scholarly journals Liberté de grève et liberté de commerce. Le régime de la grève légale au Québec au regard de celui découlant de la législation américaine du travail

2005 ◽  
Vol 29 (2) ◽  
pp. 447-467
Author(s):  
Pierre Verge
Keyword(s):  
Collective Bargaining ◽  
State Intervention ◽  
Bargaining Process ◽  
Competitive Situation ◽  
Basic Principles ◽  
American System ◽  
Internal Equilibrium ◽  
Legislative Framework ◽  
Federal Jurisdiction ◽  
The Right

Although built around the same basic principles of exclusive representation of unit employees in favour of the majority union, the legislative systems regulating the collective bargaining process in Quebec and within the American federal jurisdiction present significant differences with respect to both the scope of permissible strike action and the course of a legal strike. A survey of the relevant discrepancies reveals that the legislative framework is more stringent in Quebec. The relative flexibility of the American system tends to work against the employer when one looks at the greater availability of the right to strike that it affords. This is not only the case with respect to so-called economic strikes over collective bargaining issues, but also with respect to different kinds of protest strikes. On the other hand, the American employeur seems to enjoy a relatively freer hand in taking different measures to counteract a strike, for instance, through the use of permanent replacements. A certain internal equilibrium may then be prevalent within each of the compared legal systems. The competitive situation of American and Canadian employers included within the same free trade zone is also dependent upon wider juridical and non juridical factors. As to the more pronounced degree of state intervention with respect to collective bargaining in Canada, its historical roots would tend to preserve it.

scholarly journals The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3

2017 ◽  
Vol 17 (1) ◽  
pp. 612
Author(s):  
Shamier Ebrahim
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Bargaining Process ◽  
Stare Decisis ◽  
Labour Relations ◽  
Appeal Court ◽  
Labour Practice ◽  
Northern Cape ◽  
The Right ◽  
Term Benefit

The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action). In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5] It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon. Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA. 

Intentions and their Effects on the Legality of Dispositions and Contracts

2002 ◽  
Vol 4 (1) ◽  
pp. 130-141
Author(s):  
Abdullah Muhammad al-Shami
Keyword(s):  
Basic Principle ◽  
Islamic Law ◽  
Human Action ◽  
Basic Principles ◽  
Human Actions ◽  
Special Place ◽  
Legal Contract ◽  
Islamic Jurisprudence ◽  
Legal Opinions ◽  
The Right

In Islamic law judgements on any human action are usually evaluated in terms of the intention involved. Accordingly, the rules of substantive issues have to be accommodated under the basic principles of Islamic jurisprudence. The understanding of these principles by the juristic scholar is highly rewarding because it will lead the muftī to the right path in deriving legal opinions from the original sources. The basic principle of Islamic jurisprudence, which stipulates that ‘all actions depend on intentions,’ has played an important role in the construction of Islamic jurisprudence. Moreover, this rule has a special place in the theory of Islamic legal contract. So what is the effect of intention in the validity of human actions and legal contracts? It is known that pure intention has significant effects on spiritual worship and legal contracts of transaction. It also gives guidance for earning rewards from Almighty Allah. This article concentrates on the effect of intention in perpetual worship, the concept of action and intention in Islamic legal works, the kind of contract with all its components, and the jurists' views on the effects of intention in human action and legal contract along with their discussion and counter-arguments.

Towards a Post-Social Right to Life, Liberty and Security of the Person Through Markets? Conceptions of Citizenship and the Implications for Health Law as Governance

2019 ◽  
Vol 29 (5) ◽  
pp. 609-628
Author(s):  
Karl Guebert
Keyword(s):  
State Intervention ◽  
Healthcare Services ◽  
Health Law ◽  
Right To Life ◽  
Public System ◽  
Canadian Charter ◽  
The Right ◽  
Market Solutions ◽  
Positive Capacity

In the context of increased expectations of healthcare services and fiscal pressures, rights claims constitute a force pushing for privatization and thus threaten Canada’s single-tier public system. This article introduces the concept of a ‘post-social right’ to understand the current legal effort to enforce a right to healthcare derivative of section 7 of the Canadian Charter of Rights and Freedoms. Commonly considered as a ‘negative’ right, I suggest that the right also has positive capacity. Rather than simply protecting against unjust state intervention, section 7 claims valorize a particular mode of sustaining life, liberty and security of the person according to neo-liberal principles. A right to markets in healthcare aligns health law with the logic of prudentialism as a technology of governance. As the enforceability of the right expands and strengthens, health law as governance operates to normalize market solutions to health matters. It follows that a form of two-tier citizenship arises, dividing ‘activated’ citizens from the ‘inactive’.

EFFECTIVE STEPS ON THE WAY TO MODERNIZATION OF CIVIL SERVICE IN THE SYSTEM OF JUDICIARY BODIES: INTRODUCTION OF ELEMENTS OF GAME THEORY

2018 ◽  
Author(s):  
Olena Hladunova ◽  
Keyword(s):  
Game Theory ◽  
Justice System ◽  
Civil Service ◽  
Civil Servants ◽  
International Standards ◽  
Scientific Article ◽  
Basic Principles ◽  
Conflict Situations ◽  
Definition Of ◽  
The Right

In this scientific article the main elements of game theory are analyzed, the achievements of domestic and foreign scientists devoted to the consideration of such theory are investigated. The expediency of involving in the practical activity of the civil service in the system of judicial authorities effective methods used in the field of business and consisting in the use of game technologies, which have proven their effectiveness in terms of providing quality services. It is focused on the fact that game theory can play a key role in the decision-making process, however, it is important to strictly adhere to the limits of its application. Possible conflict situations in the work of civil servants of the justice system are formulated and it is investigated that in conflict conditions each so-called participant of the game makes his course, i.e. chooses his strategy, as a result of which the relevant conflict situation is outlined and a set of strategies of all players. Some examples of the use of elements of game theory are given and the content of certain types of strategies is revealed. In particular, a strategy is described, which is denoted by the term "screening". Taking into account the definition of ways to modernize the civil service, the need to include in standardized training programs for civil servants of the justice system category "B" training course, which will include the basic principles of game theory for their active use in conflict, skills to compromise in relationships with visitors to the court - recipients of court services, selection of the right strategy, consideration of theoretical and game modeling of personnel management tasks, focusing on the ability to obtain and timely provide the necessary information to create a new civil service in the judiciary that meets international standards.

Prestaţia compensatorie în Codul civil român

2021 ◽  
Vol 2021 (2021) ◽  
pp. 164-179
Author(s):  
Flavius Antoniu BAIAS ◽  
◽  
Stela STOICESCU ◽  
Keyword(s):  
Case Law ◽  
Social Utility ◽  
Legal Institution ◽  
Legal Regime ◽  
Procedural Law ◽  
The Social ◽  
Legal Nature ◽  
Legislative Framework ◽  
The Right ◽  
Compensatory Payment

This study aims to describe the legal regime of the compensatory payment, with reference to the legislative framework, the sources of inspiration of the regulation, as well as to the current national case-law in this matter, which confirms, by the large number of cases solved after the entry into force of the Civil Code, the social utility of this legal institution. On the basis of the case law examples provided, the authors analyze the legal nature of the compensatory allowance by distinguishing it from similar institutions – the maintenance obligation between ex-spouses or the right to compensation – the conditions to be fulfilled when granting compensatory payment, the criteria used to impose, modify or terminate the obligation, and the substantive and procedural law difficulties of these disputes.

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