contract. Reinstatement can be ordered from any date not earlier than the date of unfair dismissal. The arbitrator or the court has discretion to order reinstatement and they must judicially exercise the discretion. There are circumstances where reinstatement may not be ordered. They include, for instance, when the employee does not want to be reinstated or re-employed, where a continued employment relationship would be intolerable. Furthermore, the reinstatement will not be ordered where it is not necessary or practicable for the employer to reinstate or re-employ the employee. Finally, reinstatement is not appropriate if the dismissal is unfair only because the employer did not follow a fair procedure. Despite these exceptions, the reinstatement continues to be the primary remedy for unfair dismissal. It is submitted that where a dismissed employee has found a new job, compensation must be awarded as the reinstatement is not appropriate for the employee in these circumstances. DOI: 10.5901/mjss.2014.v5n9p256

Rising Unemployment in a Growing Economy: A Business Cycle, Generational and Life Cycle Perspective of Post-Transition South Africa’s Labour Market

This paper performs age-period-cohort decompositions of post-apartheid South African labour market outcomes in a period where unemployment worryingly rose, despite robust economic growth. We disentangle short-term from long-run factors, concluding that the first post-transition decade led to higher equilibrium unemployment. Claims of jobless growth over the business cycle are invalidated, with unemployment following a counter-cyclical pattern. Rather, generational components highlight long-run wage rigidities, decreases in labour demand within poorly educated groups and a gradual increase in participation amongst the most recent birth cohorts, reflecting higher education levels and changes in household formation. A disproportionate surge in entry amongst the very youngest (who were affected by post-transition education reforms) explains why unemployment rose in spite of an economic upswing in this period, and raises the concern of labour market scarring for this group.

Contracts of Employment of Domestic Workers: Compliance with the South African Labour Law

An employment relationship is the legal relationship created through the conclusion of a contract of employment between an employer and employee. Thus, it is assumed that determining the validity of employment contracts of domestic workers is an important matter for explaining the employment relationship in the current study. The target population in this study comprises domestic workers in the area of Vanderbijlark in southern Gauteng. The areas covered include: South-west 1; South-west 2; South-east 3; South-west 5; and South-west 5x1. Questionnaires were administered and interviews were conducted with the domestic workers who happened to be at the particular shopping centre or bus stop, at the particular time when the researcher was present for such purposes. Accidental sampling was chosen, because of its convenience. It can be concluded that a contract of employment should play an important role in clarifying what is to be expected from each party. The greater the clarity as to what is expected from each contractual party, the less the chance there is of misunderstandings in the relationship. Thus, no matter how widely domestic workers are covered by labour laws in the new South Africa, and no matter the efficiency of South African labour legislation, domestic workers will continue to be disadvantaged and exploited by their employers if they continue to form employment relationships in the absence of valid contracts of employment. DOI: 10.5901/mjss.2014.v5n3p86

Fairness of Dismissal as a Sanction for Misconduct in South African Labour Law

In determining whether a dismissal based on misconduct is fair, all the facts surrounding the misconduct must be considered. The Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner had to determine whether or not a misconduct dismissal was fair. CCMA unfair dismissals arbitration proceedings constituted hearings de novo which meant that the CCMA commissioner had to make his finding, as to the fairness of the dismissal, not on the basis only of evidence led at the internal disciplinary hearing, but on the basis of all evidence led at the CCMA arbitration proceedings, including evidence led that had not been led at the internal disciplinary hearing. The Constitutional Court had to decide whether a commissioner at CCMA arbitration was performing an administrative function. The Court concluded that the commissioner arbitration was an administrative action but that Promotion of Administrative Justice Act No.3 of 2000 is not applicable to CCMA arbitration awards. The fairness of dismissing an appellant from employment must be tested against the review standard laid down by the constitutional court in Sidumo. DOI: 10.5901/ajis.2014.v3n1p139

The Effect Of Higher Wages On Production Cost And Mechanization: A South African Maize Sector Study

The South African labor market was recently characterized by violent and hostile labor strikes by workers demanding exorbitant wage increases. These demands and violent protests overflowed to the agricultural sector, followed by an announcement of a 51% increase in the agricultural minimum wage. Labor costs form an integral part of a producers production costs and labor increases will therefore directly affect the profitability of producers. The purpose of this study is to investigate the effect higher wages have on the South African maize sector. Furthermore, to determine whether there is a relationship between higher labor cost and increased mechanization in the maize sector. Quantitative and qualitative research techniques were utilized to address the research problem. The findings of the study include that the higher wages do not have a significant effect on the maize sector as it is less dependent on manual labor and therefore more tolerant to wage increases. Furthermore, it was determined that there is a relationship between the maize sectors level of mechanization and the impact of higher wages. It was found that the maize sector is more developed and mechanized than other agricultural sectors. Notwithstanding, it is recommended that the sector should maintain the investment in mechanization to increase global competitiveness.

Partial Identification and Bound Estimation of the Average Treatment Effect of Education on Earnings for South Africa

AbstractWe partially identify the average treatment effect of education on earnings and non‐parametrically estimate its upper bound for African, Coloured (mixed race) and White males in South Africa. We address endogenous selection into education, cohort effects and endogenous selection into work. Using the September 2007 South African Labour Force Survey, the upper bound estimates are considerably lower than existing parametric point estimates of the return to education. As a lesson, policy makers should focus less on increasing the amount of education obtained by Africans and Coloureds, but rather on measures that can grow the return to existing levels of education.

The Moving Finger: sms, on-line communication and on-line disinhibition

Julien Hofman discusses a recent case before the South African Labour Court in which a person resigned from their post by sms, and then retracted the resignation, including a discussion of whether on-line disinhibition should be considered by the courts.

The Impact of the <i>Labour Relations</i> Act on Minority Trade Unions: A South African Perspective

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation.The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights.Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level. It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.Keywords: Minority unions, collective bargaining, freedom of association, organisational rights, international labour standards.

Can Teaching be Declared an Essential Service? A Comparative Analysis of the South African Legal Position and International Labour Organisation Standards

The Right to Education is expressly protected in s 29 of the Constitution of the Republic of South Africa, 1996. While teacher strikes may hamper education - since students are denied instruction during the strike - they may also benefit students. Teachers do not always strike for personal economic gain and do at times strike for better education. In South Africa prior to 1994 teachers often went on strike against the apartheid government's education policy. For example, the Transvaal African Teachers' Association went on a number strikes as a sign of opposition to Bantu education saying that it was to be used to 'produce ignorant ... cheap labour ... of an oppressed people'. In Government of the Western Cape Province v COSATU a number of unionists, including teachers, protested against the poor state of education in the Western Cape.

Institutions, power and para-state alliances: a critical reassessment of HIV/AIDS politics in South Africa, 1999–2008

ABSTRACTFrom 1999 to 2008, delays in the adoption of a comprehensive treatment and prevention programme shortened the lives of people living with HIV/AIDS in South Africa. While the slow implementation of antiretroviral therapy has been attributed to a lack of institutional capacity, dissident views on HIV/AIDS and the effects of fiscal austerity, it was also an expression of power. This article analyses how the South African HIV/AIDS movement overcame this exercise of power by the AIDS dissident faction of the African National Congress (ANC) by building an alliance with the South African labour movement and moderate elements within the ruling party. The ANC's dissident faction responded to this by developing para-state partnerships with non-state organisations to support the AIDS dissident agenda. This study highlights the need to expand the para-state concept to take into account a wider range of social formations and the historically particular conditions under which they emerge.

Theodor Mommsen and the Liberal Opposition to British Imperialism at the time of the Second South African War of Independence (1899-1902)

The German ancient historian, Theodor Mommsen, was widely admired in 19th-century British society. It came as shock then when Mommsen trenchantly condemned the British declaration of war against the Boer Republics in 1899. The force of this critique was underscored when the Swedish Nobel Prize committee awarded Mommsen the award for literature in 1902 much to the surprise of many, including Mommsen himself. Mommsen's high-profile attack on the war was in part based on his sympathy for what he called the ‘little German republics’ in South Africa and his views coincided with the intensely nationalistic fervour in both England and Germany at the time of the ‘scramble for Africa’ that ultimately led to the outbreak of World War I. However, Mommsen's views were shared by British Liberals, one of whom, the Australian-born Gilbert Murray, who later played a vital role in the foundation of the League of Nations, and who was a critic of South African labour practices, happened to be a Classicist. The views of these men contrast with those of the later National Socialists in Germany, who admired and later emulated the ruthless tactics of Cecil John Rhodes and his associates.