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Is THERE a DIFFERENCE between a TEMPORARY EMPLOYMENT SERVICE (TES) and a SERVICE PROVIDER for PURPOSES of SECTION 198?   q  Amendments to Section 198 and the insertions of sections 198A-C of the LRA came into operation on 01 January 2015. q  One of the most crucial impacts of these amendments is the deeming provision in terms of section 198A(3)(b)(i), which provides that an employee engaged by a temporary employment service (TES) (otherwise known as a labour broker), for the purposes of rend...
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The BCEA and Its Amendments Pertaining To Compliance Orders: What Does It Mean For You? 1 January 2019 marked a new age for the South African labour market with the introduction of the National Minimum Wage Act (NMWA). Due to the introduction of a National Minimum Wage, certain provisions of the Basic Conditions of Employment Act, 75 of 1997 (BCEA) have been affected. Therefore, the Basic Conditions of Employment Act, as amended (BCEAA), inter alia incorporates certain provisions of the NMWA. T...
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What is Insubordination?

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What is Insubordination? Insubordination, in the workplace, refers to an employee's intentional refusal to obey an employer's lawful and reasonable instructions.  Such a refusal may undermine a supervisor's authority and ability to manage and, therefore, is often a reason for disciplinary action, up to and including dismissal. Elements of insubordination For conduct to constitute insubordination, a number of elements must be present;      It must be clear and evident that an instruction wa...
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Organisational Rights

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Organisational Rights: -    Obtaining Organisational rights assist a Union in recruiting and servicing its members, and to ensure workplace democratisation.   Is a union entitled to exercise organisational rights in a specific workplace, regardless of the scope of its constitution?   In order for a Union to exercise organisational rights in a workplace, the scope of the Union’s Constitution must include the industry/sector within which the Employer operates.   Example: -   In Lufil Pa...
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Arbitrary Ground Journal

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Alleging Discrimination based on an Arbitrary Ground: For an applicant to successfully prosecute his or her case on the basis of unfair discrimination on an “arbitrary ground” as contemplated in section 6(1) read together with section 11(2) of the EEA, the applicant will be required to identify and state the ground relied upon and such ground must have some characteristics that impacts upon his/her human dignity. Section 6 of the EEA provides as follows:  “Prohibition of unfair discrimina...
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Fixed-term Contracts of Employment: Ensuring Compliance with the Labour Relations Act   The amendments to the Labour Relations Act (“the LRA”) in particular section 198B thereof, which amendments came into operation on 1 January 2015, clarifies the legal position regarding fixed-term contracts of employment.   Section 198(B): - In terms of section 198B, there are two main remedies available to an employee employed on a fixed-term contract – to be deemed indefinite (section 198B (5)) or t...
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Hearsay Evidence

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Hearsay Evidence The common law definition of hearsay evidence has been replaced with a statutory definition. Hearsay evidence is defined in Section 4 of the Law of Evidence Amendment Act 45 of 1988 as: “Evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”. It affirms that the person who tenders hearsay evidence is not the originator of that evidence. Generally, hearsay evidence is inadmiss...
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Picketing

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Picketing   The Labour Relations Amendment Act significantly amends section 69 dealing with picketing. The amendment requires a commissioner/BC panellist appointed to deal with the dispute that may lead to the strike/lockout to determine the rules surrounding the picket. A conciliating commissioner or BC panellist is therefore compelled to try and secure a picketing agreement between the parties when conciliating the dispute, before the expiry of the conciliation time limit. Parties are there...
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1 January 2019 marked a new era for the South African labour market, with the introduction of the long-awaited and ground-breaking National Minimum Wage Act (NMWA). The NMWA introduced a national minimum wage below which no worker should be paid.
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