The issue of human and labour rights violations in global supply chains has gained significant attention in contemporary society, making it essential for international organisations, governments and businesses to address this critical concern. Multi-national enterprises (MNEs) offer well-documented benefits to their host nations, such as improving residents' standards of living by fostering economic growth and facilitating the transfer of skills and technology to their host nations. These advantages create competitive pressure among nations striving to attract MNEs. Consequently, MNEs have the option to relocate their operations to countries with lower human and labour rights standards to maximise profits, potentially incentivising governments to lower their human and labour rights standards as well. Compounding this issue is the fact that MNEs are not governments and, therefore, cannot be members of the ILO. This exclusion means there is currently no legally recognised mechanism to hold MNEs accountable for human and labour rights violations, despite substantial evidence of such abuses in global supply chains. The primary shortcoming of the existing legal framework is the absence of a legally recognised dispute resolution forum through which workers who experience violations can seek remedies against MNEs. This gap has resulted in a reliance on self-regulation by MNEs through codes of conduct and other mechanisms implemented by non-governmental organisations. However, the self-regulation system faces criticism because it relies on voluntary compliance, meaning its decisions are not legally binding. This contribution examines the challenges faced by employees whose human and labour rights have been violated by MNEs. It also recommends regulatory reforms that would empower the ILO to set labour standards that MNEs must adhere to and to provide effective remedies for workers when violations

This article investigates how the notion of informal social security and communal lifestyle has played a significant role in sustaining the livelihood of indigenous people in South Africa. Reflecting on various indigenous informal social security safety methods, the article demonstrates how indigenous communities have used these safety nets and indigenous knowledge systems in their quest to survive against all odds. Informal social security refers to self-organised family, community or informal sector coping mechanisms. The article argues that these tailor-made traditional informal social security practices play an invaluable parallel role in the formal social security systems in South Africa. It is submitted that in many instances, these traditional safety nets serve an important complimentary role to existing formal social security measures for poor communities. The article further contends that this is crucial for poor indigenous peoples' well-being. Through informal social security initiatives, indigent households in South Africa have lessened the scourge of poverty, unemployment, inequalities, floods, and recently also the negative effects of HIV/AIDS and the COVID-19 pandemic. The article concludes by examining the challenges facing indigenous informal social security systems and makes some recommendations regarding these challenges.

Monareng v Dr JS Moroka Municipality 2022 43 ILJ 1855 (LC) Affirmation that resignation by an employee constitutes a point of no return: or does it?

This article explores the status of the Labour Appeal Court under South Africa's constitutional democracy. The stages of development of this country's labour laws have coincided with the establishment of new sets of labour dispute resolution fora: firstly, the Industrial Court; secondly, the labour courts under our present constitutional democracy; and thirdly, a yet to be implemented new dispute resolution paradigm under the proposed Superior Courts Bill. The focus of this contribution is on the influence of the provisions of the Constitution on these developments, and the gradual erosion of the exclusive appellate powers of the Labour Appeal Court by the Supreme Court of Appeal, and the Constitutional Court, in the assertion of their power to serve as highest courts in all labour matters.

In Part 1 of this article the reasons for the establishment of specialist labour courts were explored, and the stages of development of the former industrial, and present labour courts were considered. However, as already pointed out, the drafters of the Constitution and the Labour Relations Act of 1995 (the “LRA”) had different goals in mind when creating the overall scheme of the courts respectively responsible for the adjudication of civil and constitutional matters and those in relation to labour matters.Ultimately, this prepared fertile ground for the superior courts to clash over the ultimate power to consider appeals in labour matters. Part 2 of this article explores the development of jurisprudence after the inception of the Constitution, which illustrates the gradual erosion of the Labour Appeal Court’s status in labour-related matters to the point where there is no logical reason for its continued existence.

The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African workplaces. It had a significant impact on public and private life in South Africa and harsh rules were imposed that severely restricted social gatherings and other economic activities. Employers and employees grappled with issues like compulsory vaccinations, social distancing and the implementation of workplace policies at the workplace. The repercussions of the COVID-19 limitations are still being experienced after the lifting of the state of disaster. Among the issues are a troublesome economic downturn, significant job losses and a struggle to convince workers to return to workplaces. The Constitution, 1996 establishes a human rights-centred backdrop against which the picture of the pandemic is unfolding. Added to this, South Africa has a range of legislative instruments that regulate aspects like unfair dismissal and collective bargaining at workplaces. This placed South Africa in a position to regulate the COVID-19 pandemic in society at large, and workplaces in particular. A collection of the tribunal and court decisions regarding COVID-19 at the workplace have wound their way through the dispute resolution institutions. This contribution navigates relevant aspects of the Constitution as well as disaster management and labour legislation before reflecting on a selection of jurisprudence. The authors argue that there are important lessons to be gained from these early cases. Nonetheless, there are also unanswered questions of a constitutional nature that still need to be finalised. They also voice suggestions in the conclusion that may be of assistance to employers, employees, academics, and policymakers alike - that would also apply should future pandemics pester the South African society.

This article explores the overlap between the unlawful termination of a contract of employment and the unfair dismissal of an employee. The Supreme Court of Appeal has in a sequence of cases developed the common-law contract of employment to include the implied right to a pre-dismissal hearing. Owing to the fact that labour legislation already regulates unfair dismissal law, this in effect creates a dual system of dispute resolution in relation to the termination of contracts of employment. The focus of this contribution is on the factors that allure dismissed employees to the civil courts and it highlights the problems that are associated with the overlap of the High Court’s and the Labour Court’s jurisdictions. Future developments are traversed and the Constitutional Court is called upon to bring an end to the development of parallel dispute resolution systems in respect of dismissal disputes.

The collective bargaining framework in South Africa as set out in the Labour Relations Act 66 of 1995 is based on the principle of 'majoritarianism'. Notwithstanding the premise of our legal system, minority trade unions have an important role to play in advancing workers' rights and have turned to the courts for an endorsement of these rights. In this respect, there are three significant Constitutional Court decisions that form the foundation of this article. The key focus is on exploring the extent to which these judgments advance such rights and, particularly, whether and to what extent the Constitutional Court has developed coherent and consistent principles relative to the rights of minority trade unions.

South Africa’s existing social security and labour law framework is inadequate to protect employees in the formal sector during the Covid-19 lockdown. However, commendable temporary income replacement measures have been introduced to counter this situation. Nevertheless, South Africa’s biggest shortcoming lies in the lack of protection for its considerable informal sector. Government did not respond adequately. When informal sector workers don’t work, they remain hungry.

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.

In Uber South Africa Technology Services (Pty) Ltd v NUPSAW and SATAWU obo Tsepo Morekure unreported case WECT12537-16 7 July 2017 the Commission for Conciliation, Mediation and Arbitration held that Uber drivers are employees. However, in a surprising development and contrary to the situation in England and the USA, the Labour Court in Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers 2018 ILJ 903 (LC) (“Uber SA (LC)”) held that Uber drivers are not employees. This contribution explains how Uber functions and questions the approach adopted by the Labour Court. Arguments are advanced in support of the view that Uber SA (LC) should have reflected on international developments and should have considered the definition of “employer” in terms of section 200B of the Labour Relations Act 66 of 1995. In the final instance, the contribution suggests that a broader constitutional approach should have been adopted rather than a narrow contract-based outlook.

This note explores the powers of the Labour Court as envisaged in the Labour Relations Act 66 of 1995 (LRA), where a protected strike disintegrates into violent riotous conduct. The legal status of protected strikes raises important questions of law, namely: whether the Labour Court has the authority to alter the legal status of a strike; the autonomy of collective bargaining; and the legal test which the Labour Court should apply when intervening. The court in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd 2016 37 ILJ 476 (LC) dealt with this precise problem. There can be no doubt that South Africa is plagued by widespread strike violence which often occur during protected strikes. However, this contribution poses the question whether the Labour Court has not overstepped its mandated jurisdiction and it questions whether such alterations of the status of strikes would have a positive effect on the institution of collective bargaining.

This article explores the concept of the automatic unfair dismissal that is regulated in s 187(1)(c) of the Labour Relations Act, where the reason for the dismissal is to compel the employee to accept a demand in respect of any matter of mutual interest. This provision raised important questions of law, as it brought to the fore the conflict that existed between this provision and sections 188(1)(a)(ii) and 189 of the LRA, which permits dismissals for operational requirements. This dichotomy was dealt with by the court in Fry's Metals , but the decision was controversial and faced criticism. The decision of the court was consequently rendered incorrect, resulting in the amendment to s 187(1)(c), which now reads that a dismissal is automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. However, it is doubtful whether the amended provision provides a solution to the contradiction that exists. Resultantly, this article seeks to critique the amendment and to make recommendations regarding the regulation of this part of labour law.

At the beginning of 2015 the Labour Relations Act (LRA) was amended to provide significantly improved protection to workers engaged in ‘non-standard work’. This term covers workers engaged in agency work, fixed-term contracts and part-time employment. The focus of this contribution is on ‘employment agencies’ which constitute a significant proportion of the South African labour market. There are differing views on the exact number of agency workers and the effects of the recent legislative amendments in South Africa. So for example, one of the country’s largest providers of agency workers, Adcorp, states that:‘Labour broking is the fastest-growing sector of the South African labour market. According to the Adcorp Employment Index for May labour brokers constitute a R44 billion industry employing around 19 500 internal staff and just over one million agency workers or temps in South Africa. Agency work now constitutes 7.5% of total employment in South Africa, and it is likely to grow further.

The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. It traverses the international, continental and regional instruments providing protection to irregular migrants, and considers the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa. The article concludes by recommending that the broader notion of "social protection", rather than the narrower concept of "social security", should be emphasized. Job creation programmes are essential. It suggests that the advantages of the free movement of people in the region should be explored and encouraged. The article also supports the notion that a regional policy that seeks to balance the flow of migrants in the Southern African Development Community should be adopted.