Exploring Section Essay

Abstract Since the Labour Relations Act 66 of 1995 came into effect the South African labour market has undergone numerous changes. Such a consequence is the rise in the number of employees engaged in atypical or non-standard employment. This paper responds in the affirmative to Cheadle’s assertion that the Labour Relations Act 66 of 1995 provides inadequate protection to vulnerable workers such as non-standard employees. I explore the recent attempts to extend the protection of certain labour and social security laws to some categories of non-standard employees and I recognise their shortcomings. I suggest that senior and middle management employees no longer require statutory protection from unfair labour practices as such protection can be attained through contractual means. I propose that there is presently an urgent need to create a statutory arrangement which affords adequate protection to non-standard workers. 1. Introduction The current South African labour legislation is one which affords too much protection to those who do not need it and far too little to those who require it most. In his paper Cheadle explores the consequences of the changes to the labour market since 1994 and recognises that the current conceptual structure has failed to accommodate these changes. The first source for reform is that there is â€Å"a huge protection hole – casual workers are not protected, informal workers are not protected, marginalised workers are not protected. † This results from the changes undergone by the labour market and the fact that the current remedies for unfair labour practices in the Labour Relations Act 66 of 1995 have â€Å"never been subject to careful scrutiny†. The most effective response to this problem is a re-evaluation of the current labour legislation. Cheadle’s main argument is that there is no longer a need to protect the working class against unfair labour practices as they are able to protect themselves through contractual means. I concur with Cheadle’s affirmations and in strengthening my argument I focus firstly on the brief history and development of the concept of an unfair labour practice. Through this exploration I evidence how the lack of proper scrutiny of unfair labour practices has resulted in an ill conceived provision. I argue that the current labour legislation does not extend protection to non-standard workers this based on the fact that protection rarely goes beyond the employment relationship. I further argue that if middle and senior employees can contractually negotiate â€Å"their hours of work and rights to any payment for overtime work† then surely this is possible for purposes of unfair labour practices. 2. Origins of unfair labour practices The first observation made by Cheadle is that the ‘jurisprudence relating to the individual employment relation was fully codified in respect to dismissal but only roughly codified in respect of the residue. † Cheadle questions the lack of scrutiny applied to the definition of section 186(2) and argues that there is a need to revise and reconsider the practicality of unfair labour practices listed in section 186(2) of the LRA. The idea of unfair labour practice was first introduced into the South African labour law by the Industrial Conciliation Amendment Act. Under The Industrial Conciliation Amendment Act unfair labour practice was widely defined follows: â€Å"any labour practice which in the opinion of the industrial court is an unfair labour practice. † This wide definition was a mechanism intended to protect white workers against â€Å"less favourable conditions of employment in the face of an extension to black workers of access to occupations previously reserved for whites. † Because of this wide definition the legislature was obliged to intervene and in 1980 the concept of an unfair labour practice was more comprehensively defined. The protection regarding the right to strike, refusal to negotiate in good faith, selective dismissal or re-employment, and the use of derogatory language were then built in to the jurisprudence. However this was considered a rather strange jurisprudence as it governed both individual employment relationships and collective bargaining relationships. By 1995, in devising the Labour Relations Act, the unfair labour practices were built into the Act by way of the whole portfolio of organisational rights. The LRA was then negotiated and a set of transitional provisions relating to unfair labour practice where deferred until the Basic Conditions of Employment Act would be dealt with. When the time came the drafters failed to incorporate unfair labour practices and it was left as a transitional provision. It was finally incorporated through the 2002 amendments, where as Cheadle states, â€Å"a couple of words were changed† and it now constitutes the body of the statute known as a â€Å"charter for middle and top management. The history of unfair labour practice therefore strengthens the argument for the need to re-view the current legislation and to align it with the protection of vulnerable workers. 3. Regulated flexibility One of the underpinnings of the Labour Relations Act is the concept of regulated flexibility. Cheadle explains that in formulating the LRA the focus was channelled at achieving â€Å"efficiency, productivity and adaptability, but within the parameters or th e limits of protection. This ties in with the concept of labour market flexibility which gives rise to â€Å"new types† of employment which include but not limited to, â€Å"non-permanent employment for instance fixed-term and part-time work, through labours broker, tele-work, seasonal work, student jobs, working from home, self-employment and subcontracted work. † The current position is that there is insufficient statutory protection for workers employed in a typical work. Difficulty is further encountered in that the protection afforded under collective agreements does not extend to these forms of employment. Employers’ attempts to avoid protective labour legislation and restraints of the traditional employment relationship have also contributed to the rise in atypical employment. This constitutes the crux of the discussion in that law reform should rather shift its focus from increasing regulation to the achievement of labour market flexibility in order to adapt to the changing economic environment as well as to extend the protection under labour legislation to marginalised workers. 4. Contract of Employment and the â€Å"protection whole† The contract of employment creates a standard form of employment. It is the source from which protection and social security afforded under South African labour law is derived. According to the definition of employee in the LRA and BCEA this would mean that workers employed in a typical or non standard employment are ultimately excluded from the protection afforded under current labour legislation. Despite the wide definition of employee in that it includes â€Å"any other person who in any manner assists in carrying on or conducting the business of an employee†, non-standard workers such as part-time workers or home workers are still not protected by current labour laws. Cheadle argues that the reason labour law legislation does not extend protection to these non-standard worker is based on the history of labour law and the contract of employment. He makes an interesting argument in that the link to the contact of employment must be severed so as to accommodate any worker who works in a sector irrespective of the existence of a contract of employment. I fail to see the rationale behind this assertion. Cleansing the labour legislation of the employment contract would only open up the flood gates for unwarranted litigation and confusion as this is the only source for structure and order. Rather than tearing down well serving structures law reform should rather work on incorporating protective provisions into the legislative framework. A recommendation made by Mathias Nyenti is that trade unions should become more actively involved in extending protection to non-standard workers. However, trade unions are of two minds, on the one hand there is the need to promote the working conditions of non-standard workers but on the other is the fear that supporting labour flexibility will only increase non-standard employment and potentially corrode their support base. . Anti working class law? The next argument made by Cheadle and perhaps the most controversial is that, it has become unnecessary to protect middle and top management against unfair labour practices. The assertion is that these categories of workers can protect themselves through contractual means or otherwise through the common law. However, I question whether the common law is adequately equipped to deal with fai rness in the workplace? For instance, if an employee is presented with a situation where there is no contractual rrangement in place providing for promotional prospects, such an employee cannot claim that the employer acted unfairly in not promoting that an employee. Cheadle further argues that there â€Å"is no need for the judicial regulation of the selection decisions (hiring, training, promotion) and those aspects of discipline short of dismissal (suspension, demotion and other disciplinary measures). † In his breakdown of statutory unfair labour practice Cheadle first addresses the issue of recruitment and hiring and questions the reasoning behind its exclusion from the list of unfair labour practices. He concludes that the legislation has put mechanisms in place to protect against victimisation, discrimination, and corrupt appointments and those should therefore constitute the parameters in which the legislation should operate. Simply put legislation should not interfere with the operational personnel decisions of the employer. The issue of promotion is an interesting one. Cheadle questions why senior and middle management are given the right to challenge a promotion whereas this has never been a problem for ordinary workers. This mirrors the position in appointment and hiring. Which brings us back to the question–do senior and middle management really need such protection? The next unfair practice is the issue of demotion and I question why such a practice is regulated because as Cheadle asserts one cannot be demoted without their consent. If a worker is given an alternative between demotion and dismissal and the worker refuses to be demoted, that can be challenged under the law of dismissal. â€Å"Cheadle’s argument is therefore not for greater inclusion but rather an acknowledgement of the remedies and relief under existing common law and contract law. 6. Business perspective From a business perspective it is argued that an increase in labour market flexibility will attract foreign investment resulting in high employment levels and the mitigation of poverty. The argument is that over-regulated labour markets tend to have the opposite effect, reducing global engagement and the prospect of employment. â€Å"However, trade unions believe tha t government needs to protect its vulnerable workers against exploitation if it is to achieve its social transformation objectives. † 7. Conclusion The recent changes in the labour market have thrown vulnerable workers in a â€Å"protection hole† and the current labour legislation unfortunately fails to remedy this position. The bottom-line is that labour reform should be focused on protecting those employees who need protection the most such as workers in atypical employment. There is a great need not only for legislative reform but also reform of the institutions which implement the legislation such as the Commission for Conciliation, Mediation and Arbitration. While I am in agreement with Cheadle’s assertions on the most part, the suggestion that the employment contract should be done away with is a highly controversial and one which I do not agree with. One provision which should be reviewed or even removed however is one which offers unwarranted protection to senior and middle employees who are able to protect themselves through contractual means. Section 186 no longer has a place in the legislative framework and should either be re-evaluated to include vulnerable workers or removed in its entirety. Bibliography Books Van Jaarsveld et al 2001 LAWSA 8

Investment and portfolio analysis Essay Example | Topics and Well Written Essays - 1500 words

Investment and portfolio analysis - Essay Example On the contrary, Sharpe ratio refers to a measure of risk adjustment measure that utilizes standard deviation when computing portfolio returns and inherent risk associated with a particular portfolio (Ctaff, 2012). Empirical research asserts that if Sharpe ratio is higher it implies returns are better. Therefore, by utilizing standard deviation, Sharp ratio assumes that the relevant risk is total risk unlike Treynor ratio which assumes that the relevant risk is systematic (Ctaff, 2012). Both Treyon and Sharpe ratios are similar; however, the two measures differ in terms of how they determine of risk volatility. Whereby, Treyon ration utilizes beta while Sharp ratio tend to utilize standard deviation (Anric, 2013). Information ratio measures the ability of corporate managers to utilize skills/ luck to generate excess returns beyond the established benchmark. This ratio utilizes alpha elements as well as standard deviation to measure volatilities associated with a particular portfolio (Reilly and Brown, 2012). Therefore, information ratio assumes that the relevant risk is total where both systematic and unsystematic risks are combined (Harkins, 2012). Jensen alpha refers to a measure of portfolio returns predicted using capital asset pricing model. In addition, Jensen’s alpha assumes that relevant risk is systematic (Bacon, 2013). On the other hand, Sortino ratio refers to a ratio that helps to determine the difference between good and bad risk in sharp ratio. This ratio tends to be similar with Sharp ratio. However, it utilizes downward deviation making it slight different from sharp ratio. This ratio measures return that can be derived during volatility whereby, standard deviation may be utilized. Therefore, Sortino ratio assumes that relevant risk it total (Feibel and Vincent, 2011). 2. Discuss whether the present value of cash flow approach and the relative valuation approach to security valuation can be considered to be competitive or complementary. T he present value approach may utilize discount rate to discount cash flows generated by a particular project to determine their value. Additionally, the present value approach may be utilized in making valuations of different assets such as shares, real estate properties and even bonds (Feibel & Vincent, 2011). Whereby, a negative net present value indicates that a project may not be profitable. In addition, a positive net present value implies that a project may be profitable and therefore, such project should not be undertaken because it will expose the company at a greater risk. On the other hand, relative valuation approach focuses at valuing company stocks with those of company own historical method of valuation. In addition, relative valuation tends to compare company’s stocks with the market value of other similar assets to determine whether they can be suitable for investments (Feibel and Vincent, 2011). This means that similar stocks of a particular company should be compared with those stocks of companies operating in the same market. However, relative valuation approaches have some limitations. For example, all companies may not utilize the same corporate strategies and hence, great discrepancies may exist between companies (Feibel and Vince

Catcher in the Rye Essay Example | Topics and Well Written Essays - 500 words - 2

Catcher in the Rye - Essay Example He allowed Holden to use a lot jargon or street lingo to give an uncanny realism to the novel. The novel seems to have an overwhelming sense of doom and gloom. The character of Holden Caulfield wants to get out of his familiar surroundings because he was not satisfied. In a sense, he seems to be going somewhere else but with no definite direction or destination. Holden feels an unsettled spirit, he wants to go from here to there and is always in the habit of saying goodbye to someone or someplace he had been to before. His restless spirit wants to be always on the go but he lacks a certain motivation, like he is lost to the world. â€Å" . . . I mean Ive left schools and places I didnt even know I was leaving them. I hate that. I dont care if its a sad good-by or a bad good-by, but when I leave a place I like to know Im leaving it. If you dont, you feel even worse.† This line sets the tone for the rest of a story that is one of unmitigated ennui. Boredom, restlessness, insecurity and emptiness had pervaded the novel all throughout except when Holden is with children whom he is fond of. â€Å"I dont even know what I was running for – I guess I just felt like it.† With this line, it is quite obvious that Holden wants to get away from something but he just cannot put his finger on it or what he was running away from. Perhaps he was running away from himself as he is mostly disgusted with the ways things are in his life, especially with the death of brother Allie to sickness (leukemia). He is merely ambivalent with anything and everything, from his own father, himself and also with the whole world itself. Holden had been traumatized by this death but he does not even know it or will admit to it (Bloom 8); he is haunted by it. In a sense, Holden wants to disappear from this world, perhaps to stop his worrying. He is always worried, â€Å"when I really worry about

Tom, Doris, Noel and John Essay Example | Topics and Well Written Essays - 1000 words

Tom, Doris, Noel and John - Essay Example A child is not competent to give sworn evidence, but capable of giving evidence that is unsworn, if the court has a satisfaction that the child knows the difference between truth and lies, the court briefs the child on the importance of telling the truth, the child responded appropriately that he/ she will not tell lies in the proceedings. It also dictates that this process should be done through asking straightforward questions in things such as their age, name schooling and favorable past times among others. Therefore, if all these turn positive then the court can call the child as a witness2. In reference to the above mentioned procedures, the court in this case may call tom in as a witness if he passes the competence test a responded positively to question of giving the truth. However, the court cannot call Tom as a witness if he does not show positivity to the mentioned procedures. Hear say witness A witness is who has seen, has a claim, of by someone in authority thinks of a pe rson, to have knowledge that the court might find relevant to a case. The information given may either be willingly or under compulsion. A hear say witness is one who testifies on account of what someone else says3. There are many limitations in most court proceedings on whether the information given by a hearsay witness is admissible. There are a number of governing principles towards admissibility of a hearsay witness. This depends on the part that delivered the information to the hearsay witness. If the eye witness cannot clearly recall the happening at the crime scene, and had mentioned them to another person immediately after the occurrence, and the other party can clearly recall what was mentioned then a hearsay witness can facilitate the case4. In reference to the case, Tom’s mother can testify if tom is unable to give the correct chronology of occurrences. This is possible because tom is a child and can easily forget what he had seen, though he was present at the crim e scene. However, if Tom will be capable of giving the correct information, then his mother will not be required to give her testimony based on what her son told her. Compelling a witness After a law suit is filed, a witness that refuses to appear before the court can be forced to come. This is known as compelling. The person has to the first object to the request of appearing before the court. If this happens, the judge writes a subpoena to the witness. This happens in cases that the testimony of the victim is highly crucial. If there is an order compelling someone to court, and he or she defies it, the court has the power to appropriately assign punishment to the person. One of the most thing that the court does is making the side the side of the witness lose the case. In reference to law, the court has the authority to summon Anna. Failure to adhere to the subpoena, Anna will receive the lawful assigned punishment. Most probably, she will have to risk her husband going to jail be cause she is the only one able to justify his claims about his location referring to the accusation time5. Expert evidence The law provides for the intervention of expert analysis. Experts and those instructing them must have regards, to guidance provisions in the protocols for instructions of experts in giving evidence. First, the expert assists the court in creating objectives and unbiased opinions and must not assume the role of the advocate. Experts must consider all materials facts including those which might be

THE RETAIL GROCERY MARKET Essay Example | Topics and Well Written Essays - 1500 words

THE RETAIL GROCERY MARKET - Essay Example dominate the UK grocery market, accounting for around three quarters of total sales, which IGD values at  £88.2billion  in 2005.   However, this share of total grocery has fallen slightly in recent years as other sectors have grown more quickly. The Convenience sector continues to be a strong driving force behind the overall growth within the UK grocery market.  Ã‚   For every pound spent on food and grocery, consumers now spend 20p in convenience stores and IGD currently values the sector at  £23.9billion, up 4.9% on 2004, which now accounts for a 19.9% share of total grocery. So let’s try to identify the mission objectives and responsibilities of an organisation within its environment. To make our ideas more clear we’ll take a certain retailer, using for instance Tesco Company. Everybody can agree that the main aim of any business is profit earning. Even the relevant definition of â€Å"business† approves that any enterprise or company is created to earn money. Of course, shareholders of any business are its owners and want to get maximum profits. If a company stops producing profits it can be adjudicated a bankrupt. Everybody knows that retail is one of the most competitive economics sector. Shops, marketplaces, boutiques, super- and hypermarkets offer us great choice of different goods and foodstuffs. That’s why if any company has been taking the top positions for almost 10 years, - it is considered as a great success. Britain hypermarket net Tesco is one of such leaders. This company sails one third of all foodstuffs in the country. Tesco can firmly be named as a â€Å"national shop†. Rich, average and poor customers can find the foodstuffs according their wishes and financial abilities. Comfortable location, competitive prices, polite staff, great variety of goods and products, mainly, circumspect development strategy helped Tesco to become a really national shop. Let’s analyze the most important responsibilities, among which the main is

Music Publishing Essay Example | Topics and Well Written Essays - 2000 words

Music Publishing - Essay Example Musicians are artists that are mostly hard working and unacknowledged. Making money with music is not an easy road. The way for any business to make money is through volume and this is no different in the music industry. Volume comes when one recording is sold repeatedly so that the money accumulates and makes the people who created and own the music money from its sales. What typically happens, however, is that those with the power ‘buy out’ the rights to what a musician plays so that they do not get paid for every use of the recording that is paid for by one entity or another. Musicians with power will continue to own their rights, but those who are hired for short term of only for the period of time to make a recording are bought out so that the re-sale of the music is not limited by a large body of ‘partners’ who all have rights to be paid (Harrison 2011, p. 232). There was a time when even the artists were not included in the group who was paid on the r eturn of selling the music. Paul McCartney can attest to the pain of that as he saw his entire catalogue of music sold to Michael Jackson after sharing with him that it was going up for sale. As a result of that sale, every time that McCartney wants to play â€Å"Hey Jude† he has to pay a royalty, even though he wrote the song. (Marinucci 2009). In order to create ownership to a piece of music the contract must include that ownership will be retained either in part or as a whole. The statement that is being addressed is whether or not â€Å"All musicians featured on a popular music recording are entitled to an appropriate share and interest in the music publishing copyright of the work performed on that recording†. In addressing the definitions of music, composition, and ownership, the answer is that it is not the case that all musicians would be qualified to gain as an author to a piece of music should they participate in its recording. Contribution is very specifical ly defined and if a contributor does nothing to qualify under the parameters that have been set, they are not eligible for an interest in the exploitation of that piece of music (McLeod and DiCola 2011, p. 78). 2. Defining Music The first thing that must be done in order to support a legal definition of ownership and the right to be paid for music is in defining what is meant by music. The written composition is not what is being discussed. Music is what is heard. Arnold (2009, p. 1) uses the example of a piece of music that is played by Louis Armstrong as it is compared to that of Peter Ecklund. The distinction is clear as the sound that Armstrong creates has a quality that is unique to his own personal nuances in the work. In modern collectives, however, it is not as simple as that. Burnard (2012, p. 68) discusses the creative process for musicians. It is a process that sometimes is led by one or done isolated, that can be done by only select members, or is most often a collective experience in which the philosophy and intentionality of the group is expressed through what is produced musically. This not only includes the musicians, but the producer and sometimes the managers as they all work towards the production of a type of audible expression. Burnard (2012), p. 69) states that this is a â€Å"non-linear, multifactorial, and relational†

Death of a Salesman Essay Example | Topics and Well Written Essays - 750 words - 3

Death of a Salesman - Essay Example Linda, the wife, who had a firm grip over the situation, even though she did not want to hurt the family in any way, is shown in the end as unsuitable to face reality while emulating dead Willy in talking to him, in the same way, how Willy spoke to dead brother Ben. This makes the play end as an unfinished tragedy. Willy has passed on his living in illusion to his favorite son Bliff, who thinks of big results, without making any effort towards it ("To suffer fifty weeks a year for the sake of a two-week vacation"). He knew of father's infidelity, but would not inform the mother, would not work for his graduation and would not work anywhere and ends up as a petty criminal. Even in the end, instead of making an honest start, he goes and steals a pen from Bill Cliver, ruining a possible career, and the saving grace comes only then, because he sees the truth at last ("I looked up and I saw they sky ... and I realized what a ridiculous lie my whole life has been") and realises that he had been fooling himself. Hap, on the other hand, craves for father's attention, while the father showers attention on Bliff, who could not care less. Hap is unhappy to hurt family members by telling the truth and tries to gloss it over ("My own apartment, a car, and plenty of women, and still, goddamit, I'm lonely"). Linda, who was realistic enough to realise that Willy was marching towards suicide, hesitates to confront the reality and has a total breakdown after his death. Finally, Bliff comes out as a real person who was ready to discard illusions ("We never told the truth in the house for ten minutes"). The play, divided into three sections is a saga of illusion starting from Willy Loman, a failing salesman, working on commission, could not complete sales trip, tired of life, returned home after 15 years of drifting. He sees a glorifying future for sons, Biff and Hap, though boys think he is becoming senile. Willy embarrasses the boys frequently by falling into another era, on a flashback, conversing with his hero, dead brother, Ben. He lives in world of illusion and false sense of reality, to cover his failures and creates fantasies of success. Even though Ben had stumbled into riches, Willy would like to glorify it as result of Ben's hard work and invents much swagger for Ben ("When I was seventeen, I walked into the jungle. And by twenty-one, I walked out. And by God, i was rich!"). A young woman with whom Willy had an affair intrudes into his illusions. He misguides his sons about life and success saying that looks and being liked are enough in life. "Willy did himself and his family a disservice by putting too much emphasis on appearance and popularity, and not enough on the value of hard work. He wound up living in a daydream whenever things went wrong, and his sons were unethical" http://www.bellmore-merrick.k12.ny.us/death.html Even though he was not particularly liked by anyone, he invents another lie that he was universally liked and when he decides to kill himself, again he had the illusion that the entire community will attend his funeral and once again, he was proved wrong. He was unrealistic enough to refuse Charlie's job and even Bliff tries to wake him up out of the reverie ("Pop, I'm a dime a dozen and so are you"). Hap makes up things exactly like Willy about his sales store and marriage to make parents happy. He wants Bliff to hide the fact that he could not even meet Bill Cliver from Willy. Psychologically