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Refereed articles

Who’s in and who’s out: Labour law and those excluded from its protection

Jan Theron examines the role of trade unions in relation to the difficult question of which workers are, or should be, regarded as employees for the purposes of labour legislation. The article discusses the hierarchies found in the workplace and the problems associated therewith, and suggests how trade unions could address these problems.

It also provides a critical analysis of the 2002 amendments to the Labour Relations Act and the Basic Conditions of Employment Act, in terms of which workers are presumed to be “employees” if certain conditions are present. The biggest challenge, he argues, is not so much to expose disguised employment relationships (in which employees are disguised as “independent contractors”) as to extend protection to employees who are excluded from important provisions of labour legislation, such as those in “triangular” employment relationships. However, the article warns against placing too much reliance on the courts. The best prospect for achieving broader legal protection, it concludes, is for trade unions to organise those who are excluded.

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