Critical labour law imperatives that impact on the issues of equity, restructuring, incorporation and mergers that are currently taking place in the higher education sector.
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Date
2001
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Abstract
This dissertation focuses on the forces that are bringing about changes in the
employment relationships in the higher education sector. Labour law regulates
the employment relationships. This dissertation also seeks to determine the
extent to which the forces that are external to the parties to the employment
relationship determine the legal environment within which the parties can
exercise their rights and obligations.
The important factor that is taken into account in this regard is the constitution
of the country which is the supreme law of the land. The fundamental rights
that are enshrined in the constitution must be recognised and respected by
labour law and consequently by the parties to the employment relationships.
The constitution provides that when interpreting any legislation, every court,
tribunal or forum must promote the spirit, purpose and objects of the Bill of
Rights.
This dissertation is confined to the public higher education system. The
constitution also stipulates that the power to pass legislation that regulates
tertiary education is given to the national government exclusively. It is for that
reason that the Higher Education Act has been amended to give the Minister
the power to bring about the desired changes.
The National Plan for Higher Education that was introduced by the Minister of
Education in March 2001 is the basis of the discussion of the issues of equity,
restructuring, incorporations and mergers that are currently taking place in the
higher education sector in this dissertation. This is a force that is external to the
parties and is brought about by policy considerations.
The analysis of the issue of equity therefore takes into account the right to
equality as buttressed by affirmative provisions of the constitution of the country
and the legislation that has been enacted to outlaw discrimination at the
workplace and to promote equality of opportunity is considered. The enforceability of the equity provisions of the National Plan for Higher Education
are analysed in this context.
Labour law also determines the respective rights and obligations of the parties
when it comes to restructuring that is taking place in the higher education
sector. Labour law acknowledges that the operational requirements of
employers may compel them to restructure their operations. This may lead to a
loss of jobs. The principles of labour law and labour legislation that regulate
these phenomena are analysed.
The National Plan for Higher Education seeks to bring about a change in the
landscape of the higher education system in this country. It proposes mergers
and incorporations of certain institutions of higher education into. other such
institutions. Labour law principles and legislation regulate how these
phenomena can be effected. Common law recognises an employment
relationship between a particular employer and a particular employee and does
not provide for the notion of transferring the employment relationship to a new
employer. This dissertation analyses the applicable provisions of labour law
when this transfer of contract happens in the higher education sector.
Our labour law is itself in a state of flux, not only because the relevant labour
legislation is new, but also because that "new" labour legislation is in the
process of being amended. This aspect has been compounded by the fact that
the Labour Appeal Court has given different interpretations to certain provisions
of the legislation, leading to further amendment of the legislation. The relevant
amendments relate to dismissals based on operational requirements of the
employer and the transfer of contracts of employment from the "old" employer to
the "new" employer.
This dissertation aims to highlight the measures that the role players must take
to ensure that the implementation of the directives contained in the National
Plan for Higher Education, among others, does not fall foul of our labour law.
Description
Thesis (LL.M.)-University of Natal, Durban, 2001.
Keywords
Labour laws and legislation--South Africa., South Africa (Republic). Employment equity act, 1998., South Africa (Republic). Labour relations act, 1995., Universities and colleges--South Africa--Employees., Theses--Law.