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DA 1/2015 in the Matter Between: HOSPERSA OBO TS TSHAMBI
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN Reportable Case no: DA 1/2015 In the matter between: HOSPERSA OBO TS TSHAMBI Appellant and DEPARTMENT OF HEALTH, KWAZULU –NATAL Respondent Heard: 25 February 2016 Delivered: 24 March 2016 Summary: Section 24 of the LRA provides for arbitration of disputes about the ‘interpretation or application’ of collective agreements– interpretation of – section provides for a dispute resolution device ancillary to collective bargaining, not to be used to remedy an unfair labour practice under pretext that a term of a collective agreement has been breached. The phrase ‘interpretation or application’ is not to be read disjunctively – the ‘enforcement’ of the terms of a collective agreement is a process which follows on a positive finding about ‘application’ not a facet of ‘application’. A dispute about an employer’s failure to pay an employee during period of suspension pending a disciplinary enquiry is, properly characterised, an unfair labour practice about unfair suspension as contemplated in section 186(2) (b) of the LRA. 2 An arbitrator must characterise a dispute objectively, not slavishly defer to the parties’ subjective characterisation- failure to do so is an irregularity. The determination of what constitutes a reasonable time within which to refer a dispute when no fixed period is prescribed for that category of dispute, such as a section 24 dispute, is a fact-specific enquiry having regard to the dynamics of labour relations considerations – where for example the dispute may be understood as a money claim, the prescription laws are irrelevant. Labour court reviewing and setting aside award in which arbitrator deferred to an incorrect characterisation of a dispute and ordering the matter to be heard afresh upheld and appeal against order dismissed. -
April 2021 DGRU Report V1
SUBMISSION AND RESEARCH REPORT ON THE JUDICIAL RECORDS OF NOMINEES FOR THE JSC SITTING IN APRIL 2021 VOLUME 1: CONSTITUTIONAL COURT AND SUPREME COURT OF APPEAL 1 INDEX TO VOLUME 1 OF THE REPORT PAGE NUMBER Submission and Methodology 3 Research report COURT CANDIDATE Advocate Alan Dodson SC 12 Judge Fayeeza Kathree- 21 Setiloane Judge Jody Kollapen 31 Deputy Judge President 41 Aubrey Ledwaba Constitutional Court Justice Rammaka Mathopo 50 Judge Shenaaz Meer 58 Justice Mahube Molemela 66 Judge Dhaya Pillay 74 Judge David Unterhalter 83 Judge Bashier Vally 92 Judge Zeenat Carelse 100 Judge Jannie Eksteen 108 Judge Trevor Gorven 116 Judge Wendy Hughes 125 Judge Pete Koen 133 Supreme Court of Appeal Deputy Judge President [See page 41 Aubrey Ledwaba above] Judge Nolwazi Mabindla- 141 Boqwana Judge Elias Matojane 149 Judge Selewe Mothle 156 Judge Owen Rogers 164 Judge Sharise Weiner 173 2 INTRODUCTION 1. The Democratic Governance and Rights Unit (“DGRU”) is an applied research unit based in the Department of Public Law at the University of Cape Town. DGRU’s vision is of a socially just Africa, where equality and constitutional democracy are upheld by progressive and accountable legal systems, enforced by independent and transformative judiciaries, anchored by a strong rule of law. The mission of the DGRU is to advance social justice and constitutional democracy in Africa by conducting applied and comparative research; supporting the development of an independent, accountable and progressive judiciary; promoting gender equality and diversity in the judiciary and in the legal profession; providing free access to law; and enabling scholarship, advocacy and online access to legal information. -
Confict Resolution
AFRICAN JOURNAL ON CONFLICT RESOLUTION Volume 16, Number 2, 2016 Efficacy of top-down approaches to post-conflict social coexistence and community building: Experiences from Zimbabwe ‘There’s no thing as a whole story’: Storytelling and the healing of sexual violence survivors among women and girls in Acholiland, northern Uganda Volume 16, Number 2, 2016 Number 2, 2016 16, Volume Competing orders and conflicts at the margins of the State: Inter-group conflicts along the Ethiopia-Kenya border Indigenous institutions as an alternative conflict resolution mechanism in eastern Ethiopia: The case of the Ittu Oromo and Issa Somali clans African Journal on Conflict Resolution Volume 16, Number 2, 2016 The African Journal on Conflict Resolution is a peer-reviewed journal published by the African Centre for the Constructive Resolution of Disputes (ACCORD) for the multidisciplinary subject field of conflict resolution. There are two regular issues per year, and occasionally also a special issue on a particular theme. It appears on the list of journals accredited by the South African Department of Higher Education and Training. ACCORD is a non-governmental, non-aligned conflict resolution organisation based in Durban, South Africa. ACCORD is constituted as an education trust. The journal seeks to publish articles and book reviews on subjects relating to conflict, its management and resolution, as well as peacemaking, peacekeeping and peacebuilding in Africa. It aims to be a conduit between theory and practice. Views expressed in this journal are not necessarily those of ACCORD. While every attempt is made to ensure that the information published here is accurate, no responsibility is accepted for any loss or damage that may arise out of the reliance of any person upon any of the information this journal contains. -
Moving Litigation from Dispute Resolution to Conflict Management, Problem Solving and Building Organisation CHAPTER 1
Moving Litigation from Dispute Resolution to Conflict Management, Problem Solving and Building Organisation CHAPTER 1: OVERVIEW OF THESIS ......................................................................... 4 1.1 Introduction ...................................................................................................................... 4 1.2 Legal process literature overview .................................................................................... 8 1.3 Process reform for substantive transformation ............................................................. 14 1.4 Choice ........................................................................................................................... 20 1.5 Overview ....................................................................................................................... 20 CHAPTER 2: BARNARD: WHO’S CONSTITUTION IS IT ANYWAY? ........................... 25 2.1 Introduction ............................................................................................................. 25 2.2 Paradox of predictability ......................................................................................... 27 2.3 Choices inducing unpredictability ........................................................................... 30 2.4 Form and substance .............................................................................................. 32 2.5 Why Barnard? ....................................................................................................... -
Enterprise Bargaining Agreements and the Requirement to ‘Consult’
About the Institute of Public Affairs The Institute of PuBlic Affairs is an independent, non-profit puBlic policy think tank, dedicated to preserving and strengthening the foundations of economic and political freedom. Since 1943, the IPA has been at the forefront of the political and policy debate, defining the contemporary political landscape. The IPA is funded By individual memBerships and subscriptions, as well as philanthropic and corporate donors. The IPA supports the free market of ideas, the free flow of capital, a limited and efficient government, evidence-Based puBlic policy, the rule of law, and representative democracy. Throughout human history, these ideas have proven themselves to be the most dynamic, liBerating and exciting. Our researchers apply these ideas to the puBlic policy questions which matter today. About the authors Gideon Rozner is an Adjunct Fellow at the Institute of PuBlic Affairs. He was admitted to the Supreme Court of Victoria in 2011 and spent several years practicing as a lawyer at one of Australia’s largest commercial law firms, as well as acting as general counsel to an ASX-200 company. Gideon has also worked as a policy adviser to ministers in the AbBott and TurnBull Governments. Gideon holds a Bachelor of Laws (Honours) and a Bachelor of Arts from the University of MelBourne. Aaron Lane is a Legal Fellow at the Institute of PuBlic Affairs. He specialises in employment, industrial relations, regulation and workplace law. He is a lawyer, admitted to the Supreme Court of Victoria in 2012. He has appeared before the Fair Work Commission, the Productivity Commission, and the Senate Economics Committee, among other courts and triBunals. -
Practice and Procedure Manual
PRACTICE AND PROCEDURE MANUAL 5th Edition November 2010 101 Table of Contents Chapter 1 Introduction 101 Chapter 2 Functions, Jurisdiction and Powers Generally 201 Chapter 3 Notice and service 301 Chapter 4 Representation 401 Chapter 5 Referrals and initial administration 501 Chapter 6 Pre-conciliation 601 Chapter 7 Con-Arb 701 Chapter 8 Conciliation 801 Chapter 9 Certificates 901 Chapter 10 Settlement agreements 1001 Chapter 11 Request for arbitration, pre-arbitration procedures and subpoenas 1101 Chapter 12 Arbitrations 1201 Chapter 13 Admissibility and evaluation of evidence 1301 Chapter 14 Awards 1401 Chapter 15 Applications 1501 Chapter 16 Condonation applications 1601 Chapter 17 Rescissions and variations 1701 Chapter 18 Costs and taxation 1801 Chapter 19 Enforcement of settlement agreements and arbitration awards 1901 Chapter 20 Pre-dismissal arbitration 2001 Chapter 21 Review of arbitration awards 2101 Chapter 22 Contempt of the Commission 2201 Chapter 23 Facilitation of retrenchments in terms of section 189A of the LRA 2301 Chapter 24 Intervention in disputes in terms of section 150 of the LRA 2401 102 Chapter 25 Record of proceedings 2501 Chapter 26 Demarcations 2601 Chapter 27 Picketing 2701 Chapter 28 Diplomatic consulates and missions and international organisations 2801 Chapter 29 Index 2901 101 Chapter 1: Introduction 1.1 This manual records the practices and procedures of the CCMA. It is a work in progress and the intention is to continuously improve and update it, particularly as and when practices and procedures change. The manual is written in a question and answer format. It was not intended to cover every possible question. The questions covered are those which most commonly arise in the every day work environment. -
Revista Digital De Direito Administrativo
REVISTA DIGITAL DE DIREITO ADMINISTRATIVO FACULDADE DE DIREITO DE RIBEIRÃO PRETO – FDRP UNIVERSIDADE DE SÃO PAULO – USP Seção: Artigos Científicos O caso Simelane: o controle judicial dos atos de nomeação expedidos pelo Chefe do Poder Executivo, à luz do critério das considerações relevantes e do princípio da racionalidade The Simelane Case: The judicial review of the acts of appointment issued by the head of the executive branch, in light of relevant considerations and the principle of rationality Hidemberg Alves da Frota Resumo: Este artigo pretende difundir subsídios teóricos hauridos do julgamento do processo judicial Democratic Alliance v. President of South Africa and Others (caso Simelane). Analisam-se as peculiaridades desse caso concreto, os principais argumentos esposados pela Suprema Corte de Apelação e pela Corte Constitucional da África do Sul, o posicionamento da doutrina sul-africana, o contexto subjacente do Direito Administrativo e do Direito Constitucional sul-africanos contem- porâneos e o seu diálogo com o Direito Administrativo Comparado e com a história do Direito sul- africano. Ao fim, inspira-se em tal julgado para propor a adoção do princípio da racionalidade e do critério das considerações relevantes como balizas para o controle, pelo Poder Judiciário brasileiro, de nomeações que consubstanciam atos de natureza político-governamental ou análoga. Palavras-chave: caso Simelane; racionalidade; considerações relevantes; atos de nomeação; atos político-governamentais; controle judicial do Poder Executivo. Abstract: This article aims to inform the portuguese-speaking legal community about the theoretical underpinnings that were drawn from the trial of Democratic Alliance v President of South Africa and Others (the Simelane case). The peculiarities of this case are examined, and the main arguments upheld by the Supreme Court of Appeal and the Constitutional Court of South Africa are analyzed. -
Industrial Relations Act 2016
Queensland Industrial Relations Act 2016 Current as at 31 August 2017 Queensland Industrial Relations Act 2016 Contents Page Chapter 1 Preliminary Part 1 Introduction 1 Short title . 47 2 Commencement . 47 3 Main purpose of Act . 47 4 How main purpose is primarily achieved . 48 5 Act binds all persons . 50 Part 2 Interpretation 6 Definitions . 50 7 Who is an employer . 50 8 Who is an employee . 51 9 What is an industrial matter . 51 Part 3 General overview of scope of Act 10 Purpose of part . 52 11 Definition for part . 52 12 Who this Act applies to generally . 52 13 Who this Act applies to—particular provisions . 54 Chapter 2 Modern employment conditions Part 1 Preliminary 14 Definitions for chapter . 54 15 Meaning of long term casual employee . 55 Part 2 Interaction of elements of industrial relations system 16 What part is about . 55 17 Relationship between Queensland Employment Standards and other laws . 56 18 Relationship between Queensland Employment Standards and industrial instruments . 56 Industrial Relations Act 2016 Contents 19 Relationship of modern award with certified agreement . 56 20 Relationship of modern award with contract of service . 57 Part 3 Queensland Employment Standards Division 1 Preliminary 21 Meaning of Queensland Employment Standards . 57 Division 2 Minimum wage 22 Entitlement to minimum wage . 58 Division 3 Maximum weekly hours 23 Maximum weekly hours . 58 24 Applicable industrial instruments may provide for averaging of hours of work . 59 25 Averaging of hours of work for employees not covered by applicable industrial instruments . 60 26 Deciding whether additional hours are reasonable . -
April 2020 DGRU Report
SUBMISSION AND RESEARCH REPORT ON THE JUDICIAL RECORDS OF NOMINEES FOR APPOINTMENT TO THE CONSTITUTIONAL COURT, THE HIGH COURT AND THE LAND CLAIMS COURT APRIL 2020 1 INDEX TO THE REPORT PAGE NUMBER Submission and Methodology 4 Research report COURT CANDIDATE Constitutional Court Justice Nambitha Dambuza - 11 Mayosi Advocate Alan Dodson SC 21 Judge Jody Kollapen 31 Judge Majeke Mabesele 41 Justice Rammaka Mathopo 49 Justice Mahube Molemela 58 Judge Dhaya Pillay 67 Judge Bashier Vally 77 Gauteng High Court (For secondment to the Land Mr Pume Canca 85 Claims Court) Judge Zeenat Carelse 92 Mr Thomas Ncube 97 KwaZulu-Natal High Court (For secondment to the Land Claims Court) Judge Cassim Sardiwalla 102 Mr Bruce Bedderson 109 Mr Poobalan Govindasamy 113 KwaZulu – Natal High Court Ms Sharon Marks 118 Ms Lokwalo Mogwera 123 Advocate Ian Topping SC 127 Judge Shane Kgoele 133 Mpumalanga High Court (Deputy Judge President) Judge Sheila Mphahlele 138 Advocate Hein Brauckmann 145 Mpumalanga High Court Mr Bruce Langa 151 2 Advocate Thandoluhle 154 Mankge Advocate Ntombizanele 159 Ndlokovane Mr Takalani Ratshibvumo 164 Advocate Henk Roelofse 170 Ms Lindiwe Vukeya 174 North West High Court Advocate Nic Laubscher 178 3 INTRODUCTION 1. The Democratic Governance and Rights Unit (“DGRU”) is an applied research unit based in the Department of Public Law at the University of Cape Town. DGRU’s vision is of a socially just Africa, where equality and constitutional democracy are upheld by progressive and accountable legal systems, enforced by independent and transformative judiciaries, anchored by a strong rule of law. The mission of the DGRU is to advance social justice and constitutional democracy in Africa by conducting applied and comparative research; supporting the development of an independent, accountable and progressive judiciary; promoting gender equality and diversity in the judiciary and in the legal profession; providing free access to law; and enabling scholarship, advocacy and online access to legal information. -
Interpretation of Union Membership Eligibility Rules in the Modern Award Era
SHIFTING THE GOALPOSTS: INTERPRETATION OF UNION MEMBERSHIP ELIGIBILITY RULES IN THE MODERN AWARD ERA Australian Labour Lawyers Association 8th National Conference, 4-5 November 2016, Melbourne Daniel White1 (Special Counsel, Perth), Mills Oakley Lawyers, [email protected] Abstract The interpretation of union membership eligibility rules (union rules) has attracted considerable attention from Courts and Tribunals. The amalgamation of unions over the years has by no means assisted, resulting in ambiguous and confusing union rules which are very difficult to interpret. Union rules also overlap considerably, resulting in claims of membership coverage by multiple unions paving the way for costly demarcation disputes. As of 1 July 2009 the new Fair Work Act 2009 (Cth) placed unions as bargaining representatives at centre stage of the collective enterprise-based bargaining regime. The result has drawn particular focus back to union rules as the source of eligibility to be a bargaining representative and the rights and obligations that flow from that. Awards have historically played an important role in carving out union “turf” under previous legislative schemes and thus assisted in defining the scope of union rules. However as of 1 January 2010, the introduction of Modern Awards, which do not name unions as being “a party”, has opened up the way for some unions to contest coverage and even venture into “new turf”. This paper will reflect on the key decisions concerning the interpretation of union rules, examine the patterns/trends taken by the Courts and Tribunals concerning union rules in the Modern Award era (particularly around bargaining) and promote some ideas for further debate around union rules. -
Employment & Labour Law 2018
ICLG The International Comparative Legal Guide to: Employment & Labour Law 2018 8th Edition A practical cross-border insight into employment and labour law Published by Global Legal Group with contributions from: A. Lopes Muniz Advogados Associados Koushos Korfiotis Papacharalambous LLC BAS – Sociedade de Advogados, SP, RL Lakshmikumaran & Sridharan Carnelutti Law Firm Latournerie Wolfrom Avocats CDZ Legal Advisors Law firm Šafar & Partners, Ltd Debarliev, Dameski and Kelesoska, Attorneys at Law Mariscal & Abogados, Asociados Deloitte Kosova Sh.p.k. McCann FitzGerald Deloitte Legal Sh.p.k. Meridian Law Chambers DQ Advocates Limited Mori Hamada & Matsumoto EmpLaw Advokater AB Pachiu & Associates Erdinast, Ben Nathan, Toledano & Co. Advocates People + Culture Strategies FCLAW – LAWYERS & PRIVATE NOTARIES Rátkai Law Firm GANADO Advocates SEUM Law Global Law Office Shahid Law Firm Gün + Partners Skrine Gürlich & Co. Stikeman Elliott LLP Hamdan AlShamsi Lawyers and Legal Consultants Sulaiman & Herling Attorneys at Law Hogan Lovells Udo Udoma & Belo-Osagie Homburger Wildgen S.A. Hughes Hubbard & Reed LLP Winkler Partners The International Comparative Legal Guide to: Employment & Labour Law 2018 General Chapter: 1 Where Next for the Gig Economy? – Stefan Martin & Jo Broadbent, Hogan Lovells 1 Country Question and Answer Chapters: 2 Albania Deloitte Legal Sh.p.k.: Sabina Lalaj & Ened Topi 5 Contributing Editors Stefan Martin & 3 Australia People + Culture Strategies: Joydeep Hor & Therese MacDermott 15 Jo Broadbent, Hogan Lovells 4 Bahamas Meridian Law Chambers: Dywan A – G. R. Rodgers 22 Sales Director Florjan Osmani 5 Brazil A. Lopes Muniz Advogados Associados: Antônio Lopes Muniz & Zilma Aparecida S. Ribeiro 28 Account Director Oliver Smith 6 Canada Stikeman Elliott LLP: Patrick L. -
The Labour Court of South Africa, Held at Johannesburg
Of interest to other Judges THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG Case no: J1746/18 In the matter between: JOHANNESBURG METROPOLITAN BUS Applicant SERVICES SOC LTD and DEMOCRATIC MUNCIPAL AND ALLIED First Respondent WORKERS UNION SOUTH AFRICAN MUNICIPAL WORKERS Second Respondent UNION INDEPENDENT MUNICIPAL AND ALLIED Third Respondent TRADE UNION PERSONS LISTED IN ANNEXURE “A” TO Fourth and further THE NOTICE OF MOTION Respondents Heard: 24 May 2018 Delivered: 04 June 2018 Summary: (s 68(3) of the LRA – curtailment of proceedings by agreement – salutary cost order nonetheless appropriate – final strike interdict – respondents not bound by collective agreements on grievances or collective bargaining – Page 2 council agreement not yet applicable to applicant – strike demands not rendering strike unprotected – application dismissed ) JUDGMENT LAGRANGE J Background [1] This is an urgent application for a final interdict to prevent a strike which was due to commence on 28 May 2017. The applicant, Metrobus, applies for two alternative forms of relief. It is opposed by the first respondent, the union DEMAWUSA. [2] Firstly, Metrobus seeks to interdict a strike on the basis that the dispute was prematurely referred to conciliation in breach of a grievance procedure forming part of the main agreement of the SALGBC, which it claims is applicable to the members of DEMAWUSA who intend to strike. In the alternative, it seeks a final order preventing them from embarking on the strike until a dispute regarding the application of the Main Agreement and the Salary and Wage Agreement of the bargaining council has been determined. Ordinarily, such an order is sought on an interim basis pending the outcome of the dispute referred to the bargaining council, but Metrobus has chosen to frame it as final relief.