Among white workers, there was significant unrest, and major strikes took place in 1907, 1913, 1914 and 1922 For a period of sixteen years, from 1979 to 1995, several critical developments occurred in the field of labour law in South Africa, beginning with a radical change in the first of these years, when a significant Commission of Enquiry was held, resulting in the establishment of an Industrial Court, which was given extensive powers to mould, change, shape and develop the law.
In Hoffman v South African Airways, the court found that people living with HIV constitute a minority, to which society has responded with intense prejudice, stigmatization and marginalization.
The conclusion of the contract merely gives rise to contractual claims; it does not confer the status of an employee or employer on the parties for the purposes of the Labour Relations Act.
The uncertainty continued with Auf Der Heyde v University of Cape Town,[55] where the Labour Court accepted that the approach in Dierks was correct, and that section 186(1)(b) did not include a reasonable expectation of permanent employment.
An employer's refusal to allow an employee to return to work after she has been on maternity leave (paid or unpaid) will now fall within the ambit of "dismissal" for the purposes of the Labour Relations Act.
In Fry's Metal v NUMSA,[62] the court held that the dismissal of employees who refuse to accept a demand does not infringe section 187(c) if the employer intends to get rid of the workers permanently.
It therefore includes reasonable absences for medical attention and changes in the woman's physical configuration, which may dispose certain employers to fire employees engaged in certain types of work.
In BMD Knitting Mills v SA Clothing & Textile Workers Union, the court departed from its deferential approach and focused on the fairness of the reason to both parties: The starting point is whether there is a commercial rationale for the decision.
Fairness, not correctness is the mandated test.In Chemical Workers Industrial Union v Algorax, the court considered itself to be entitled to scrutinize the employer's business reasoning and decision-making in considerable detail.
This list is not exhaustive: In National Education Health & Allied Workers Union v University of Cape Town, the court held as follows: In deciding whether a business has been transferred as a going concern, regard must be had to the substance and not the form of the transaction.
Provided that the strike has obtained protected status in terms of the law—in other words, is not prohibited, and the prescribed procedures have been followed—such economic hardship is considered to be part and parcel of the power struggle between employees and their employers: "In fact, this is the whole idea!
The National Manpower Commission, a statutory body comprising representatives from employers organisations, trades and the State, which would meet to discuss economic and industrial policy, was duly established.
As such, the common law did not concern itself directly with collective bargaining; its focus instead was on the rights and duties of individual employees and employers, as reflected in the contract on which their relationship was based.
It is equally important in the field of social and economic activity and is particularly significant as a basis for securing trade union freedom from interference by the employer on the one hand and the government on the other.
"Freedom of association must therefore be seen," according to Budeli, "as the foundation of the collective bargaining process,"[93] which contributes to ensuring fairness and equity in labour matters, and to facilitating orderly and stable industrial relations.
"[95] In the committee's view, freedom of association should be guaranteed in such a way as to allow trade unions to express their aspirations, and so as to provide an indispensable contribution to economic development and social progress.
A trade union which attempts, through its constitution, to limit its members to persons of a certain race or sex could find such a provision ruled invalid; "it would certainly not be registered in terms of the LRA.
The question has arisen, however, of whether or not groups excluded from the application of the LRA,[101] such as the Defense Force, are entitled to form and join trade unions, based on their constitutional right to freedom of association.
A senior manager involved in the formulation of an employer's approach to the annual wage negotiations (including its "final offer") may not be able to perform his functions properly if he is also a member of the union sitting on the other side of the bargaining table.
Such arrangements are said to give union organizers a sense of security, and to enable them to devote themselves to the long-term interest of their members, "instead of collecting subscriptions and trying to persuade reluctant employees to join.
[113] According to the committee, union security arrangements are compatible with the ILO Conventions on freedom of association, provided that they are the results of free negotiations between workers’ organisations and employers.
However, when trade union security clauses are imposed by the law itself, then the right to join an organization of one's own choosing is compromised, and those provisions will be incompatible with the ILO Convention.
Grogan describes "the difficult position in which shop stewards find themselves," keeping two sets of books, or attempting "to serve two masters,"[117] their employer and their trade union—masters whose interests are often diametrically opposed.
In terms of section 15(1), the office-bearer of a registered, sufficiently representative trade union is entitled to take reasonable leave during working hours for the purpose of performing the functions of his office.
Item 4(2) of the Code of Good Practice: Dismissal, seeks to discourage victimization of shop stewards by requiring employers to inform and "consult" their unions before taking disciplinary action against them for any reason.
"[121] In this regard, the commissioner must consider If the employer is of the opinion that the union is no longer representative, it may refer matter to the Commission for Conciliation, Mediation and Arbitration, requesting that it withdraw the organisational rights.
The LRA would prohibit a strike in support of a demand that the employer grant all or some organisational rights to a union, because such a dispute may be referred to arbitration in terms of section 21.
The court's interpretation of this was that, if a minority union asks for, but does not succeed in acquiring, the organisational rights in question, and if conciliation subsequently fails, the dispute-resolution mechanism is to strike for it.
The word "collective" refers to the fact that employees join in trade unions to increase their power in bargaining with employers over wages, working conditions and any other matters of mutual interest between them.
The question of whether the constitutional right to bargain collectively includes a duty on the other party has arisen in connection with one group of persons not covered by the Act: members of the South African National Defence Force (SANDF).