The National Plan for Higher Education, presented by the Minister for Education in March 2001, forms the basis for this dissertation's discussion of the issues of equity, restructuring, incorporations and mergers currently taking place in the higher education sector. Labor legislation also determines the respective rights and obligations of parties when it comes to restructuring that takes place in the higher education sector. The National Plan for Higher Education aims to change the landscape of the higher education system in this country.
This dissertation aims to highlight the measures that the role players must take to ensure that the implementation of the directives contained in, among others, the National Plan for Higher Education does not conflict with our labor legislation. This fact opens up the analysis of this topic to a need for socio-economic commentary, albeit only incidentally, in order to contextualize the labor law implications of the current issues in the higher education sector. 34;Higher education institutions in South Africa have been deeply affected by the changes taking place in the wider society and their transformation has become part of the wider process of political, social and economic change.
The National Plan addresses five main policy goals and strategic objectives, which the Ministry of Education considered essential for achieving the overall goal of transforming the higher education system. Ensure diversity in the organizational form and institutional landscape of the higher education system through the mission and program.
LABOUR LAW IMPLICATIONS
Submit all proposed new programs for regional approval to avoid overlap and duplication before submitting the programs to the Department of Education for funding approval and to the Council on Higher Education for accreditation. This will require institutions to establish a regional program clearance mechanism, which will include criteria for assessing program overlap and duplication. Inform the ministry of the intention to terminate certain programs at least one year before the intended closure.
The Ministry should also be informed of the reasons for closing the program and provide an impact assessment on the regional and national need and availability of such programs.
THE OBJECTIVE OF THE DISSERTATION
THE ARGUMENT
PROPOSED STRUCTURE/LAYOUT OF THIS DISSERTATION IN PUTTING FORWARD THIS ARGUMENT
When presenting the arguments, the equality clause of the Act on the Constitution of the Republic of South Africa,13 the provisions of the Equal Employment Act14 and those of the Act on the Promotion of Equality and Prevention of Unfair Discrimination.15. The decisions of dispute resolution bodies (the courts and CAMBA) will be used around the issue of affirmative action and the fairness or otherwise of its application. Reference will be made to the provisions of the Act on the Constitution of the Republic of South Africa,16 labor legislation and the decisions of our courts and literature in support of the argument.
The broad concept of restructuring and its implications must be argued with reference to the parties' rights both in terms of the constitution and labor law. The argument to be made in connection with each type of restructuring must be based on the constitutional protection of existing rights, the labor law requirements and procedures to be followed where restructuring is to take place, and the guidelines established by our courts in that connection. Where relevant, reference must also be made to the international labor law imperatives laid down in the International Labor Organization's conventions and recommendations.
The Act on working conditions17 and the Act on basic employment conditions18 must form the basis for the argument. Consideration must also be given to the Labor Relations Amendment19 adopted by Parliament, which significantly addresses the issue of the transfer of employment contracts existing between the parties to a third party, as well as issues surrounding the dismissal of employees based on the operational requirement of the employer.
DEFINITION/EXPLANATION OF CONCEPTS
The tension stems from the fact that the Minister of Education has the power in determining higher education policy. Section 6(2)(b) of the Employment Equity Act30 states: “It is not unfair discrimination to take affirmative action measures consistent with the purpose of this Act.” In the case of Carephone (Pty) Ltd vs Marcus N037, the Labor Appeal Court limited the assessment to whether it was justified, in other words (or) justified in terms of the reasons given for it.
The National Plan for Higher Education is the basis of the fundamental restructuring that the Ministry of Education seeks to introduce in South Africa. The Ministry of Education raised several issues regarding the experiences of other countries in the National Plan itself. 34; (1) moving away from higher education systems consisting of many small, specialized, single-purpose institutions to systems consisting of a smaller number of large, multidisciplinary institutions; and. 2) the tendency of national governments to retain the prerogative to set broad policies, especially budgetary ones, increasingly transforming the responsibility for growth, innovation and diversification in higher education to individual institutions."
Prichard, R M 0 'The Third Amendment to the Higher Education Act of the Federal Republic' (1986) Vol 15 No 5 Higher Education 598. Top-down processes are the most common - but they are often associated with many tensions and conflicts between both administrative and scientific staff.' 'The bottom-up mergers are often smoother and more successful.' 34;3.3 The National Plan proposes that participation rates should be increased through the recruitment of workers, adult students, especially women, and the disabled, and through the recruitment of students from Southern African Development Community (SADC) countries as part of the SADC Protocol on Education.
The program for the transformation of higher education, published in Official Gazette no. 18207 of August 14, 1997.
Overview
Even before the introduction of the state plan10, higher education institutions were forced to restructure due to. 20 This principle was also enunciated in the case of Ndlela v S A Stevedores Ltd21 although it was decided in terms of the old Employment Relations Act22. Therefore, it is accepted that, if the matter is not reached, the intended change in terms of employment may result in termination of employment based on the operational requirements of the employer.
Secondly, the outsourcing of some part of the employer's operation does not necessarily mean the transfer of the employment contracts of the employees of the employer to the subcontractor. Be satisfied that the employers at the relevant public higher education institutions have fulfilled their obligations in terms of the applicable labor law." This resolution provided for the absorption of the educators who were employees of the Provincial Education Governments by the institutions of higher education.
34; satisfied that the employers in the public institutions of higher education in question have fulfilled their obligations under the applicable labor law." The Labor Relations Act, 1995 (Act No. 66 of 1995) provides for a departure from work based on the operational requirements of an employer such as the one based on the economic, technological, structural or similar needs of the employer. As a general rule, economic reasons are those related to the financial management of the enterprise.
Structural reasons are related to the dismissal of posts due to a restructuring of the employer's business. In other words: it is not the employee who is responsible for the termination of the employment relationship. In the event of a disagreement as to what information should be disclosed, either party may refer the dispute to the CCMA in terms of section 16(6) of the Act. 5) The period over which consultations must extend is not defined in the law.
The employer must prove that the reason offered is based on the company's operational requirements. In other words, the employer must prove that the reason offered is not simply a cover-up for another reason for the dismissal of the employees. The Labor Court and the Labor Appeal Court have delivered significant judgments on the question of factual fairness in dismissals based on the employer's operational reasons.
This means that the jurisprudence that has developed under the existing Article 189 must still be respected if a dismissal is to be carried out based on the operational requirements of the employer. Section 197A of Amendment BiII130 will enable higher education institutions to dismiss an employee for operational reasons following a merger. There are also changes that come as a result of changes in government policy.
It is argued that, after the emergence of the national plan, the consideration of nationality should not be a limiting criterion in the implementation of equality in the higher education sector.
