You are in : Human Resources > Labour Law

Lexis Nexis Annual Labour Law Seminar 2010

Review: Current Labour Law 2010

Fri, 26 Nov 2010 11:27

The last quarter of the year is traditionally a time for conferences and seminars; the human resources and labour law fraternity have the choice of a number of seminars reviewing and presaging employment law changes, and commenting on case law.

This year the Lexis Nexis 21st Current Annual labour Law Seminar introduced a new presenter - Alec Freund, who replaced Halton Cheadle. Like Andre van Niekerk, who also previously contributed to these seminars, Cheadle has now joined the Labour Court – and will be writing the judgements, rather than commenting on them.

Further changes to the format at this year’s presentations, were in addition to the regular hardcopy file of the presentation overheads, and the Current Labour Law 2010 text book, delegates received a CD containing electronic copies of all the textbooks from 2005 to 2009. Although many practitioners still enjoy the hardcopy book, being able to search electronically for references will be of enormous value to those working under deadline pressures.

The previous 20 seminars, afforded an opportunity for a reflection on two decades of South African labour law – two highly eventful decades, which have seen a new Constitution, a completely revised Labour Relations Act and the introduction of Employment Equity and Skills Development legislation.

In addition, the influence of the Constitution has gradually permeated to the workplace, as have other areas of law such as the Electronic Communications and Transactions Act, and the Public Service as employer has provided a need to decide on the boundaries between administrative law and employment law.

Although the major areas of labour law have been settled, a few trends remain areas of contention:

• One area covered in the seminar is the influence of common law. Over the last few years, the seminars have “documented the development of common law contractual principles by our courts to protect employees against unfair dismissal and other unfair employer actions.” (p1 Current Labour Law 2010) These cases have introduced the concept of “fair dealing”. However, the Supreme Court of Appeal has “done an about-turn” in SA Maritime Safety Association v McKenzie (2010) 5 BLLR 488 (SCA), rejecting this idea. PAK Le Roux provides a detailed analysis of contract principles and how this common law contractual right derived from the Constitutional right to fair labour practices.
• Human Resource practitioners will be interested in the discussion of contractual resignation. Does the employer have to “accept” the resignation? This has been rejected, and the employer cannot refuse to accept the resignation. Does a resignation sent by SMS constitute a “written resignation”? Yes, in terms of the Electronic Communications and Transactions Act, the SMS constitutes a “data” message.
• Whether the State as employer is bound by Administrative law has been addressed by the Constitutional Court, where it was rejected. However, another route has been found via s158(i)(h) of the Labour Relations Act, and it seems that this section “could possibly apply where the LRA provides no other remedy for the employee”.(p11)
• Two other areas covered in detail are the “definition of an employee” and “temporary employment services”, both of which justify a purchase of the textbook, if you were unable to attend the seminar, as does the comprehensive range of bread and butter labour law issues covered in Peter Le Roux’s Individual Labour Law section.

Clive Thompson comments on the Collective Bargaining area, where a range of union obligations under the LRA are covered:

• The role of representatives in the bargaining process, and the point when a binding collective agreement is concluded,
• The definition of a “workplace”, central to recognition as a bargaining agent. With reference to the Communication Workers Union and Daily Dispatch (2010) 31 ILJ 1496 (CCMA), he comments: “The definition of a workplace is more than a little elastic.” (p69), and
• What is just cause to deregister a union?

Thompson also covers the Restructuring and retrenchment, and comments that there are two main strands of these cases, namely: that “the boundaries of the section 197 provisions on the transfers of businesses are still being stretched” and secondly that employers seem to be trying to bring what are dismissal cases that look to fall under misconduct or incapacity, under operational requirements.

Alec Freund covers Employment discrimination and Strikes and Lockouts, both areas of recent increased activity. Under discrimination the Solidarity obo Barnard v SAPS (2010) 5 BLLR 561 (LC) 563 case, where the unfair discrimination claim was upheld by the court is discussed. This case has received widespread print and electronic media reporting, and it is constructive to read Freund’s comments. Retirement age remains an area of contention, particularly whether or not an agreed retirement exists.

Strike activity has increased during 2010. The Constitution provides that every worker has the right to strike (s23), and the LRA gives effect to this right. Freund points out that the interpretation of the LRA clauses are still not settled, that employers want to push the boundaries to argue that the strikes affecting them are not protected under the LRA, and he states that the theme “running through many of these cases is how the courts grapple with the emerging doctrine of purposive rather than literal interpretation. (p115).

The appendix to the Current Labour Law 2010 publication contains the Labour Court Consolidated Practice Directive 2010.

This publication and those of past years provided on the CD represent an overview of how labour law has developed to date and what still needs to be settled, and represent an invaluable resource to human resource and labour law practitioners.