Die oordrag van ondernemings met verwysing na uitkontraktering

Abstract

Business transfers have become an increasingly important part of commercial life. The consequences of transfers in the field of employment relations are a sensitive issue. This dissertation firstly examines the employment consequences of business transfers under the common law. The conclusion is drawn that the rights of employees were not sufficiently regulated under the common law. The employment consequences of business transfers have now been regulated, since 1996, by section 197 of the Labour Relations Act 66 of 1995. Its meaning and effect, however, produced considerable disagreement and the provisions were later amended in the light of various problems identified in litigation. This dissertation examines the application and effect of section 197 on the employment relationship with reference to relevant case law. The question is also asked if the provisions of the act have the effect as to provide for the automatic transfer of contracts of employment in the event of a business transfer. It is concluded that the act makes it clear that employment contracts are automatically transferred when a going concern changes hands. The question is further asked if an outsourcing transaction could equate with a legal transfer and therefore be covered by section 197. The views of the labour courts and the Constitutional Court are analysed with reference to the cases of NEHAWU v UCT and SAMWU v Rand Airport Management Company. It is concluded that section 197 provides comprehensive protection to the rights of employees in the event of a business transfer.