Research Articles

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High heels in the workplace – a health hazard or a symbol of femininity? Observations on appearance regulation in Mofokeng v CCMA & Others
(Juta & Company, Ltd, 2022) Collier, Debbie
For over thirty years the ILJ has remained the premier South African labour law reporter. This seminal monthly journal covers judgments and awards handed down by the Labour Court, Labour Appeals Court, the CCMA, Bargaining Councils and private arbitration bodies. Also included are labour-related judgments from the Constitutional Court, the Supreme Court of Appeal, the Land Claims Court and the Pension Funds Adjudicator. The ILJ is the only labour series to publish relevant judgments of neighbouring states. Every fourth issue includes insightful and thought-provoking articles and case notes, written by local and international experts.
Scope of protection: a retrospective and prospective overview of the protected disclosures act 2000
(Centre de droit comparé du travail et de la sécurité sociale, 2023) Osiki, Abigail
Following South Africa’s transition to democratic rule, numerous whistle-blowers have raised the alarm regarding corruption and improprieties at work, in both the private and public sectors. To prevent the negative consequences of whistleblowing, the Protected Disclosure Act, 2000 came into force in February 2001 and was subsequently amended in 2017. However, despite the existence of this law, the sometimes-devastating consequences that have followed disclosures have led to debates on legal protection or rather, the lack thereof of whistle-blowers. This article therefore aims to reflect on how South African courts, have interpreted the protection provided by this Act for whistle-blowers. More particularly, issues concerning the meaning of disclosure, meaning of good faith and the nature of compensation that the courts have awarded are highlighted.
The employment equity amendment bill B14B – 2020: innovating towards equity or kicking the can down the road?
(Juta & Company, Ltd., 2020) Debbie, Collier
The Employment Equity Amendment Bill introduces significant changes to the regulatory framework for affirmative action by, among other amendments, shifting the responsibility for determining employment equity targets from workplace to sectoral level. It also operationalises s 53 of the Employment Equity Act (EEA) and employers will need a certificate of compliance from the Minister confirming compliance with the EEA, including the sector targets, before being permitted to contract with the state. Notwithstanding merit in the idea of a sectoral (contextual) approach to affirmative action and the value of incentivising compliance, considered in terms of its provisions and omissions the Bill is found wanting. The EEA is a fundamental tool in the struggle against workplace discrimination and systemic inequality-crucial for transformation-but the design of the Bill suggests a high-handed and partisan approach and a missed opportunity to adjust course and affirm and implement international human rights law and principles. However, this is a qualified and incomplete assessment, as the sectoral numerical targets have yet to be published, and it remains to be seen whether these, and the associated framework, will reflect a more nuanced and context sensitive approach to the design and implementation of affirmative action measures than currently anticipated. That would be a most welcome development
Amendements de la loi sur l’équité en matière d’emploi en Afrique du Sud : à côté de la cible !
(Open edition journals, 2023) Collier, Debbie
En mai 2022, le Parlement sud-africain a « donné le feu vert » au Projet d’amendement de la loi sur l’équité en matière d’emploi B14B - 20202. Le Projet d’amendement des dispositions de la loi n°55 de 1998 sur l’équité en matière d’emploi (« EEE ») est actuellement en attente de validation présidentielle. Il est prévu que les modifications entrent en vigueur le 1er septembre 20233. L’EEE fait partie du cadre juridique pour l’élimination des discriminations en Afrique du Sud4, qui s’accompagne d’un engagement constitutionnel en faveur de l’égalité matérielle5. L’EEE comprend des dispositions relatives à la mise en oeuvre de mesures d’actions positives sur le lieu de travail6. Plus précisément, le chapitre III de l’EEE vise à assurer l’égalité de résultat7 par des actions positives destinées à « remédier aux inégalités en matière d’emploi subies par des groupes désignés (...) afin d’assurer leur représentation équitable à tous les niveaux professionnels sur le lieu de travail »8.
Facilitating decent work: the case of domestic workers in Nigeria
(Jute, 2022) Osiki, Abigail
A decade after the first international standard regulating domestic work was introduced decent work remains a challenge for domestic workers in Nigeria. Within the framework of ILO’s Convention on Domestic Workers 189 of 2011, this article explores the extent to which domestic workers in Nigeria benefit from legal protection. The article argues that although parts of Nigerian labour law are relevant to domestic workers, there is need for the development of regulation which gives full effect to the provisions of the convention. The country’s de facto exclusion of domestic workers from the national minimum wage and social protection laws as well as regulatory gaps in dealing with safety in the workplace remains problematic for domestic workers. Against this background, this article suggests the development of a regulatory model which would facilitate the achievement of decent work Nigerian domestic workers.
Discrimination on an ‘arbitrary ground’ and the right of access to justice
(Jute, 2021) du Toit, Darcy
In Naidoo & others v Parliament of the Republic of SA the Labour Appeal Court interpreted ‘arbitrary ground’ in s 6(1) of the Employment Equity Act by rejecting a ‘broad’ interpretation (ie the grammatical meaning of the term) and defining it ‘narrowly’ to mean the same as an ‘unlisted’ ground of discrimination. Looking at the judgment through the lens of access to justice, the note observes that the judgment raises a number of questions. These include: (a) the purpose of the amendment to s 6(1) by which ‘arbitrary ground’ was added; (b) the relationship between the concepts of ‘arbitrary ground’ in s 6(1) and s 187(1)(f) of the Labour Relations Act; (c) the application of the principles of legal interpretation to ‘arbitrary ground’; (d) the implications and limits of a ‘broad’ interpretation; (e) the social dimension of the constitutional context; (f) whether discrimination on an ‘arbitrary ground’ is by definition invasive of human dignity; (g) whether a ‘narrow’ interpretation of ‘arbitrary ground’ involves reading an implicit limitation into s 6(1); and case law in which a ‘broad’ approach was adopted. The note seeks to address these questions.
Protecting platform workers: options and challenges
(Jute, 2022) du Toit, Darcy; Howson, Kelle
The use of digital platforms as a means of organising work and creating new work opportunities (‘platform work’) is on the increase in developing as well as developed countries. The article starts from three widely-accepted premises: platform work typically falls beyond the scope of labour law because labour rights are generally limited to ‘employees’ whereas platforms typically classify their workers as ‘independent contractors’; in terms of international law, platforms workers enjoy the same basic rights as all other workers; and national legal regulation needs to be adapted in order to ensure protection of platform workers’ rights. In this context the article examines the obstacles to regulatory change and considers the use of rating systems as a means of exerting reputational pressure on platforms to acknowledge workers’ rights and implement fair working practices, using the Fairwork project and its interventions across four continents as an exemplar. It then turns to the need for legalregulation of platform work as a means of bringing about fair working practices where voluntary compliance fails. In particular, it considers broader definitions of ‘worker’ to identify all those deserving of legal protection in addition to ‘employees’, as well as the forms in which labour rights can meaningfully be extended to workers operating outside an employer’s workplace and managed via digital applications.
Fair work in South Africa’s gig economy: A journey of engaged scholarship
(Elsevier, 2023) du Toit, Darcy; Van Belle, Jean-Paul; Howson, Kelle; Graham, Mark
Because of its relatively well-developed, highly urbanised economy and high penetration of mobile internet access, the platform economy took off quickly in South Africa, with international players vying for market share and local platforms pursuing more innovative approaches. Digital labour platforms have offered new earning opportunities to many in the country, but concerns have been raised about the quality of jobs created, and whether they meet standards of decent work. South Africa was one of the pilot countries for the Fairwork Project. This article describes the specific conditions which supported the take-off of location-based digital labour platforms in South Africa, explains the methodology used for pursuing the Fair work research, discusses ratings outcomes based on the empirical research and summarizes the action research component of the project—with particular attention paid to outcomes for workers. We also list some of the lessons that were learnt and give a critical reflection on the project in the hope of assisting other researchers investigating the fourth industrial revolution, the gig economy, and decent work standards, especially in the Global South.
COVID-19 pandemic, a war to win: assessing its impact on the domestic work sector in Nigeria
(Taylor & Francis, 2023) Osiki, Abigail; Sadiq, Hassan; Osiki, Prisca
This article examines the effects of the COVID-19 pandemic on the work conditions of domestic workers in Nigeria. We use four indicators – earnings, access to social protection, working conditions and labour protections to provide a nuanced assessment on the impact of the pandemic on domestic workers. Domestic work is an important aspect of productive labour and an indispensable factor that contributes to the well-being of households and the economy. Indeed, the enormous contribution of this sector to societies has been further exposed by the COVID-19 pandemic. However, while domestic workers are lauded as essential workers, their work remains extremely vulnerable to exploitation and human rights violations, and the pandemic has aggravated this situation. In the results, we find that while many domestic workers did not lose their jobs, their earning power dropped because of low wages in the sector. Furthermore, only 6% of survey respondents reported having access to the government’s social protection measures. The findings of this study emphasises the need for the development of a regulatory model which considers the realities of the domestic work sector. Data used in this article draws from questionnaires administered on 220 domestic workers across four geo-political zones of Nigeria.
Domestic workers in South Africa: inclusion under the compensation of occupational injuries and diseases act
(The Thinker, 2023) Mullagee, Fairuz; James, Candice; Osiki, Abigail
After decades of deliberate exclusion from labour laws and social protection in South Africa, domestic workers have slowly been able to taste the fruits of years of laborious fights for recognition, inclusion, and dignity. On 19 November 2020, the Constitutional Court ordered the inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act (COIDA). This marked another victory for domestic workers. Textual inclusion is a relatively easier feat compared to the real challenge of implementation to give effect to such inclusion. The monitoring of implementation and progress of domestic workers who have benefitted from this inclusion has been relatively underexplored. This study explores the progress made in the development of social protection following the recent inclusion of domestic workers in COIDA, together with the implementation of this law. The article uses desktop research to investigate barriers to the development and implementation of social protection in the domestic work sector. The article highlights the importance of multi-stakeholder collaboration, clear policies from the Department of Labour, and the provision of constructive support for employers in the domestic work sector to facilitate compliance with COIDA.
International regulation of platform labor: A proposal for action
(Weizenbaum Institute for the Networked Society, 2021) Fredman, Sandra; du Toit, Darcy; Graham, Mark
Platform-mediated work is a source of livelihood for millions of workers worldwide. However, because platforms typically classify workers as ‘independent contractors’, those workers are generally excluded from the scope of labor rights. This has a corrosive effect on working standards of platform workers, creating the need for an international regulatory framework to prevent a race to the bottom. To address this situation, the article proposes an outline for an International Labor Organization (ILO) Convention for the regulation of platform work going beyond the employee/independent contractor dichotomy. It identifies five core issues in the platform economy – low pay, poor working conditions, inaccessible and unreasonable contracts, unfair management, and a lack of representation – and demonstrates how existing ILO standards could be adapted to address these issues.
The impact of socio-legal inequality on women in the Nigerian domestic work sector
(University of the Western Cape, 2022) Osiki, Abigail
This article examines the impact of socio-legal inequality on the work conditions of female domestic workers in Nigeria. Domestic work is an important aspect of productive labour and an indispensable factor that contributes to the well-being of households and the economy. However, domestic workers face challenges that are multidimensional and gendered; they are often victims of physical and sexual abuse, and experience discrimination concerning pay, working conditions, and legal rights.

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