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The Edcon Judgment – Is s189A any clearer?

One of the provisions in the LRA that has proven problematic in practice has been section 189A which deals with large-scale retrenchments. The section contains no less than 20 subsections which, in some instances, are far from clear. The difficulty in interpreting this provision was exacerbated by the judgment of the Labour Appeal Court (“LAC”) in De Beers Group Services (Pty) Ltd v NUM & Others (2012) 33 ILJ 1846 (LAC).

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The arbitrator’s decision is not always final

Section143 (1) of the Labour Relations Act (LRA) provides that: “An arbitration award is final and binding”. This misleads employers and employees into believing that they cannot apply for an arbitrator’s decision to be overturned. In fact, either party can take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing ‘misconduct’. This is different to an appeal because an appeal is made, not against the arbitrator’s conduct, but rather against his/her decision.

Section143 (1) of the Labour Relations Act (LRA) provides that: "An arbitration award is final and binding". This misleads employers and employees into believing that they cannot apply for an arbitrator's decision to be overturned. In fact, either party can take the arbitrator's conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing 'misconduct'. This is different to an appeal because an appeal is made, not against the arbitrator's conduct, but rather against his/her decision.

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Your compliance with the EEA will now be assessed

Section 42 of the amended Employment Equity Act, No 55 of 1998, (EEA), as amended by the Employment Equity Amendment Act, No 47 of 2013, deals with how a designated employer will be assessed in terms of their compliance with employment equity in accordance with the EEA. The director-general (DG) of the department of labour (DoL) is tasked with this duty.

Section 42 of the amended Employment Equity Act, No 55 of 1998, (EEA), as amended by the Employment Equity Amendment Act, No 47 of 2013, deals with how a designated employer will be assessed in terms of their compliance with employment equity in accordance with the EEA. The director-general (DG) of the department of labour (DoL) is tasked with this duty.

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Stricter enforcement of the EEA under the amendments

The Employment Equity Act, No 55 of 1998 (EEA), has been extensively amended. The amended act came into force and effect on 1 August 2014. This article examines the more stringent enforcement mechanisms introduced under the amended EEA.

The Employment Equity Act, No 55 of 1998 (EEA), has been extensively amended. The amended act came into force and effect on 1 August 2014. This article examines the more stringent enforcement mechanisms introduced under the amended EEA.

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Transformation: A reflection on the intent in the revised codes…

The original objectives of B-BBEE were formed from the late 1990's to 2003, while the country, at a socio-political level, was driven by a Neoliberal model. There was an understanding that B-BBEE was predominantly focused on building and strengthening a middle class, rather than being a grass-roots poverty alleviation and access mechanism. This can be seen for example from the relatively low weighting given to socio-economic development.

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