The New Dawn Birthed by Amendments to Section 187(1)(C) of the Labour Relations Act 66 of 1995: A Reflection on National Union of Metalworkers of South Africa and Others v Aveng Trident Steel

Author(s): Thobekile Dlamini-Jordan,Simbarashe Tavuyanago / Language(s): English Issue: 1/2023

This article assesses the challenges precipitated by the amendments to the South African Labour Relations Act concerning dismissals for operational requirements. The contribution analyses a seminal judgment by the Constitutional Court, which marked the first case to have been heard regarding the amended section 187(1)(c) of the Labour Relations Act. The methodology employed is that of a qualitative case study which is the most suitable approach as we discuss a Constitutional Court judgment. The research notes that section 187(1)(c) of the LRA created and will continue to create contention between employers and employees where employers view dismissal for operational requirements as a legitimate reason for dismissal, and employees see it as a guise to dismiss them unfairly. The article also finds that while the Constitutional Court made a definitive pronouncement on the legitimacy of the section as a reason for dismissal, it, however, created a vacuum in terms of the test to be used in determining whether section 187(1)(c) is the true reason for dismissal in a particular case. It concludes by emphasising the importance of certainty in the law and offers suggestions on which test should be applied moving forward. This contribution will be of critical importance to legal practitioners regarding future litigation on section 187(1)(c) and academics as it opens the potential for further research and legislative development.

Конфликтогени в педагогическата колегия на детската градина

Author(s): Nikolay Nikolov / Language(s): Bulgarian Issue: 1/2018

Conflicts in modern society are part of the process of natural development and the factors determining their emergence are a function of the dynamics of social development. The pedagogical team, as a formal social group, naturally has specific characteristics that imply the specifics of the conflicts in it. The main contradictions in this group are divided into three overarching directions, which are related to the relations and interrelations between the pedagogical team and the external social environment, internal formal and informal contradictions and interpersonal conflicts within the pedagogical team itself

ZATRUDNIENIE MATEK W NIEPEŁNYM WYMIARZE CZASU PRACY – PRZYKŁAD HOLANDII I POLSKI

Author(s): Magdalena Lipnicka / Language(s): Polish Issue: 3/2022

The aim of this article is to present and compare data on part-time employment of women (especially mothers), and try to formulate preliminary interpretations of these data in Poland and the Netherlands. The research questions are: What does part-time employment of mothers look like? How can the differences between Poland and the Netherlands be explained? The methodology employed here relies on a comparative analysis using existing data. The following conclusions can be drawn from the research. The cases of the Netherlands and Poland seem to confirm that the social and cultural context are very relevant with respect to strategies for combining motherhood and employment. Dutch mothers mainly work part-time, while Polish women very rarely use this option, opting either for full-time work or giving up employment.

ЗАБРАНАТА ЗА ПОЛАГАНЕ НА НОЩЕН ТРУД КАТО ЧАСТ ОТ СПЕЦИАЛНАТА ЗАКРИЛА НА ТРУДА НА НЕПЪЛНОЛЕТНИТЕ

Author(s): Iliyana Sabinova / Language(s): Bulgarian Issue: 4/2022

The ban on night work as a part of the work time's legal framework is an element of the special protection of minor labour during the employment relationship. The current re-search attempts to answer the question in what way and whether the ban protects the work of adolescents in an adequate and sufficiently satisfactory degree. The essence of the ban, the definition of "night work" and the administrative criminal liability as a consequence in violation of the ban according to the applicable national legislation are consistently investigated in the current research. The conclusions about the need for a legislative amendment that have been reached reason the suggestions made for the change and the improvement of some of the current legal provisions with the aim of greater security of life, health, welfare and development of working minors. This would have a positive effect on the special protection of the labour of minors which would become more comprehensive and complete.

Problem stosowania niektórych przepisów o ochronie konsumenta do osób fizycznych prowadzących działalność gospodarczą

Author(s): Tomasz Kotarski / Language(s): Polish Issue: 43 (2)/2023

The purpose of this paper was to analyse and comment on changes introduced to the Civil Code and the Consumer Rights Act, under which some consumer regulations apply to sole traders. The analysis was carried out on the basis of the dogmatic method, i.e., the exegesis of legal texts, as well as the examination of legal literature and judicial decisions concerning the discussed issues. The considerations made in the article led to the formulation of conclusions stating, inter alia, that the introduced provisions may be a manifestation of an overproduction of the law, and the objective of the amendment, in the form of counteracting inadequate protection of this category of entities, could be achieved based on the existing provisions on consumers – starting with the very definition of a consumer. Even if this proposal was rejected and it was stated that the changes aimed at increasing the protection of sole traders were desirable, the legal solutions adopted were considered selective and incomplete.

Evolution of the Internal Structure of the Social Insurance Fund

Author(s): Jacek Wantoch-Rekowski,Martyna Wilmanowicz-Słupczewska / Language(s): English Issue: 43 (2)/2023

The focus of the article is the Social Insurance Fund, which has been operating since 1 January 1999, and is a state special purpose fund with a specific structure. Separate funds function and operate within its framework. The number of these funds has already changed twice. The aim of the article is to analyse the legislative changes concerning the components of the Social Insurance Fund and to evaluate them. The study is dominated by the dogmaticlegal research method, and the historical-legal method is of auxiliary use.

Wyrok Sądu Apelacyjnego w Szczecinie III Wydział Pracy i Ubezpieczeń Społecznych z dnia 26 listopada 2020 r. (III AUa 268/20

Author(s): Not Specified Author / Language(s): Polish Issue: 43 (2)/2023

The Minimum Wage Law: A Snare and a Delusion

Author(s): Guriy Borodkin,Walter E. Block / Language(s): English Issue: 2/2023

In the view of many people, understandably, and all too many economists, disgracefully, the minimum wage law actually boosts compensation for people who would otherwise earn less than the amount established by this legislation. This is a snare and a delusion. In actual point of fact, thislaw increases the wages of no one at all, at least not in equilibrium; ratherit leads to unemployment for those workers unfortunate to have a mar-ginal revenue product below the level mandated by this enactment. It is the burden of the present paper to make good on this claim.

The integrity incident such as incompatibility of certain categories of public office with the status of individual trader - the role of the National Integrity Agency (I)

Author(s): Lavinia Elena Stuparu / Language(s): English Issue: 76/2022

The National Agency for Integrity was established in Romania in 2007 as an autonomous administrative authority, with legal personality, operating at national level. Based on and within the limits of the incidental legal framework, this authority exercises a number of responsibilities regarding unjustified assets, conflicts of administrative interests, conflicts of criminal interests or incompatibilities. Among them, the finding and sanctioning of the violation of the legal regime of incompatibilities provides the analysis context for the incompatibility between certain categories of public functions and the status of individual trader. The levels of discussion concern technical, procedural aspects, driven by the role of the status institutions that may intervene in case of such an incident of integrity, as well as conceptual aspects, determined by a normative evolution of the notion of individual trader.

The obligation to inform – an obligation of the professional carrier

Author(s): Cristina Stanciu / Language(s): English Issue: 78/2023

The modernization of the rules that govern the contract as a legal institution led to the nuance of the principles that govern this matter, imposing ideas such as: sustainable execution of the contract, contractual security, contractual solidarity, contractual effectiveness, but also numerous ethical instruments, such as good morals, good- faith, abuse of right. The obligation to inform is considered by the doctrine to be such an ethical instrument whose role is to prevent a failure in terms of the principle of maintaining the durability and effectiveness of the contract and building a contractual bond based on the active and loyal presence of the contractors. The obligation to inform has its source in one of the fundamental principles of civil law, the principle of good faith. This principle is the basis of many contractual and pre-contractual obligations, and the content of this notion is defined by jurisprudence. The Civil Code enshrines this principle in the various aspects it regulates. The fulfillment of the obligation to inform has an important impact on the one hand in the construction of the contract, on the other hand in its execution, an impact considered by the doctrine to be a systemic one and which brings a series of advantages for the contract. This principle is regulated in the Civil Code and in pre-contractual matters and it represents the legal basis that leads to a pre-contractual obligation - the pre-contractual information obligation. This obligation is all the more necessary if a professional is involved who, in the exercise of his activity, is obliged, depending on the activity he carries out, to fulfill it.

DURATION OF WORKING TIME, A SENSITIVE SUBJECT FOR THE PUBLIC POLICY MAKER

Author(s): Manuela Niță / Language(s): English Issue: 2/2022

Working time is an essential element of the labor relationship that is the subject of negotiations between the social partners, unions, employers and government factors, through which the harmonization of the employer's interests with those of the employees is sought. The interests of the parties are different: on the one hand, employees aim for increased quality of life and social protection through reduced working time, and on the other hand, employers aim for economic growth, supported by long and quality working time. In the present study, we carry out an analysis of working time highlighted at the level of 33 states, differentiated by category women, respectively men, but also regarding the preferences of employees regarding the reconsideration of working time. We will make assessments regarding Romania's situation in all the analyzed states in order to outline a clear picture of the position we have on the labor market, being a working tool for public policy makers.

THE WORKING TIME AND DUE SALARY RIGHTS, DURING THE SECONDMENT PERIOD, IN THE CASE OF DRIVERS WHO CARRT OUT INTERNATIONAL ROAD TRANSPORT OR CABOTAGE, IN TERRITORY OF THE EUROPEAN UNION

Author(s): Carmen Constantina Nenu,Amelia Veronica Gheoculescu (Singh) / Language(s): English Issue: 1/2023

Mobile workers who carry out international road transport activities, benefit from specific European and national regulations, adapted to the particularities of the work performed. In the context of special occupational risks, the protective dimension of health and safety at work is reflected both in the establishment of maximum driving times, but also in the maximum working time, as well as in ensuring the appropriate remuneration, throughout the period that the work is carried out under the same conditions with workers from a member state of the European Union. These rights of mobile workers are the object of analysis of this study, determined by the intervention of the European institutions in imposing some measures in the mobility packages applicable to drivers who carry out international road transport or cabotage operations on the territory of the member states and the reaction of the national legislator in their implementation.

ОСТВАРИВАЊЕ И ЗАШТИТА ПРАВА НА ПОРОДИЧНУ ПЕНЗИЈУ ВАНБРАЧНОГ ПАРТНЕРА, ИЛИ ШТА НАМ СВЕ ЗАКОНОДАВАЦ НИЈЕ РЕКАО?

Author(s): Goran Obradović,Anđelija Tasić / Language(s): Serbian Issue: 97/2022

The amendments to the Pension and Disability Insurance Act, enacted at the end of 2019, envisage that the right to a family pension can also be exercised by the surviving extramarital partner. Thus, extramarital partners have been equated (for the first time) with spouses in matrimonial relations. In order to be entitled to a survivor’s pension, both spouses and extramarital partners must inter alia spend at least three years in marriage or extramarital union, or have a child together. The existence of an extramarital union is determined in a non-litigious proceeding. Although this statutory specification of the constitutional norm on the equality of marriage and extramarital union is praiseworthy, the authors point out that the new legal provision raises a number of issues. The situation is indisputable if a man and a woman were in an exclusive extramarital relationship that lasted for a long time, and particularly if they have at least one child together. However, in the event that one of them was in a parallel extramarital union with another person, or if the condition of gender differentiation does not exist or has ceased to exist, it raises the question how the existence of an extramarital union will be proven in non-litigious proceedings. The authors examine whether the existing legal framework provides for achieving the goal of the provision envisaged in the Pension and Disability Insurance Act, and how possible abuses of this right can be prevented in order to protect the conscientious (bona fides) users acting in good faith. Although the Serbian legislator finally decided to fully equalize marital and nonmarital unions in terms of exercising the right to a family pension, we believe that the existing solution needs to be improved in order to avoid confusion in practice and prevent possible abuses. Only the nominal introduction of the provision on the equality of married and non-marital partners with reference to the non-litigation procedure has already opened a number of questions in practice. In this paper, we point to some issues concerning the method of determining the quality of an extramarital union and the competition between two extramarital unions. An innovative solution, which would represent not only a concretization of the constitutional provision but also a qualitative contribution to the pension and disability insurance system, calls for amending the existing solution in the Pension and Disability Insurance Act, detailed regulation of the procedure for determining the existence of extramarital union as a named procedure in the Non-litigation Procedure Act, and the introspection what the legislator actually wants for and from an extramarital partner. Although it sounds like a serious task, the importance of an institution such as extramarital union certainly deserves not such an approach.

LEGISLATIVE CHANGES IN THE FIELD OF LEGAL LABOR RELATIONS

Author(s): Isabela Stancea / Language(s): English Issue: 3/2023

Interested economic agents, employees and all interested persons must be informed about the appearance of three normative acts that bring important changes in the field of labor legislation regarding the level of the minimum gross salary starting from 01.01.2023, the framework model of the individual contract of work and the approval of the annual quota of foreign workers admitted to Romania. Thus, starting from January 1, 2023, the gross minimum basic salary per country guaranteed in payment, provided for in art. 164 para. (1) from Law no. 53/2003 – The Labor Code, republished, with subsequent amendments and additions, is set in money, without including increments and other additions, at the amount of 3,000 lei per month, for a normal work schedule of 165,333 hours per month on average, representing 18,145 lei/hour. For the year 2023, a quota of 100,000 foreign workers newly admitted to the Romanian labor market is established.

INSTITUTIONAL SUPPORT IN ALTERNATIVE CARE: FOSTER CARE AND COVID-19 PANDEMICS

Author(s): Gordana Horvat,Suzana Tomašević,Ana Lozina / Language(s): English Issue: 97/2022

The impact of the COVID-19 pandemic has generated new challenges in the work of social welfare institutions, particularly in the area of providing support in alternative forms of care, such as foster care. The need for support during the pandemic was very significant and necessary because foster families fall into the category of vulnerable groups, especially because they provide care for children displaced from their primary (biological) family. In addition to insufficient institutional support during the pandemic, communication with primary families was aggravated, which has had a negative impact on foster children and their needs. The Faculty of Law in Osijek is a partner institution in the Project “Zajedno do doma” (Foster Home for Children), funded by the EU and organized by the World Youth Federation Croatia. For the project purposes, a survey on institutional support to foster families was conducted from August to October 2021. The collected data will be presented and analyzed in this paper, in order to identify the needs of foster families, the relevant forms of institutional support, and the difficulties that foster families experience in case of insufficient support. This pilot research on the attitudes of experts and foster careers is a quantitative basis for further qualitative research on foster care in direct contact with foster cares. Based on this research, the authors have developed foster care guidelines, with special emphasis on the challenges of providing support during the COVID-19 pandemic.

Uwarunkowania prawne pracy zdalnej pracowników samorządowych

Author(s): Jarosław Czerw / Language(s): Polish Issue: 59/2023

The COVID-19 epidemic and its restrictions were (and still are) associated with employees working remotely. However, remote work has not yet been regulated by the Labor Code. The only legal grounds for remote work result from the Act of March 2, 2020, on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them. According to its provisions, remote work is work specified in the employment contract performed by an employee outside the place of their permanent performance, which may be commissioned by the employer to the employee in order to counteract COVID-19. Remote work defined in this way may be performed by employees within the meaning of the provisions of the Labor Code, including local government employees. The pro-visions of the COVID-19 Act on remote work are very general and do not resolve many important issues related to remote work. Therefore, local government employers should specify them in remote work rules.

Kilka refleksji odnośnie do trybów stosowania pracy zdalnej w świetle przepisów Kodeksu pracy

Author(s): Janusz Wiśniewski / Language(s): Polish Issue: 61/2023

Regulating remote work in the Labour Code is undoubtedly one of the most important solutions in labour law, as it responds to the challenges of the modern labour market. It should be noted that this regulation was eagerly awaited by both employers and employees. The issues related to this regulation deserve special attention given that they have not been subject to closer analysis in labour law scholarly literature. Of particular theoretical and practical importance is the issue of the mode of application of remote work. De lege lata, fundamental significance in this matter is held by Article 6419 § 1 points 1 and 2, § 3, § 6, and § 7; Article 6722 §§ 1 and 2; Article 6733 §§ 1 and 2 of the Labour Code. According to these provisions, remote work can be applied as a result of an agreement between the parties to the employment contract, an instruction of an employer, an application of an employee who is in a particularly difficult personal or family situation, an application of an employee who makes a request for flexible work organisation, a request of an employee for occasional remote work. The objective of the paper is to analyse the above-mentioned modes of applying remote work, as the provisions regulating this matter raise interpretational doubts. The author regards the voluntary nature of remote work as the most useful principle from the point of view of the systematization of his reasoning. The essence of this principle lies in the legislator’s sanctioning of the possibility of transferring work to the employee’s private space. It is also worth emphasizing that by the possibility of performing work in the employee’s private space significantly considers the health aspect of remote work – the protection of the employee’s fundamental goods, i.e., health and life (Art. 6719 § 3 of the Labour Code).

RESTRICTIONS ON A MINOR’S DISPOSAL OF FUNDS DEPOSITED AT THEIR BANK ACCOUNT IN POLAND

Author(s): Bartosz Namieciński / Language(s): English Issue: 9/2023

Minors are subject to special rules with regard to performing legal acts and participating in economic transactions. The purpose of this paper is to present restrictions imposed on persons under the age of 18 in Poland in terms of using a bank account. The secondary objective is to verify the ethical and legal justification of these restrictions. The study first presents the general principles of minors’ participation in economic transactions. Next, it presents the possibilities for a minor’s opening and maintaining a bank account. Finally, the issues of doing more than the acts of ordinary management in the management of funds by a minor (or his guardian) and the resulting limitations are discussed. The whole discussion closes with a short summary. The study uses the method of interpretation of the law in force. The analysis covers Polish legislation, judicial decisions, and the views of legal scholars and commentators.

Emeğini Evin Geçimine Özgüleyen Eşin, Diğer Eşten Karşılık Talebi

Author(s): Gökçe Canarslan / Language(s): Turkish Issue: Spec. Iss./2023

Article 186/III of the Turkish Civil Code No.4271, which entered into force on 01.01.2002 is stated that the contribution to the household expenses is the responsibility of both spouses. The contributions not only with their assets but also with their labor, regardless of whether they have a profession or not, are also considered within this scope. The contribution to the expenses of the household doesn’t have to be made with assets, and activities if any, where labor is at the forefront, are also considered as contributions to the family union. This behavior of the spouse who, taking into account the benefit of the marital union, renounces earning an income instead of working in a gainful job outside the home and devotes his/her labor to the maintenance of the house, according to Article 196 of the Turkish Civil Code is considered as his/her contribution to the expenses of the marital union.

The Effectiveness of Journalistic Associations and Syndicates in Algeria: A Survey Study on Algerian Journalists

Author(s): Yakoub Badji,Wafa Bourahli / Language(s): English Issue: 32/2022

This article examines the development of journalistic associations and syndicates in Algeria since independence, as well as explains the most essential shortcomings and difficulties of these entities in Algeria which could undermine journalistic practice's improvement and prosperity. The study sought to evaluate and assess the level of journalistic associations by using an online survey of 25 members of media associations and unions to explore its effectiveness on Algeria's media landscape. As a result, journalistic association and syndicate demonstrated the critical needs for a more democratic environment in order to carry out their duty effectively without any restrictions, based on the autonomy, pluralism, and diversity in Algeria media landscape.