The protection of workers in the case of business transfers : a comparative study of the law in the USA, UK and South Africa
Business transfers and accompanying business changes are a focal point for the tension between the protection of rights of employees, including their property rights in the job and their "right" to meaningful participation, and the interests of management in achieving its economic objectives effectively. A comparison of the law in the United States, South Africa and the United Kingdom can cast the divergent interests, which become conspicuous during corporate reorganisations, into bold relief, and suggest how those interests can be reconciled. This study shows that conventional labour law with its emphasis on voluntarism has not been able to resolve the basic conflict between the economic demands for restructuring and rationalisation (one of the main consequences of the global economy), and the social demands for workers' protection. By arguing that collective bargaining has never succeeded in effectively mitigating the power of management over the workforce, pluralist support of voluntarism is criticised. The main point that emerges from the comparison of the way in which the three countries deal with the phenomenon of structural business changes and the effect of such changes on workers, is that law, even though its effectiveness to bring about major changes in an industrial relations system is limited, can make some difference. Law can intervene in labour relations to set standards and lay down procedures for the exercise of managerial prerogative; specifically, law can introduce the values of liberal society into the workplace, such as rationality, fairness, and respect for individual rights. This study shows how, through the introduction of some of these values, legislation for the protection of workers' acquired rights, can provide a solution to the tension between managerial prerogative and employees' rights.