Exploring Section

1 January 2017

Abstract Since the Labour Relations Act 66 of 1995 came into effect the South African labour market has undergone numerous changes. Such a consequence is the rise in the number of employees engaged in atypical or non-standard employment. This paper responds in the affirmative to Cheadle’s assertion that the Labour Relations Act 66 of 1995 provides inadequate protection to vulnerable workers such as non-standard employees. I explore the recent attempts to extend the protection of certain labour and social security laws to some categories of non-standard employees and I recognise their shortcomings.

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I suggest that senior and middle management employees no longer require statutory protection from unfair labour practices as such protection can be attained through contractual means. I propose that there is presently an urgent need to create a statutory arrangement which affords adequate protection to non-standard workers. 1. Introduction The current South African labour legislation is one which affords too much protection to those who do not need it and far too little to those who require it most.

In his paper Cheadle explores the consequences of the changes to the labour market since 1994 and recognises that the current conceptual structure has failed to accommodate these changes. The first source for reform is that there is “a huge protection hole – casual workers are not protected, informal workers are not protected, marginalised workers are not protected. ” This results from the changes undergone by the labour market and the fact that the current remedies for unfair labour practices in the Labour Relations Act 66 of 1995 have “never been subject to careful scrutiny”.

The most effective response to this problem is a re-evaluation of the current labour legislation. Cheadle’s main argument is that there is no longer a need to protect the working class against unfair labour practices as they are able to protect themselves through contractual means. I concur with Cheadle’s affirmations and in strengthening my argument I focus firstly on the brief history and development of the concept of an unfair labour practice.

Through this exploration I evidence how the lack of proper scrutiny of unfair labour practices has resulted in an ill conceived provision. I argue that the current labour legislation does not extend protection to non-standard workers this based on the fact that protection rarely goes beyond the employment relationship. I further argue that if middle and senior employees can contractually negotiate “their hours of work and rights to any payment for overtime work” then surely this is possible for purposes of unfair labour practices. 2. Origins of unfair labour practices

The first observation made by Cheadle is that the ‘jurisprudence relating to the individual employment relation was fully codified in respect to dismissal but only roughly codified in respect of the residue. ” Cheadle questions the lack of scrutiny applied to the definition of section 186(2) and argues that there is a need to revise and reconsider the practicality of unfair labour practices listed in section 186(2) of the LRA. The idea of unfair labour practice was first introduced into the South African labour law by the Industrial Conciliation Amendment Act.

Under The Industrial Conciliation Amendment Act unfair labour practice was widely defined follows: “any labour practice which in the opinion of the industrial court is an unfair labour practice. ” This wide definition was a mechanism intended to protect white workers against “less favourable conditions of employment in the face of an extension to black workers of access to occupations previously reserved for whites. ” Because of this wide definition the legislature was obliged to intervene and in 1980 the concept of an unfair labour practice was more comprehensively defined.

The protection regarding the right to strike, refusal to negotiate in good faith, selective dismissal or re-employment, and the use of derogatory language were then built in to the jurisprudence. However this was considered a rather strange jurisprudence as it governed both individual employment relationships and collective bargaining relationships. By 1995, in devising the Labour Relations Act, the unfair labour practices were built into the Act by way of the whole portfolio of organisational rights.

The LRA was then negotiated and a set of transitional provisions relating to unfair labour practice where deferred until the Basic Conditions of Employment Act would be dealt with. When the time came the drafters failed to incorporate unfair labour practices and it was left as a transitional provision. It was finally incorporated through the 2002 amendments, where as Cheadle states, “a couple of words were changed” and it now constitutes the body of the statute known as a “charter for middle and top management. The history of unfair labour practice therefore strengthens the argument for the need to re-view the current legislation and to align it with the protection of vulnerable workers. 3. Regulated flexibility One of the underpinnings of the Labour Relations Act is the concept of regulated flexibility. Cheadle explains that in formulating the LRA the focus was channelled at achieving “efficiency, productivity and adaptability, but within the parameters or the limits of protection. This ties in with the concept of labour market flexibility which gives rise to “new types” of employment which include but not limited to, “non-permanent employment for instance fixed-term and part-time work, through labours broker, tele-work, seasonal work, student jobs, working from home, self-employment and subcontracted work. ” The current position is that there is insufficient statutory protection for workers employed in a typical work. Difficulty is further encountered in that the protection afforded under collective agreements does not extend to these forms of employment.

Employers’ attempts to avoid protective labour legislation and restraints of the traditional employment relationship have also contributed to the rise in atypical employment. This constitutes the crux of the discussion in that law reform should rather shift its focus from increasing regulation to the achievement of labour market flexibility in order to adapt to the changing economic environment as well as to extend the protection under labour legislation to marginalised workers. 4. Contract of Employment and the “protection whole” The contract of employment creates a standard form of employment.

It is the source from which protection and social security afforded under South African labour law is derived. According to the definition of employee in the LRA and BCEA this would mean that workers employed in a typical or non standard employment are ultimately excluded from the protection afforded under current labour legislation. Despite the wide definition of employee in that it includes “any other person who in any manner assists in carrying on or conducting the business of an employee”, non-standard workers such as part-time workers or home workers are still not protected by current labour laws.

Cheadle argues that the reason labour law legislation does not extend protection to these non-standard worker is based on the history of labour law and the contract of employment. He makes an interesting argument in that the link to the contact of employment must be severed so as to accommodate any worker who works in a sector irrespective of the existence of a contract of employment. I fail to see the rationale behind this assertion. Cleansing the labour legislation of the employment contract would only open up the flood gates for unwarranted litigation and confusion as this is the only source for structure and order.

Rather than tearing down well serving structures law reform should rather work on incorporating protective provisions into the legislative framework. A recommendation made by Mathias Nyenti is that trade unions should become more actively involved in extending protection to non-standard workers. However, trade unions are of two minds, on the one hand there is the need to promote the working conditions of non-standard workers but on the other is the fear that supporting labour flexibility will only increase non-standard employment and potentially corrode their support base. . Anti working class law? The next argument made by Cheadle and perhaps the most controversial is that, it has become unnecessary to protect middle and top management against unfair labour practices. The assertion is that these categories of workers can protect themselves through contractual means or otherwise through the common law. However, I question whether the common law is adequately equipped to deal with fairness in the workplace? For instance, if an employee is presented with a situation where there is no contractual rrangement in place providing for promotional prospects, such an employee cannot claim that the employer acted unfairly in not promoting that an employee. Cheadle further argues that there “is no need for the judicial regulation of the selection decisions (hiring, training, promotion) and those aspects of discipline short of dismissal (suspension, demotion and other disciplinary measures). ” In his breakdown of statutory unfair labour practice Cheadle first addresses the issue of recruitment and hiring and questions the reasoning behind its exclusion from the list of unfair labour practices.

He concludes that the legislation has put mechanisms in place to protect against victimisation, discrimination, and corrupt appointments and those should therefore constitute the parameters in which the legislation should operate. Simply put legislation should not interfere with the operational personnel decisions of the employer. The issue of promotion is an interesting one. Cheadle questions why senior and middle management are given the right to challenge a promotion whereas this has never been a problem for ordinary workers. This mirrors the position in appointment and hiring.

Which brings us back to the question–do senior and middle management really need such protection? The next unfair practice is the issue of demotion and I question why such a practice is regulated because as Cheadle asserts one cannot be demoted without their consent. If a worker is given an alternative between demotion and dismissal and the worker refuses to be demoted, that can be challenged under the law of dismissal. “Cheadle’s argument is therefore not for greater inclusion but rather an acknowledgement of the remedies and relief under existing common law and contract law. 6. Business perspective From a business perspective it is argued that an increase in labour market flexibility will attract foreign investment resulting in high employment levels and the mitigation of poverty. The argument is that over-regulated labour markets tend to have the opposite effect, reducing global engagement and the prospect of employment. “However, trade unions believe that government needs to protect its vulnerable workers against exploitation if it is to achieve its social transformation objectives. ” 7.

Conclusion The recent changes in the labour market have thrown vulnerable workers in a “protection hole” and the current labour legislation unfortunately fails to remedy this position. The bottom-line is that labour reform should be focused on protecting those employees who need protection the most such as workers in atypical employment. There is a great need not only for legislative reform but also reform of the institutions which implement the legislation such as the Commission for Conciliation, Mediation and Arbitration.

While I am in agreement with Cheadle’s assertions on the most part, the suggestion that the employment contract should be done away with is a highly controversial and one which I do not agree with. One provision which should be reviewed or even removed however is one which offers unwarranted protection to senior and middle employees who are able to protect themselves through contractual means. Section 186 no longer has a place in the legislative framework and should either be re-evaluated to include vulnerable workers or removed in its entirety. Bibliography Books Van Jaarsveld et al 2001 LAWSA 8

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