Collective bargaining (coupled with the right to strike) has become a primary means to force employers through negotiation to achieve the improvement of standards and conditions of employment. The South African labour market has been plagued by unprotected strikes as well as violent and lawless behaviour during both protected and unprotected strikes. Some have said that the collective bargaining process is in trouble and has failed the objectives intended by the Labour Relations Act. The fact that collective bargaining in South Africa and elsewhere is quite adversarial puts these criticisms into the spotlight again. Calls to explore a participatory structure, where distributive and non-distributive issues are separated from each other, supplementary to collective bargaining have been made again. What immediately comes to mind is the system of workplace forums, which has been unsuccessful in South Africa thus far.
South African labour affairs are in a volatile state. Conflicting rights and interests as well as the balancing of these rights and interests are contributing to this state of affairs. In recent years, the contentious issues of workers' right to use their economic power to put pressure on employers and employers' recourse to lock-out and replacement labour have come under the spotlight again. Prolonged, violent and unprotected strikes have raised the question whether our industrial relations framework should be revisited, and have complicated matters even further. The question whether employers may use replacement labour and have recourse to lock-outs when an impasse exists during wage negotiations is considered in the context of the adversarial collective bargaining framework in South Africa. KeywordsCollective bargaining; industrial relations; strikes, defensive and offensive lockouts; pickets; replacement (scab) labour. ……………………………………………………….
OPSOMMING Verantwoordelike Vakbond Optrede Gedurende Kollektiewe Bedinging enNywerheidsaksie: Is ons Gereed?Vakbonde speel nie net 'n belangrike rol in die kollektiewe bedingingsproses (ingesluit nywerheidsaksie) nie maar ook in die breër ekonomie en samelewing. Daar word dus verwag van vakbonde om nie net verantwoordelik op te tree wanneer hulle beding namens hulle lede nie maar ook as verantwoordelike burgers in die algemeen op te tree. Hierdie verantwoordelikheid word verder uitgebrei wanneer vakbonde in die publiek wil protesteer en moet hulle dus verantwoordelikheid neem vir hul lede se optrede in die openbaar. In hierdie artikel word ondersoek ingestel na die vraag of vakbonde verantwoordelik gehou moet word vir die optrede van hul lede wat skade aan ander se eiendom veroorsaak sowel as of vakbonde anders moet optree wanneer hulle met werkgewers beding vir die verbetering van werknemers se lone en diensvoorwaardes.
There are some cross-cutting issues concerning company and labour law as far as the issue of flexibility and workers' aspirations are concerned. Many prescriptions relating to the organisation of a workplace and rights and duties and employment contracts have an impact on the prerogative of management. It should also be noted that there are generally limitations to the scope and effect of legal provisions and, accordingly, employee protection derived therefrom. ... Company law regulates the actions of companies in the market. Unfortunately, very little attention is bestowed on the interests of employees in company law, either nationally or internationally. As far as insolvency law is concerned, the position is not much different. There would thus seem to be a vacuum in research in this field, since it certainly cannot be argued that employees are not closely connected to the companies they work for and on which their livelihoods depend. Employees deserve to have more attention paid to their often precarious position. It should be evident that labour can only do so much and that other branches of the law, including company law, must address some of the new challenges facing markets. 15 Glynn 16 adds (in his discussion of the American position) that corporate law, in simplified terms, usually purports to serve two kinds of functions. First, it establishes the legal form of the firm and it also provides whether its attributes can be waived or not. These attributes include its legal personality, equity ownership structure, decisional structure, and limited liability. 17 Second, corporate law potentially addresses three sets of "value-reducing forms of opportunism" or agency problems: first, a conflict exists between manager and shareholder interest; second, there is a conflict between the interests of controlling and non-controlling shareholders or shareholder groups interests; and third, there is a conflict between the interests of shareholders and of other stakeholders who may be viewed as outside the firm, including employees, creditors, customers, and society as a whole. 18 Although what is said above is true, it does not mean that scholars and lawyers in labour law have expressed no interest in the field of company law and vice versa. It is thus clear that both corporate law and labour law have provided certain fundamental starting points for analysis, each of which shapes the regulatory scope of the other. Corporate law, for example, bestows legal personality on business entities, and allows such entities to enter into bilateral employment contracts with 15
The purpose of the Labour Relations Act 66 of 1995 (the LRA) is to advance economic development, social justice, labour peace and democratization of the workplace. The primary objects of the LRA, inter alia, include the following: “to provide a framework within which employees and their trade unions, employers and employer’s organisations can (i) collectively bargain to determine wages, terms and conditions of employment, and other matters of mutual interest; and (ii) formulate industrial policy”, and “to promote orderly collective bargaining [and] (ii) collective bargaining at sectoral level”. The LRA in its purpose provision also makes provision for the advancement of the effective resolution of labour disputes and employee participation in decision-making in the workplace. Central to collective bargaining is the right to strike and the recourse to lock-out, respectively available to employees and employers. The collective-bargaining system has since 2007 become increasingly adversarial as “a decline in negotiating capacity, the re-emergence of non-workplace issues negotiations, and the rise of general mistrust between the parties” as the key factors contributing to the worsening of the collective bargaining is evident. The focus on strikes, has unfortunately, not been positive, as some industries have been plagued by violent, and/or unprotected and sometimes protected strike action that carries on for long periods of time. The focus of this case note is, however, not to look at the latter categories of strikes but rather to discuss a very contentious issue related to strike action: What constitutes mutual interest with reference to strikes? Two recent cases (Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members (2014) 35 ILJ 983 (LAC); and Vanachem Vanadium Products (Pty) Ltd v National Union of Metal Workers of SA Case No J 658/14) will be evaluated against the backdrop of existing literature and case law on this issue.
Hostile acquisitions have a significant impact on managers and employees. The possibility of an acquisition creates uncertainty and when the acquisition turns hostile it is even more disruptive to the target organisation. Also, negative perceptions are often created in the media about the acquirer that influence employees' attitudes in the target organisation. Processes to successfully integrate the acquirer and target organisations are impacted by these antagonistic pre-acquisition circumstances.The Companies Act (no.71 of 2008) created opportunities for shareholders to hold an acquired company's management accountable for financial performance and the researchers set out to investigate how the intent of the new legislation played out in practice, by studying an acquisition that turned hostile. The single case study research methodology revealed the manoeuvring of both the acquiring and acquired companies which utilised the mechanisms available to them through the new legislative, regulatory and corporate governance landscapes. The researchers provide an extensive review of the relevant mergers and acquisitions' literature, as well as influence of the international legislative environment on the current local regulations. These regulations in turn, inform corporate governance and ultimately board behaviours. The researchers conducted qualitative interviews with key role players as well as legal and financial experts. The findings of the thematic analysis and triangulation process, informed a conceptual frame of three episodes.
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