The fixed term contract overhaul in the 2012 Labour Relations Amendment Bill (ref: art.222)
The fixed
term employment contract squaring up to the demand for decent jobs in 2011
in South Africa, was always going be a tough debate. On the one hand was a well
developed figure of our common law which drew deep from contract law principles
to withstand many unfair dismissal challenges upon termination. One of these
was challenging the exploitative practice of ‘rolling over’ or renewing
these fixed term contracts successively a number of times (sometimes, as sad
examples in our South African labour law history show, for 15 or more years),
thus effectively keeping workers in on-going employment, from becoming
permanent employees. Vulnerable workers were the worst to be impacted. Rolling
over, and the following problems which were years in the making, resulted in
labour Bills being introduced in 2010 :
Interpretation of section 197 of the LRA - New power to workers... and deal making employers (ref: art.1)
The Aviation
Union of SA & another v South African Airways (Pty) Ltd. & others
(2011) 32 ILJ (CC) 2861, a Constitutional Court ruling on section 197 of the 1995
Labour Relations Act of South Africa on business transfers, was applied and
followed shortly thereafter in the important further judgement a month later,
in Harsco Metals SA (Pty) Ltd & another v Arcelormittal SA Ltd & others
(2012) 33 ILJ 901 (Labour Court) at the end of December 2011 by Van Niekerk, J.
"A Transfer" - Something, or someone, must give. (ref: art.2)
The core requirements for section 197 to apply.
The Aviation Union of SA & another v South African Airways (Pty) Ltd. & others (2011) 32 ILJ (CC) 2861, a Constitutional Court ruling on section 197 of the 1995 Labour Relations Act of South Africa on business transfers, was applied and followed shortly thereafter in the important further judgement a month later, in Harsco Metals SA (Pty) Ltd & another v Arcelormittal SA Ltd & others (2012) 33 ILJ 901 (Labour Court) at the end of December 2011 by Van Niekerk, J.
The Aviation Union of SA & another v South African Airways (Pty) Ltd. & others (2011) 32 ILJ (CC) 2861, a Constitutional Court ruling on section 197 of the 1995 Labour Relations Act of South Africa on business transfers, was applied and followed shortly thereafter in the important further judgement a month later, in Harsco Metals SA (Pty) Ltd & another v Arcelormittal SA Ltd & others (2012) 33 ILJ 901 (Labour Court) at the end of December 2011 by Van Niekerk, J.
Sec. 197 comments (ref: art.3)
The Aviation
Union of SA & another v South African Airways (Pty) Ltd. & others
(2011) 32 ILJ (CC) 2861, a Constitutional Court ruling on section 197 of the 1995
Labour Relations Act of South Africa on business transfers, was applied and
followed shortly thereafter in the important further judgement a month later,
in Harsco Metals SA (Pty) Ltd & another v Arcelormittal SA Ltd & others
(2012) 33 ILJ 901 (Labour Court) at the end of December 2011 by Van Niekerk, J.
Challenges upon in-sourcing under section 197 of the 1995 Labour Relations Act: Competitors do not kiss and agree. (ref: art.7)
One of the
flawed assumptions in section 197 of the 1995 Labour Relations Act is that
incoming and outgoing employers (service providers) will agree, or are even
prepared to acknowledge that section 197 applies to their transfer
arrangements. It is one thing to acknowledge that section 197(7) obliges them
to enter into agreements on data objectively verifiable by accountants, such as
accrued leave and severance pay ; it is another to come to agreement that
section 197 applies in the first place. This is particularly true, as the
question whether a particular deal is indeed governed by section 197 remains a
vexed question in practice.