THE CONSTITUTIONAL GUARANTEE TO FAIR LABOUR PRACTICES: THE RECOMMENDATIONS TO INFORM POLICY (original) (raw)

The constitutional right to fair labour practices: a consideration of the influence and continued importance of the historical regulation of (un)fair labour practices pre-1977

Fundamina: a Journal of Legal History, 2016

Constitutional right to fair labour practices; historical development; common law's influence on development; common law's continued importance on * Lecturer, Department of Mercantile Law, Faculty of Law, University of the Free State. Parts of this article are based on sections (especially from ch 2) of the author's LLM dissertation A Critical Analysis of the Right to Fair Labour Practices (University of the Free State, 2013). The author would like to thank Prof JV du Plessis for his valuable comments and guidance as the supervisor of this study. A special word of thanks to Ms Hesma van Tonder (UFS), Ms Lydia Creamer (Johannesburg Bar) and Mr Tom Schuman (Parliamentary Library) in assisting my acquisition of necessary materials.

Revisiting the Zimbabwean Unfair Labour Practice Concept

Potchefstroom Electronic Law Journal, 2021

The 2013 Constitution of Zimbabwe entrenches the broad right to fair labour practices. The right is given effect to in Part III of the Labour Act (Chapter 28:01), which provides an exhaustive list of unfair labour practices which can be committed by employers, trade unions, workers' committees, and other persons. The Labour Act predates the 2013 Constitution. The constitutionalisation of the right to fair labour practices necessarily carries with it the attendant difficulties of reconciling the new rights and the pre-existing regulatory framework. This article seeks to contribute towards a practical understanding of the Zimbabwean unfair labour practice concept in the light of the constitutionalisation of the right to fair labour practices. It explores the nature and scope of the concept of unfair labour practice and examines its relationship with the constitutional right. Further, the contribution critiques the formalistic and conservative approach adopted by the Constitutional...

The equitable foundations of South African labour law: an historical and comparative study

2012

Of crucial importance is the relationship between equity and the so-called Constitutional values enshrined in the Constitution, such as life, dignity, equality, security of person, and security of employment. Other burning issues relating to the application of equity in South African labour law are also explored, such as the relationship between equity and lawfulness, public policy, morality, the boni mores, judicial precedent and the employer's prerogative-all within the context of the Constitutional imperative of fair labour practices for everyone. We attempt to show that much is to be learnt from the common law and the foreign law systems that we investigated. The main-if not the sole-aim of such an exercise should always be the harmonization of the whole of our labour law, but especially the statutory regime, with s 23(1) of the Constitution. It goes without saying that that would be a never-ending, organic process of realizing the ideal of comprehensive fairness in our labour dispensation. A brief word concerning the methodology adopted in this study. Both legs of the study, namely equity on the one hand, and labour law on the other, can never operate in isolation in any legal system. A legal system generally forms an organic whole. For this reason we have commenced each of our chapters with an examination of the general principles of equity that apply in a particular legal system, not only in labour law, but in law generally. This we followed up by a brief outline of the general labour law principles applicable in that legal system, and finally, an integrative consideration of the equitable principles underlying the labour law of such a system. Only in this way could we do justice to the subject of investigation and the title to this work. The reference systems used in this work are those of the Journal for Contemporary Romen Dutch Law and the Journal /ForJuridical Science for the footnotes and the bibliography respectively. 6 CHAPTER II ROMAN LAW 2.1. EQUITY AND LAW IN GENERAL Roman jurisprudence was not only thoroughly acquainted with the concept of equltv," but regarded it as an indispensible part of law." Cicero? made it clear that when equity is ignored, the very principle of legality is threatened." Equity, far from being a breeding ground for rash, ill-considered arbitrary action alien to law, is in fact the very bedrock of the principle of legality, and any contravention of equity is a violation of this prlnctple.? Equity and law as concepts may not be co-extensive, but are without a doubt integrated and inextricably interwoven. Equity is not immanent to law, but inherent to it. So is what is good and equitable-the so-called bonum et 5 Referred to in the sources as aequitas. On the etymological derivation of the word, see Mcgregor, "Aequitas-Billijkheid-Rede" 1938 2 THRHR 1. The concept of equity was used by the Romans in a number of senses and with quite a few nuances, such as fairness, goodness, benigness, reasonableness,

Labour Law's Theory of Justice

The Idea of Labour Law, 2011

Many papers written about labour law these days, including many chapters in this volume, share much in common. This is because many labour lawyers agree with Harry Arthurs that labour lawyers and labour law face an identity crisis. 1 Whether or not we agree with Alan Hyde that 'this time. .. it is really over' 2 many of us do agree that the idea of labour law is under a lot of stress. The crisis confronting labour law has three dimensions: (1) empirical (has the real world changed so much as to leave traditional labour law beside the point, inoperable, fading from view?); (2) conceptual (are our basic concepts of 'employee', 'employer', employment contracts, and so on, still viable and capable of organizing our thinking in a useful way?); and (3) normative (are the moral ideas which motivate our enterprise still salient, robust, and capable of rallying us to the continued defence of our subject?). We do not all agree, it seems, that we need to be in a state of real crisis. But, as I see it, we agree that that is the state we are in. As a result labour lawyers face the questions of whether we should, can, and will rethink our discipline. To these questions we find a range of responses. While there is widespread agreement that there have been large changes in the empirical world of work there is no agreement on what this portends for the discipline of labour law and we can identify a number of positions: (1) there is no resulting normative crisis, and thus no need for a normative re-evaluation. Rather, we simply face the problem of developing new techniques (means) for applying old values (ends) to new empirical realities; (2) the problems are, again, not essentially normative but, rather, ones requiring conceptual innovation to ensure that labour law is not held hostage to old categories, old ways of thinking, and old ways of doing business, which may stand now as barriers to the achieving of labour law's normative goals; (3) the real problem is that we actually do need normative renovation and renewal. But among those taking this position there is no consensus * Faculty of Law, University of Toronto. 1 Arthurs, this volume. 2 Hyde, this volume, 97. OUP CORRECTED PROOF-FINAL, 4/5/2011, SPi about how that might be undertaken or achieved; (4) this sort of normative renewal is not so much required as thrust upon us and comes with a hefty priceat the expense of disciplinary coherence; (5) such 'ideal' or 'overarching' normative accounts of labour law are not possible; (6) we have had in fact many such accounts, but now the normative jig is up. Cutting across this set of positions are other differences in intellectual approach and level of focus in addressing labour law's crisis: international, regional, or domestic law? Developed or developing state focus? Public or private institutional frameworks? Doctrinal/institutional or more abstract analysis? Pragmatic policy reform or purely theoretical conclusions? Comparative approach? Historical? Locating labour law within larger and longer time scale empirical, economic, political, and social narratives? Within differing and larger theoretical paradigms? And so on. Where does that leave us and our discipline? It seems that it leaves us with an admixture of points of view about the nature of our problems, what to do about them, and whether we can, should and will do anything. This is not a terrible state to be in. A state of real disagreement is much better than a state of mere mutual incomprehension. I have been of the view for some time that labour law requires a reorientation at the basic empirical, conceptual, but most importantly, the normative level. Also that such a reorientation is possible. I do not see our problems as 'merely' those of means (technique) or 'simply' conceptual reconfiguration or enlargement. I believe that labour law needs to expand its justificatory horizons and as a result liberate itself from its traditional empirical domain and conceptual categories. The normative question 'What is labour law for?' is basic. It will be answered one way or another, and labour law will have, one way or another, a constituting normative narrative. This narrative will inform and reveal the concepts which are central to labour law and describe the limits of labour law's empirical domain. The question is, simply, which narrative will it be? But, is it possible to do more than simply put one's cards on the table at this stage? Is there something more which we can glean from what we know about our current state of disciplinary affairs, and our individual and varied reactions to it? It seems to me that we can say something more. This something more will not dissolve all of our problems, nor will it result in a consensus about 'what is to be done'. But it may permit us to see something of a structural feature in what appears to be merely an unexplained and unhelpful scattering of viewpoints. B. Labour law has always had, and will always have, a theory of justice The basic idea is this: labour law faces, as always, two sets of questions: (1) What is labour law's domain/scope? With what part of the world as we know it is it concerned? How does it carve itself off from the rest of the legal world? How do we know what issues are labour law issues, what materials to read, what subject matters go on the syllabus? (2) Within that domain, what is labour law to do?

Natural justice in labour relations The legal aspects ....

International Journal of Multidisciplinary Research and Growth Evaluation., 2024

This paper explores the pivotal role of natural justice in labour relations within the context of Botswana with a focus on Human Resources Management, (HRM), the paper examines the significance of upholding principles of fairness, equity, and procedural integrity in employment disputes. Employing a secondary methodology, it synthesizes existing literature to explore the concept of natural justice, its evolution in the context of labour relations, and its potential to reshape HRM practices in Botswana. The analysis underscores the necessity for fair and equitable treatment of employees, the role of procedural fairness in conflict resolution, and the alignment of HRM policies with principles of natural justice. The paper concludes by offering recommendations for HRM practices that promote a culture of fairness and transparency in the workplace, thereby fostering harmonious labour relations and sustainable organizational success.

Square peg versus a round hole? The Necessity of a Bill of Rights for Workers

European Labour Law Journal, 2020

The exercise of human rights is put at risk by the creation, conduct, and termination of employment relationships. For this reason, we often find that fundamental rights arguments are invoked in disputes between employers and workers and the mechanisms of labour and employment law are pressed to vindicate those rights through a process of ‘constitutionalisation’. Notably, the European Convention on Human Rights, through the doctrine of positive obligations, places important demands upon national legal systems, their legislators and their judges, to protect the rights of individuals against other private parties. Taking the law of dismissal in England & Wales as an illustrative example, this article argues that the current approach to safeguarding workers’ rights and complying with the Convention’s positive obligations is inadequate. Making adjustments to the existing structure of employment rights will always be insufficiently radical as those structures are ill-suited to performing...