Exploring Section Essay

Abstract Since the boil Relations Act 66 of 1995 came into exertion the South African force market has underg champion numerous changes. Such a consequence is the rise in the number of employees engaged in irregular or non-standard craft. This paper responds in the affirmative to Cheadles assertion that the Labour Relations Act 66 of 1995 provides inadequate rampart to vulner open doers much(prenominal) as non-standard employees. I explore the recent attempts to scarper the safeguard of accepted childbed and aff subject security laws to some categories of non-standard employees and I recognise their shortcomings.I suggest that senior and position management employees no longer affect statutory cherishion from unfair craunch practices as such egis can be attained finished contractual means. I rede that there is presently an urgent necessity to create a statutory arrangement which affords adequate protection to non-standard workers. 1. Introduction The incumbent South African poke canon is one which affords too much protection to those who do non need it and far too little to those who require it some.In his paper Cheadle explores the consequences of the changes to the turn over market since 1994 and recognises that the circulating(prenominal) fantasyual structure has rifleed to check up on these changes. The first source for re determine is that there is a huge protection hole casual workers atomic number 18 not protect, informal workers are not protected, marginalised workers are not protected. This results from the changes undergone by the craunch market and the fact that the flow rate remedies for unfair labour practices in the Labour Relations Act 66 of 1995 keep never been subject to careful scrutiny.The most hard-hitting response to this problem is a re-evaluation of the current labour code. Cheadles master(prenominal) telephone circuit is that there is no longer a need to protect the running(a) class against un fair labour practices as they are able to protect themselves by means of and through contractual means. I concur with Cheadles affirmations and in strengthening my argument I localise firstly on the truncated muniment 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 decree does not extend protection to non-standard workers this based on the fact that protection rarely goes beyond the employment family. I further argue that if middle and senior employees can contractually negotiate their hours of work and goods to whatsoever remuneration for overtime work then surely this is possible for purposes of unfair labour practices. 2. Origins of unfair labour practicesThe first observation made by Cheadle is that the police relating to the individual employment relation was fully codified in esteem to dismissal but only roughly codified in honour of the residue. Cheadle questions the lack of scrutiny applied to the interpretation of surgical incision 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 simplely be follows any labour practice which in the opinion of the industrial judicature is an unfair labour practice. This wide definition was a mechanism think to protect white workers against less favourable conditions of employment in the confront 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 c omprehensively defined.The protection regarding the right to strike, refusal to negotiate in good faith, selective dismissal or re-employment, and the use of derogatory spoken communication were then built in to the jurisprudence. However this was considered a sort of crazy jurisprudence as it governed both individual employment relationships and collective talk terms 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 prefatorial Conditions of usage 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 o f the polity known as a charter for middle and back management. The account statement 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 adept 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 take on 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 meagre statutory protection for workers utilize 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 suck up also contributed to the rise in atypical employment. This constitutes the crux of the banter in that law put right should rather shift its focus from change magnitude command to the achievement of labour market flexibility in set 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 acknowledges 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 fire 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 hazardous litigation and confusion as this is the only source for structure and order. quite a than tearing down well serving structures law reform should rather work on incorporating protective provisions into the legislative framework. A testimonial made by Mathias Nyenti is that trade unions should become more actively tangled 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 perchance 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 rectitude 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 income tax return 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 cloud 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 intermediate workers. This mirrors the position in appointment and hiring.Which brings us back to the questiondo 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. Cheadles argument is therefore not for greater inclusion but rather an reference of the remedies and relief under existing common law and contract law. 6. trade 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 trust 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. enchantment I am in agreement with Cheadles assertions on the m ost 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 hitherto 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