Business Transfers and Employment Rights in South Africa

The impact of business transfers on employment contracts: Developments from the common law
Introduction
A contract of employment as personal to the parties
A change in shareholding in the corporate entity that owns a business does not interrupt employment contracts with the corporate entity
A transfer of the business from one owner to another generally resulted (before section 197) in the redundancy of employees
The prohibition on unfair labour practices
Developments in Europe: The safeguarding of employees' rights
Developments in South Africa: Section 197 of the Labour Relations Act
The impact of the constitutional right to fair labour practices
Section 197: The statutory assignment of contracts of employment
The applicability of section 197
Introduction
The test for the application of section 197
"Transfer"
"Business"
Employment in the business being transferred
Transfer "as a going concern"
Conclusion
Addendum: The constitutional dimension
Introduction
Socio-economic rights
The status of employment benefits
Section 197 and the Constitution
Outsourcing
Applying the constitutional test
Conclusion
Consequences of transfer: Conditions of employment
Introduction
Transfer of a contract of employment: New contract or old?
The content of the contract of employment: What is transferred?
Automatic substitution of employers in respect of contracts of employment in existence immediately before the date of transfer
A right to object?
Rights and obligations between old employer and employee continue in force between new employer and employee
Anything done before the transfer by or in relation to the old employer is considered to have been done by or in relation to the new employer
Identifying the terms of the contract of employment
Arbitration awards and collective agreements
Variation by the new employer
Variation by performance in excess of what is required under the contract
Variation permitted (expressly or impliedly) by the terms of the contract itself
Variation where the existing terms of the contract cannot be performed
Permissible unilateral variation
Variation by agreement: Collective bargaining and individual consent
Do any process obligations arise when a section 197 transfer is contemplated or takes place?
Joint and several liability
Severance pay
Specific conditions of employment
Restraints of trade
Bonus incentive and commission schemes
Share option schemes
Benefits payable post-retirement
Job titles
Conclusion
Employee benefit schemes
Introduction
Termination of employment benefits will not generally be payable on the transfer of employment under section 197
Permissible variation
Pension funds
Medical aid schemes
Group life insurance and other insured benefits
Transfers from insolvent enterprises
The effect of insolvency on the position of employees
The purpose of sections 197A and 197B
The meaning of "transfer"
The scope of sections 197A and 197B
The effect of section 197A on the parties' rights and duties
Is the differentiation between employees of solvent and insolvent enterprises justified?
Further differences between solvent and insolvent transfers
Further requirements of the Insolvency Act and/or Companies Act
The duty to advise, to disclose information and/or to consult
Transfers and dismissal
Introduction
Constructive dismissal in the transfer context
Section 187(1)(g)
Remedies for other claims in terms of section 197
Introduction
Available remedies
Against whom must remedy be sought?
Contractual claims
Agreements in terms of section 197(7)