Week beginning Sunday, 18 May 1997
THISweek John Botha, Human Resources Manager of Quest Personnel, examines the expectations of women in the workplace.
Rael Solomon and The Labour Consultancy, deal with problems relating to the transfer of contracts of employment. Rael Solomon comments on procedures and the LRA. Don't forget to read our letters page which contains practical advice in response to browsers' questions.
The Constitutional Bill of Rights, the Labour Relations Act (1995), the Proposed Basic Conditions of Employment Bill and pending legislation all have a fundamental common purpose:
TO ENSURE THAT THE RIGHTS AND EMPLOYMENT CONDITIONS OF HISTORICALLY DISADVANTAGED GROUPS ARE GIVEN PREFERENTIAL TREATMENT.
For the purposes of this discussion we focus on the woman in the workplace from two dimensions:
These proposals are aimed at introducing some flexibility in the area of compulsory maternity leave. But at the same time they also clearly create job security for pregnant employees. Read together with the relevant provisions of the LRA, ESA will ensure that employers may not dismiss women employees simply for the reasons of pregnancy and child birth.
1. WOMEN, AFFIRMATION AND LABOUR LEGISLATION
1.1 AFFIRMATIVE ACTION
1.2 EQUALITY OF OPPORTUNITY IN EMPLOYMENT
How employees are afected when their employer's undertaking/businnes has been sold to a third party as a going concern.
For employees the sale of the company which is employing them can be traumatic. Clause 197 or the Labour Relations Act 66 of 1995 addresses the situation when there has been transfer of ownership of an ongoing undertaking.
Rael Solomon examines the issue of procedural compliance.
COSATU's planned strike for 12 May 1997 was ruled unlawful by the Labour Appeals Court, presided over by Justice John Myburgh. Despite a dissenting opinion from Judge Chris Nicholson, the Court found that Cosatu had failed to comply with procedures to be followed in terms of Section 77(1) of the LRA.
If the strike had been executed, employees would have been 'unprotected' in terms of the Act and subject to disciplinary action by employers.
The LRA goes further than laws and provisions protecting the rights and obligations of employees and employers. It includes procedures that have to be complied with.
Analysis of the arbitrations and conciliations conducted by the CCMA since its inception in November 1996, reveals that employers are being penalised extensively for ignoring statutory procedures. Irrespective of whether you are Cosatu, Business South Africa or the employer of a domestic worker, bypassing the set procedures will produce the same result.
Whilst some criticise the legalistic and technical aspects that have become so important, the Act and its control mechanisms are exceptionally efficient at levelling the playing fields.
The procedures to be followed when taking action are clearly outlined in the LRA and give both employers and employees an opportunity to reflect on the action they are about to set in motion.
The CCMA has been severely criticised in the print media, apparently in sympathy with vested interests wanting to short-circuit the checks and balances for their own convenience. Where this happens, it undermines a negotiated framework which balances a number of interests in society. Any attempts to operate outside of the Act merely contributes to the criminal anarchy prevailing in South Africa.