Journal articles on the topic 'S26 of the Labour Relations Act. 66 of 1995'

The SBV Services (Pty) Ltd case brought a novel concept into the labour dispute resolution arena: arbitrators must inform employees who succeed in proving that they were dismissed for an unfair reason of the implications of a reinstatement or compensation order in terms of the Labour Relations Act 66 of 1995 before making an award. This case discussion highlights how the court, under the pennant of the interests of justice, made injudicious errors in the interpretation and application of accepted legal principles, and the potential negative effects that enforcement of this principle could have.

With the entering into force of the Companies Act 71 of 2008 in 2011 a number of rights were granted to trade unions by the act. The Companies Act 71 of 2008 not only grants rights to registered trade unions, as is the case in labour law, but in some cases it grants rights to trade unions representing employees at the workplace. It is argued that rights afforded to trade unions by the act ought to be granted only to trade unions that are registered in terms of the Labour Relations Act 66 of 1995. In addition, it is also argued that the Companies Act 71 of 2008 ought in principle to differentiate between rights that are granted to registered trade unions representing employees at the workplace and rights that are granted to registered majority trade unions, or at the least to sufficiently representative trade unions.

Protection in terms of labour law is primarily only available to persons with status as employees. In South Africa the courts have over the years developed different tests to establish who is an employee and therefore entitled to protection afforded by labour law. These tests have been incorporated into legislation. The Labour Relations Act 66 of 1995 provides for a definition and presumption of who is an employee. The Act further excludes certain categories of persons from its application and ambit. Although magistrates have not expressly been excluded from the application of the Act, it has been held that they are not employees, because such a categorisation would infringe upon the principle of judicial independence as guaranteed by the Constitution of the Repubblic of South Africa, 1996. The purpose of this paper is to evaluate whether magistrates could be categorised as employees in terms of the traditional tests of employment and still be able to maintain judicial independence as required by the South African Constitution.

In South Africa employees are protected by various pieces of legislation. Section 23 of the Constitution of the Republic of South Africa 1996 provides for a right to fair labour practice. In its preamble the Labour Relations Act 66 of 1995 (hereafter referred to as the LRA) states that the purpose of the Act is to advance economic development, social justice, labour peace and democratisation of the workplace. The LRA also states that one of its objectives is to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution. The Occupational Health and Safety Act as amended by the Occupational Health and Safety Amendment Act 181 of 1993 provides for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery. The LRA provides for dismissal for incapacity and dismissals for misconduct. It also differentiates between the two. The LRA provides for both substantive and procedural fairness when dismissing an employee for incapacity and misconduct. This paper will examine the rationale behind differentiating between dismissal for drunkenness and dismissal for alcoholism.

The Labour Relations Act No. 66 of 1995 introduced workplace forums (WPFs) as a structure to promote employee participation in decision-making in the workplace. The study gathered the perceptions of management representatives regarding the reason(s) for the establishment, the process of establishment as well as the functioning of workplace forums in their respective organisations. The results indicate that contrary to popular belief management representatives understand that greater employee participation is the reason for the establishment of a workplace forum and that the establishment and functioning of workplace forums take place in accordance with the prescriptions of the Act. It is recommended that management create a climate in which more workplace forums can be established.

According to Chapter 2 of the Labour Relations Act 66 of 1995, employers, like trade unions, have a right to freedom of association. However, hardly any research has been conducted to establish the efficiency/effectiveness of employers’ organisations. The question thus is: To what extent do members (companies) make use of the services rendered by their employers’ organisations, and how satisfied are they with the service provided? From this study it is clear that a small percentage of companies avail themselves of the services of employers’ organisations. Popular areas of contact appear to be human resource management, labour relations and training. A number of problems in the area of client satisfaction have been identified and recommendations are made to increase the efficiency/effectiveness of employers’ organisations. It is clear that despite the limited use of their services, employers’ organisations continue to fulfil a key role in the labour dispensation in South Africa.

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level. It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.

This note explores the powers of the Labour Court as envisaged in the Labour Relations Act 66 of 1995 (LRA), where a protected strike disintegrates into violent riotous conduct. The legal status of protected strikes raises important questions of law, namely: whether the Labour Court has the authority to alter the legal status of a strike; the autonomy of collective bargaining; and the legal test which the Labour Court should apply when intervening. The court in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd 2016 37 ILJ 476 (LC) dealt with this precise problem. There can be no doubt that South Africa is plagued by widespread strike violence which often occur during protected strikes. However, this contribution poses the question whether the Labour Court has not overstepped its mandated jurisdiction and it questions whether such alterations of the status of strikes would have a positive effect on the institution of collective bargaining.

The adoption of legislation such as the Labour Relations Act No 66 of 1995 and the Promotion of Access to Information Act No 2 of 2000 has brought about radical change in the process of disclosure of information in South African organisations. The article reviews developments in respect of information disclosure in South Africa and other countries and discusses the effects of the LRA in regard to disclosure of information to trade unions and workplace forums. It then describes a study conducted by the author and discusses the findings. It concludes with pointing out certain shortcomings in the disclosure process and urges managements and the trade unions to work together to improve this important tool for achieving success in organisations and enhancing industrial democracy.

A fixed-term employment contract is an example of atypical or non-standard employment. Fixed-term appointments can have many benefits when utilised for proper and lawful reasons. These contracts are frequently abused, however, by unscrupulous employers and are generally regarded as providing less security to employees than permanent employment. The article considers the general use of fixed-term contracts and addresses selected issues pertaining to the 2014 amendments to the Labour Relations Act 66 of 1995 in as far as these contracts are concerned. The article also considers the potential effect these amendments might have on common historic problems associated with fixed-term contracts and highlights certain unresolved problem areas and uncertainties.

Legislation such as the Labour Relations No 66 of 1995 and the Promotion of Access to Information Act No 2 of 2000 has paved the way for creation of a culture of un-coerced disclosure of information in South African organisations. The article reviews progress in respect of information disclosure in South Africa and other countries and discusses the effects of the LRA in regard to disclosure of information to trade unions and workplace forums. It then describes a study conducted by the author and discusses the findings. It concludes with pointing out certain weaknesses in the disclosure process and exhorts managements and the trade unions to work together to improve this important tool for achieving success in organisations and enhancing industrial democracy.

Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), has over the years proven to be a controversial section. At the heart of the controversy is the question as to whether an employer may terminate employees’ contracts of employment based on operational requirements in circumstances where they refuse to accept changes to terms and conditions of employment. This question came before the courts on a number of occasions and answered in the affirmative by the Labour Appeal Court in Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA ((2003) 21 ILJ 133 (LAC)), and confirmed on appeal by the Supreme Court of Appeal in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005 (5) SA 433 (SCA)). However, the LRA has since been amended with the Labour Relations Amendment Act 6 of 2014 (LRAA). Whether an employer may, in light of the amendments, adopt this approach, was recently considered by the LabourAppeal Court in National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) ((JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) (Aveng case (LAC)). The judgment is noteworthy as it is the first time that the Labour Appeal Court (LAC) delivered judgment relating to section 187(1)(c) of the LRA post-amendment, thus providing a degree of judicial certainty on the interpretation to be accorded to the amended section.

The Labour Relations Act 66 of 1995 unequivocally promotes the policy choice of majoritarianism, in furtherance of orderly collective bargaining and the democratisation of the workplace. The majoritarian model aims to minimise the proliferation of trade unions in a single workplace and to encourage the system of a representative trade union.Section 18(1) of the Labour Relations Act enables majority unions to enter into collective agreements setting thresholds of representivity for the granting of access, stop-order and trade-union leave rights to minority unions. In furtherance of the majoritarian framework, collective agreements concluded between majority unions and employers can be extended to non-parties to the agreement in terms of section 23(1)(d) of the Labour Relations Act provided specified requirements are satisfied. In Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (POPCRU) the Labour Court was required to consider if the collective agreements concluded between the employer and the majority union could be relied upon to prohibit the minority union from securing organisational rights. In so doing, the Labour Court had to reconcile the fundamental principle of freedom of association and the right to fair labour practices (to organise and engage in unfettered collective bargaining) within the context of the majoritarian framework. The Labour Court in POPCRU held that the collective agreement concluded with the majority union must have preference over the organisational rights of minority unions, in keeping with the principle of collective bargaining hierarchy and the legislative framework. This case note argues that, while the finding of the labour court in POPCRU is correct on the facts and is in keeping with the principle of majoritarianism, the legislative model may no longer be suitable within the context of the current socio-economic and political landscape. Strike violence, loss of confidence in existing bargaining structures, and the alienation of vulnerable employees from majority unions has resulted in minority unions taking up the cudgels of frustrated and disempowered employees, as witnessed in the Marikana experience. The note suggests that in the light of the changing dynamics of the collective bargaining environment, it may be time to revisit the majoritarian model.

The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining.

The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee. The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature.

Recently the South African company law landscape underwent a dramatic overhaul with the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance. It is clear that companies are no longer accountable just to their shareholders but also to society at large. Leaders should, for example, direct company strategies and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and should thus also manage the business in a sustainable manner. An important question in company law still today is in whose interest the company should be managed. Different stakeholders of importance to companies include shareholders, managers, employees, creditors etcetera. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies, and it encourages the efficient and responsible management of companies. When considering the role of employees in corporations it must be noted that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political changes were evident after South Africa's re-entering the world stage in the 1990s. Changes in socio-economic conditions within a developing country were also evident. These changes had a major influence on the South African labour law dispensation. Like company law, labour law is to a large extent also codified. Like company law, no precise definition of labour law exists. It is clear from the various definitions of labour law that it covers both the individual and collective labour law and that various role-players are involved. Some of these role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties are ultimately what will guide a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed with the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and transformation of the workplace are central issues in South African labour law. This is due to the constitutional changes that have taken place in South Africa, where the protection of human rights and the democratisation of the workplace are advanced. Before the enactment of the LRA, employee participation and voice was a much-debated topic not only locally but also internationally. It is therefore essential when considering employee participation to take due cognisance of both the labour and company law principles that may be pertinent, as well as the need for workers to have a voice in the workplace and for employers to manage their corporations. This article will attempt to indicate how the different functions, theories and models of labour and company law accommodate and promote the interests of employees in corporations and will also attempt to reconcile these differences.

The Employment Equity Act 55 of 1998 (EEA) is the main piece of legislation which seeks to achieve equity in the workplace by redressing unfair discrimination. Unequal pay for equal work and work of equal value are specific forms of discrimination which are dealt with in the EEA. The EEA provisions dealing with pay discrimination applies to all employees in the workplace which includes atypical employees. An employee experiencing pay discrimination in the workplace would thus use the EEA to institute an equal pay claim. This, however, has changed since the introduction of sections 198A-198D of the Labour Relations Act 66 of 1995 (LRA) which provides equal pay protection for atypical employees earning below the threshold of R205 433.30 and subject to certain other conditions. Sections 198A-198D of the LRA only deals with equal pay for the same or similar work. The sections do not deal with equal pay for work of equal value. This equal pay protection in the LRA is unique as the redress of unfair discrimination is not one of the purposes of the LRA. The purpose of this article is to analyse the equal pay provisions as set out in sections 198A-198D of the LRA in order to ascertain the ambit of the protection offered by the sections, the limitations thereof and the dispute resolution procedure which should be followed. A brief comparative study with the law regulating equal pay for atypical employees in the United Kingdom will be undertaken in order to learn lessons for the equal pay legal framework in the LRA. International labour law will also be referred to.

In South Africa, the Labour Relations Act 66 of 1995 (LRA) regulates and protects the position of the employee who reasonably expects that a fixed-term contract will be renewed on the same or similar terms while the employer only offered to renew the contract on less favourable terms or in some instances was not prepared to renew the fixed-term contract at all. The LRA regards the latter conduct as a dismissal, as long as the employee can prove that the employer was responsible for creating the reasonable expectation of contractual renewal. In contrast to this position, the LRA does not regulate or protect the position of the employee whose fixed-term contract was repeatedly renewed on the same, similar or even improved terms, while the employer was in a position to offer the employee indefinite employment. The employer may even have created a reasonable expectation that repeated renewals would result in permanent employment. The exploitation and abuse of the fixed-term contract to the extent that an employee is deprived of employment security and the benefits linked to an employment relationship of indefinite duration have prompted a comparative investigation into this particular field of law.

It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.

In South African labour law, as is the position in other international jurisdictions, the contract of employment is founded on an employment relationship between employer and employee. This case note discusses the nature and scope of the implied term of trust and confidence in the relationship in relation to managerial employees, with particular emphasis on breach of fiduciary obligations as well as incompatibility (MacGregor “Racial Harassment in the Workplace: Context as Indicata SA Transport and Allied Workers Union obo Dlamini & Transnet Freight Rail” 2009 Industrial Law Journal 650). This obligation of mutual trust and confidence cuts both ways (Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280) and means that the employer must not behave arbitrarily or unreasonably, or so as to destroy the necessary basis of mutual confidence (Malik v BCCI [1998] AC 20 35 and Woods v WM Car Services (Peterborough) Ltd 1981 IRLR 347).Since the dawn of democracy in 1994 and influenced by constitutional changes in government, South African labour law has been drastically transformed. The new government, led by the African National Congress, had to come up with a legislative framework to deal with racism. Although the Labour Relations Act 66 of 1995 (LRA) does not explicitly deal with the question of racism at work, the importance of forging harmonious employment relationships is covered in the misconduct and incapacity in Schedule 8 of the LRA (Code of Good Practice: Dismissal). To this day, racism at the workplace remains a scourge and for this reason this case note examines the Rustenburg Platinum Mine v SAEWA obo Bester 2018 (5) SA 78 (CC)) case as its focal point. The effect of racism requires that a balance be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly and improperly exploited.

This edition of PER consists of eight articles, four notes and two book reviews covering a range of topics. The first article is by Oliver Fuo, a postgraduate student of the North-West University (Potchefstroom Campus). His contribution deals with the status of executive policies and the basis for their judicial enforcement in a constitutional and socio-economic context. He demonstrates that "executive" policies may be perceived to have the force of law, especially where their enforcement may be imperative for the realisation of socio-economic rights. Secondly, Ig Rautenbach of the University of Johannesburg considers empirical data on the effectiveness of the Constitutional Court during the period 1995 to 2012. He focuses on the following three questions: "How did the cases reach the court", "why did the court refuse to consider some of them", and "how often did the court invalidate laws and actions". In the third article, Magda Slabbert and Hendrik Pienaar, follows a multi-disciplinary approach to discuss the legal position of the locum tenens that is often used by medical practitioners in private practice. They recommend that a locum tenens be appointed as an independent contractor rather than an employee, and argues that the onus to ensure that he or she is registered and fit to practice rests on the principal. The fourth article by Carika Keuler deals with the "pay now, argue later" rule in terms of the Tax Administration Act 28 of 2011. She is of the opinion that the Act fails to address the imbalance between the duties of the South African Revenue Services and the right of the taxpayer to access the courts. JC Knobel, the author of the fifth article, gives an overview of the conservation status of eagles in South Africa. He discusses the existing legal framework and makes a number of recommendations to improve their legal status. Two authors, Laurence Juma and James Tsabora, both from Rhodes University, discuss the possibility of South Africa enacting a new law regulating private military and/or security companies, which they refer to as PMSC's. The seventh article by Johan Kruger and Clarence Tshoose gives a South African perspective on the impact of the Labour Relations Act 66 of 1995 on minority trade unions. In the eight place, Dave Holness offers an analysis of compulsory "live client" clinical legal education as part of the LLB course as a means of improving access to justice for the indigent.

The right to freedom of religion is one of the fundamental human rights. This is evident from several sections of the Constitution of the Republic of South Africa, 1996 (the Constitution), including sections 9, 15 and 31. Section 9(4) prohibits unfair discrimination (whether direct or indirect) against anyone on one or more of the grounds listed in section 9(3), which includes religion. Section 15(1) states that everyone has the right to freedom of conscience, religion, thought, belief and opinion, while section 31(1)(a) provides that persons belonging to a religious community may not be denied the right to practise their religion with other members of the community.In line with the Constitution, labour legislation such as the Labour Relations Act 66 of 1995 (LRA) and the Employment Equity Act 55 of 1998 (EEA) also protects this right. Section 187(1)(f) of the LRA provides that if an employee is discriminated against and is dismissed based on religion, among other grounds, such a dismissal will be deemed to be an automatically unfair dismissal. Section 6(1) of the EEA prohibits unfair discrimination, whether direct or indirect, in any employment policy or practice based on prohibited grounds such as religion. It is evident from all the above provisions that the right to freedom of religion is vital to people’s lives, including employees’ lives.Although an employee has the right to practise religion, he or she also has the common-law duty to render services or to put his or her labour potential at the disposal of the employer as agreed in terms of the contract of employment – except during the employee’s annual leave, sick leave and maternity leave. An employee may therefore be in breach of this duty if he or she refuses to work or deserts his or her employment or absconds from his or her employment or is absent from work without permission. In addition to the above duty, employees have a duty to serve the employer’s interests and to act in good faith. Often, employees’ right to freedom of religion collides with their duty to render services and to serve the employer’s interests; employees present various reasons related to their religious practices for their failure to render services. As a result, employers are regularly required to be lenient and make efforts to accommodate employees’ religious beliefs in the workplace. At times, this becomes a burden to employers as they have to accommodate employees with diverse individual religious interests, but also ensure that their businesses remain operational. Religion remains one of the most contentious and problematic areas for employees and employers to deal with in the workplace.The discussion that follows evaluates the court’s finding in view of relevant constitutional provisions, labour law legislation and common law. It further considers the position under American law regarding religion and reasonable accommodation in the workplace.

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.

The first edition of 2015 boasts 13 contributions dealing with a variety of topics. The first article, by Ben Coetzee Bester and Anne Louw, discusses the persistence of the "choice argument", which is based on the rationale that domestic partners who choose not to marry cannot claim spousal benefits, and arrives at the conclusion that legislation should differentiate between registered and unregistered domestic partnerships for the purpose of spousal benefits. Ernst Marais has written two articles on expropriation. In the first he examines the meaning and role of state acquisition in South African law and in the second he deals with the distinction between deprivation and expropriation in the light of Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited the distinction between the two concepts and held that the distinguishing feature of expropriation is that it entails state acquisition of property, whilst deprivation takes place where there is no such acquisition. The fourth article, by Emeka Amechi, explores the measures taken by the National Recordal System and Disclosure of Origins in leveraging traditional knowledge within the structure, content and conceptual framework of the patent system in South Africa. The South African Companies Act and the realization of corporate human rights responsibilities is the focus of Manson Gwanyanya's article. He comes to the conclusion that the wording of the Act is such that it prevent human rights abuses by companies. In her contribution Melanie Murcott discusses the development of the doctrine of legitimate expectations in South African law and the failure of the Constitutional Court to develop the doctrine even further in the recent case of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal. The second last article, which is by Lucyline Murungi, considers the implementation of the UN Convention on the Rights of Persons with Disabilities (2006) to provide for inclusive basic education in South Africa, and the last article, which is by Matome Ratiba, examines the significance of places of worship for Native Americans and demonstrates the valuable lessons South Africa could learn from the earth jurisprudence that has developed in the USA and elsewhere. The first note, authored by Magdaleen Swanepoel, discusses legal issues with regard to mentally ill offenders with specific reference to the cases where mental illness is raised as a defence in criminal cases. The second note, by Michelle Fuchs, deals with recent legal developments relating to the formalities involved when a mortgagee wants to declare immovable property executable to satisfy outstanding debt. The last contribution in this edition is a case note by Elmarie Fourie. She considers the question of what constitutes a benefit in terms of section 186(2) of the Labour Relations Act 66 of 1995, which was examined in Apollo Tyres South Africa (Pty)Ltd v CCMA 2013 5 BLLR 434 (LAC).

Section 198 of the Labour Relations Act (hereinafter “LRA”) regulates the employment relationship between a worker (the employee), a labour broker (the employer) and a third party (the client). It also regulates the aspect of liability between the temporary employment service and its client on the one hand in relation to the employee/worker on the other hand. It is with regard to the latter aspect thatthe employee is in a detrimental position as far as the loss of protection against an unfair dismissal as regulated by sections 185 and 186 of the LRA is concerned. The complexity of this kind of relationship is illustrated by means of a case study relating to an unfair dismissal dispute. Legislation regulating the employee’s rights and the employer’s duties upon termination of the contract of employment is also discussed. In conclusion, solutions and recommendations are offered to address the existing areas of concern with regard to section 198(4) and the client’s responsibilities, the interpretation problems within the tripartite employment relationship, as well as the employment contract.

An employment relationship creates certain rights and protection for the respective parties concerned. For example, an employee has the right not to be unfairly dismissed or subjected to unfair labour practices in the execution of his or her duties. On the other hand, an employer has the right to lay down rules in order to regulate the conduct required from its employees. The Code of Good Practice recognises this right of the employer: Dismissal , which requires all employers to adopt disciplinary rules that establish the standard of conduct required from employees. If an employee fails to adhere to the required rules or standards, the employer has recourse in the form of discipline. Disciplinary action is usually initiated in response to poor work performance or unwarranted behaviour by workers and is aimed at restraining employees from behaving in a manner that could hamper production and the functioning of the organisation. When an employer exercises the right to discipline, regard must be had to the employee’s right to be treated fairly. It is therefore important that disciplinary procedures should maintain a proper balance between the rights of the respective parties in the disciplining process.The aim of this note is to compare the procedures for disciplining conventional employees in terms of the LRA with the procedures to discipline magistrates in terms of the Magistrates Act. The purpose of the comparison is to evaluate whether the disciplinary regime applicable to magistrates effectively ensures that they are appropriately and timeously disciplined when necessary in order to ensure a well-functioning judiciary. The note will commence with an outline of the legislative and regulatory framework of the respective disciplinary processes. This will be followed by an evaluation of whether the disciplinary regime governing magistrates contributes to a well-functioning judicial system. The note will conclude with recommendations regarding streamlined processes that would provide role players in the judiciary with certainty about the applicable remedies and the appropriate dispute resolution institutions where their disputes may be resolved.

Section 197 of the Labour Relations Act 66 of 1995 provides that where an employer transfers the whole or part of a business, trade, undertaking or service to another employer as a going concern, the contract of employment and other obligations are transferred to the new employer. This means that the new employer is substituted for the old employer. In the light of pertinent case law in this regard, it is generally accepted that section 197 also applies to first-generation outsourcing of work. In this case, the employees performing the work or service being outsourced are absorbed by the contracted party, now the new employer. However, uncertainty still prevails as to whether the application of this provision may be extended to a secondary contractor who takes over the outsourced work after the expiry or termination of the first contactor’s contract. The question persists whether or not a section 197 transfer occurs when a new contractor is appointed (second-generation outsourcing). If it does apply, how is the longevity of such an application to be determined? With the aid of case law, this article seeks to investigate these questions and the potential imbalance created by the way in which the courts have interpreted the application of this section.

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’. The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

The circumstances under which an employer may dismiss an employee for misconduct are clearly stated in item 3(5) of the Code of Good Practice: Dismissal contained in Schedule 8 of the Labour Relations Act 66 of 1995. It provides that a decision to dismiss an employee for misconduct necessitates an interrogation of a number of competing factors including the gravity of the misconduct; the circumstances of the infringement; the nature of the job performed by the employee; and the employee’s circumstances (which include length of service, previous disciplinary record and personal circumstances). In this note, the author peruses some of the recent cases which have attempted to balance these competing interests to achieve fairness between the parties.

The Labour Relations Act 66 of 1995 provides for three grounds of dismissal in the form of misconduct, incapacity and the employer’s operational reasons. Even though these grounds are distinct from one another, there are instances where one case of dismissal may fit under more than one of these grounds. The difference between these grounds is not always found in the fact that misconduct is accompanied by an element of fault from the employee’s side, while generally incapacity and operational requirements are not. This has in certain instances, correctly or incorrectly, led to most cases that have the potential of affecting an employer’s operations, either directly or indirectly, being dealt with as dismissals for operational requirements. This begs two questions: whether operational requirements has become an easy-to-use ground for most dismissals; and whether it has always been the intention of the legislature that the three grounds of dismissal should not be applied rigidly.

One is constantly reminded not to emulate the criminal courts when conducting disciplinary enquiries, nor, for that matter, labour dispute resolution arbitrations.The locus classicus dealing with the appropriate manner to conduct disciplinary enquiries is the Avril Elizabeth Home for the Mentally Handicapped v CCMA ([2006] 9 BLLR 833 (LC)) case. It was in this case, which has been quoted and followed innumerable times (a significant recent case being that of BEMAWU v SABC [2016] ZALCJHB 74 (2 March 2016)), that the court emphasised item 4(1) of the Code of Good Practice: Dismissal (Schedule 8, Labour Relations Act 66 of 1995) which provides that there does not have to be a formal disciplinary enquiry. The court indicated that the approach outlined in the code was a “significant and fundamental” departure from the criminal justice model, which “likened a workplace disciplinary enquiry to a criminal trial”.It is also, however well-established that arbitrators, and disciplinary chairpersons, must follow basic rules of fair procedure and evidence.This tension between avoiding over-formality while remaining true to basic rules of evidence and procedure is again evident in a recent case (Minister of Police v RM M Safety and Security Sectoral Bargaining Council (2017) 38 ILJ 402 (LC)), which deals with the proper manner to treat hearsay evidence in a labour dispute resolution arbitration.The case sends the message that if the proceedings of a disciplinary enquiry are conducted with a relatively high degree of formality, and fairly scrupulous adherence to what might be described as the criminal justice model – then one might be able to create a prima facie case against the dismissed employee at the de novo arbitration hearing while avoiding the re-calling of the witnesses – and instead by simply tendering the (hearsay) record of the disciplinary proceedings. The case also contributes to the jurisprudence seeking to protect (such as children, in casu) by canvassing means by which such witnesses may be spared having to repeatedly testify to traumatic events.

Access to information promotes values of transparency, openness, and accountability that are important for a progressive constitutional democracy. Section 32(1) of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”) provides that “everyone has the right of access to information held by the state or by another person that is required for the exercise or protection of any rights”. It is submitted that the word “everyone” in this provision, includes trade unions and employees and that the words “another person” in the provision include employers. Employees and their trade unions, therefore, have the right of access to information that the employer has, which may be required for the exercise or protection of their rights. Section 32(2) of the Constitution, further provides that “legislation may be enacted to give effect to this right”. The Promotion of Access to Information Act (2 of 2000 (PAIA)) gives effect to the right of access to information in general, however, for purposes of this discussion, the Labour Relations Act (66 of 1995 (LRA)) gives effect to the right through a number of provisions; including its sections 16 and 189. While section 16 requires the employer to disclose to a representative trade union all relevant information that will enable trade union representatives to effectively perform functions, which are listed in section 14(4); section 189 regulates the disclosure of information in the context of dismissals based on operational reasons of the employer.The above is in line with the International Labour Organisation’s (ILO) Collective Bargaining Standards Recommendation 163 (1981) which provides that “measures adapted to national conditions should be taken, if necessary so that parties have access to the information required by meaningful negotiation”. Section 23(5) of the Constitution grants every trade union a right to engage in collective bargaining. This right is protected and supported through provisions mentioned above which permit trade unions to request relevant information, which is important for the effective exercise of the right. This, however, has often proved to be problematic; largely due to the fact that on the one hand, trade unions need information, while on the other hand, employers sometimes regard this as an invasion of privacy. Employers often refuse to divulge information requested by trade unions as they think that the disclosure of information will also negatively affect their bargaining power or that sensitive information may get to competitors and jeopardize their business. Business South Africa (BUSA) raised concerns regarding the right to disclosure of information in its submissions to the National Economic Development and Labour Council (NEDLAC) during the drafting of the LRA as it regarded the obligation to disclose information to trade unions as a threat and an encroachment into management prerogatives. This argument was largely based on commercial secrecy; confidentiality and that disclosure of information would impede effective decision-making.In view thereof, it is important that there be a balance between the right of trade unions to information and the employer’s duty to disclose the information. This analysis will consider the relevant provisions of the LRA that grant trade unions the right to information and employers’ duty to disclose the information, to determine the balance between the interests of trade unions and employers regarding disclosure of information. It will also look at the position in the United Kingdom (UK) in order to determine whether there are lessons to be learned for South Africa.

BASTARDYAll children born before matrimony, or so long after the death of the husband as to render it impossible that the child could be begotten by him, are bastards.– Cro. Jac. 451William Toone: The Magistrates Manual, 1817 (66)On 4 September 1832, the body of a newborn baby boy was found washed up on the shore at the port town of Fremantle, Western Australia. As the result of an inquest into the child’s suspicious death, a 20-year-old, unmarried woman named Mary Summerland was accused of concealing his birth. In October 2014, 25-year-old Irish backpacker Caroline Quinn faced court in Perth, Western Australia, over claims that she concealed the birth of her stillborn child after giving birth in the remote north west town of Halls Creek during May of the same year. Both women denied the existence of their children, both appear to have given birth to their “illegitimate” babies alone, and both women claimed that they did not know that they had ever been pregnant at all. In addition, both women hid the body of their dead child for several days while the people they lived with or were close to, did not appear to notice that the mother of the child had had a baby. In neither case did any person associated with either woman seek to look for the missing child after it had been born.Despite occurring 182 years apart, the striking similarities between these cases could lead to the assumption that it is almost as if there were a written script of behaviour that would explain the actions of both young women. Close examination of the laws surrounding child murder, infanticide and concealment of birth reveals evidence of similar behaviours being enacted by women as far back as the 1600s (and earlier), and all are shaped in response to the legal frameworks that prosecuted women who gave birth outside of marriage.This article traces the history of child murder law from its formation in England in the 1600s and explores how early moral assumptions concerning unmarried mothers echoed through the lived experiences of women who killed their illegitimate babies in colonial Western Australia, and continue to resonate in the treatment of, and legal response to, women accused of similar crimes in the present day. The Unlicensed ChildThe unlicensed child is a term coined by Swain and Howe to more accurately define the social matrix faced by single women and their children in Australia. The term seeks to emphasise the repressive and controlling religious, legal and social pressures that acted on Australian women who had children outside marriage until the mid-1970s (xxi, 1, 92, 94). For the purposes of this article, I extend Swain and Howe’s term the unlicensed child to coin the term the unlicensed mother. Following on from Swain and Howe’s definition, if the children of unmarried mothers did not have a license to be born, it is essential to acknowledge that their mothers did not have a license to give birth. Women who had children without social and legal sanction gave birth within a society that did not allocate them “permission” to be mothers, something that the corporeality of pregnancy made it impossible for them not to be. Their own bodies—and the bodies of the babies growing inside them—betrayed them. Unlicensed mothers were punished socially, religiously, legally and financially, and their children were considered sinful and inferior to children who had married parents simply because they had been born (Scheper-Hughes 410). This unspoken lack of authorisation to experience the unavoidably innate physicality of pregnancy, birth and motherhood, in turn implies that, until recently unmarried mothers did not have license to be mothers. Two MothersAll that remains of the “case” of Mary Summerland is a file archived at the State Records Office of Western Australia under the title CONS 3472, Item 10: Rex V Mary Summerland. Yet revealed within those sparse documents is a story echoed by the events surrounding Caroline Quinn nearly two hundred years later. In September 1832, Mary Summerland was an unmarried domestic servant living and working in Fremantle when the body of a baby was found lying on a beach very close to the settlement. Western Australia had only been colonized by the British in 1829. The discovery of the body of an infant in such a tiny village (colonial Fremantle had a population of only 436 women and girls out of 1341 non-Aboriginal emigrants) (Gardiner) set in motion an inquest that resulted in Mary Summerland being investigated over the suspicious death of the child.The records suggest that Mary may have given birth, apparently alone, over a week prior to the corpse of the baby being discovered, yet no one in Fremantle, including her employer and her family, appeared to have noticed that Mary might have been pregnant, or that she had given birth to a child. When Mary Summerland was eventually accused of giving birth to the baby, she strongly denied that she had ever been pregnant, and denied being the mother of the child. It is not known how her infant ended up being disposed of in the ocean. It is also not known if Mary was eventually charged with concealment or child murder, but in either scenario, the case against her was dismissed as “no true bill” when she faced her trial. The details publically available on the case of Caroline Quinn are also sparse. Even the sex of her child has not been revealed in any of the media coverage of the event. Yet examination of the limited details available on her charge of “concealment of birth” reveal similarities between her behaviours and those of Mary Summerland.In May 2014 Caroline Quinn had been “travelling with friends in the Kimberly region of Western Australia” (Lee), and, just as Mary did, Caroline claims she “did not realise that she was pregnant” when she went into labour (Independent.ie). She appears, like Mary Summerland, to have given birth alone, and also like Mary, when her child died due to unexplained circumstances she hid the corpse for several days. Also echoing Mary’s story, no person in the sparsely populated Hall’s Creek community (the town has a populace of 1,211) or any friends in Caroline’s circle of acquaintances appears to have noticed her pregnancy, nor did they realise that she had given birth to a baby until the body of the child was discovered hidden in a hotel room several days after her or his birth. The media records are unclear as to whether Caroline revealed her condition to her friends or whether they “discovered” the body without her assistance. The case was not brought to the attention of authorities until Caroline’s friends took her to receive medical attention at the local hospital and staff there notified the police.Media coverage of the death of Caroline Quinn’s baby suggests her child was stillborn or died soon after birth. As of 13 August 2014 Caroline was granted leave by the Chief Magistrate to return home to Ireland while she awaited her trial, as “without trivialising the matter, nothing more serious was alleged than the concealing of the birth” (Collins, "Irish Woman"). Caroline Quinn was not required to return to Australia to appear at her trial and when the case was presented at the Perth Magistrates Court on Thursday 2 October, all charges against her were dropped as the prosecutor felt “it was not in the public interest” to proceed with legal action (Collins, "Case").Statutory MarginalisationTo understand the similarities between the behaviours of, and legal and medical response to, Mary Summerland and Caroline Quinn, it is important to situate the deaths of their children within the wider context of child murder, concealment of birth and “bastardy” law. Tracing the development of these methods of law-making clarifies the parallels between much of the child murder, infanticide and concealment of birth narrative that has occurred in Western Australia since non-Aboriginal settlement.Despite the isolated nature of Western Australia, the nearly 400 years since the law was formed in England, and the extremely remote rural locations where both these women lived and worked, their stories are remarkably alike. It is almost as if there were a written script and each member of the cast knew what role to play: both Mary and Caroline knew to hide their pregnancies, to deny the overwhelmingly traumatic experience of giving birth alone, and to conceal the corpses of their babies. The fathers of their children appear to have cut off any connection to the women or their child. The family, friends, or employers of the parents of the dead babies knew to pretend that they did not know that the mother was pregnant or who the father was. The police and medical officers knew to charge these women and to collect evidence that could be used to simultaneously meet the needs of the both prosecution and the defence when the cases were brought to trial.In reference to Mary Summerland’s case, in colonial Western Australia when a woman gave birth to an infant who died under suspicious circumstances, she could be prosecuted with two charges: “child murder” and/or “concealment of birth”. It is suggestive that Mary may have been charged with both. The laws regarding these two offences were focused almost exclusively on the deaths of unlicensed children and were so deeply interconnected they are difficult to untangle. For Probyn, shame pierces the centre of who we think we are, “what makes it remarkable is that it reveals with precision our values, hopes and aspirations, beyond the generalities of good manners and cultured norms” (x). Dipping into the streams of legal and medical discourse that flow back to the seventeenth century highlights the pervasiveness of discourses marginalising single women and their children. This situates Mary Summerland and Caroline Quinn within a ‘burden on society’ narrative of guilt, blame and shame that has been in circulation for over 500 years, and continues to resonate in the present (Coull).An Act to Prevent the Destroying and Murthering of Bastard ChildrenIn England prior to the 17th century, penalties for extramarital sex, the birth and/or maintenance of unlicensed children or for committing child murder were expressed through church courts (Damme 2-6; Rapaport 548; Butler 61; Hoffer and Hull 3-4). Discussion of how the punishment of child murder left the religious sphere and came to be regulated by secular laws that were focused exclusively on the unlicensed mother points to two main arguments: firstly, the patriarchal response to unlicensed (particularly female) sexuality; and secondly, a moral panic regarding a perceived rise in unlicensed pregnancies in women of the lower classes, and the resulting financial burden placed on local parishes to support unwanted, unlicensed children (Rapaport 532, 48-52; McMahon XVII, 126-29; Osborne 49; Meyer 3-8 of 14). In many respects, as Meyer suggests, “the legal system subtly encouraged neonaticide through its nearly universally negative treatment of bastard children” (240).The first of these “personal control laws” (Hoffer and Hull 13) was the Old Poor Law created by Henry VIII in 1533, and put in place to regulate all members of English society who needed to rely on the financial assistance of the parish to survive. Prior to 1533, “by custom the children of the rich depended on their relations, while the ‘fatherless poor’ relied on the charity of the monastic institutions and the municipalities” (Teichman 60-61). Its implementation marks the historical point where the state began to take responsibility for maintenance of the poor away from the church by holding communities responsible for “the problem of destitution” (Teichman 60-61; Meyer 243).The establishment of the poor law system of relief created a hierarchy of poverty in which some poor people, such as those suffering from sickness or those who were old, were seen as worthy of receiving support, while others, who were destitute as a result of “debauchery” or other self-inflicted means were seen as undeserving and sent to a house of correction or common gaol. Underprivileged, unlicensed mothers and their children were seen to be part of the category of recipients unfit for help (Jackson 31). Burdens on SocietyIt was in response to the narrative of poor unlicensed women and their children being undeserving fiscal burdens on law abiding, financially stretched community members that in 1576 a law targeted specifically at holding genetic parents responsible for the financial maintenance of unlicensed children entered the secular courts for the first time. Called the Elizabethan Poor Law it was enacted in response to the concerns of local parishes who felt that, due to the expenses exacted by the poor laws, they were being burdened with the care of a greatly increased number of unlicensed children (Jackson 30; Meyer 5-6; Teichman 61). While the 1576 legislation prosecuted both parents of unlicensed children, McMahon interprets the law as being created in response to a blend of moral and economic forces, undergirded by a deep, collective fear of illegitimacy (McMahon 128). By the 1570s “unwed mothers were routinely whipped and sent to prison” (Meyer 242) and “guardians of the poor” could force unlicensed mothers to wear a “badge” (Teichman 63). Yet surprisingly, while parishes felt that numbers of unlicensed children were increasing, no concomitant rise was actually recorded (McMahon 128).The most damning evidence of the failure of this law, was the surging incidence of infanticide following its implementation (Rapaport 548-49; Hoffer and Hull 11-13). After 1576 the number of women prosecuted for infanticide increased by 225 percent. Convictions resulting in unlicensed mothers being executed also rose (Meyer 246; Hoffer and Hull 8, 18).Infanticide IncreasesBy 1624 the level of infanticide in local communities was deemed to be so great An Act to Prevent the Destroying and Murthering of Bastard Children was created. The Act made child murder a “sex-specific crime”, focused exclusively on the unlicensed mother, who if found guilty of the offence was punished by death. Probyn suggests that “shame is intimately social” (77) and indeed, the wording of An Act to Prevent highlights the remarkably similar behaviours enacted by single women desperate to avoid the shame and criminal implication linked to the social position of unlicensed mother: Whereas many lewd Women that have been delivered of Bastard Children, to avoyd their shame and to escape punishment [my italics], doe secretlie bury, or conceale the Death of their Children, and after if the child be found dead the said Women doe alleadge that the said Children were borne dead;…For the preventing therefore of this great Mischiefe…if any Woman…be delivered of any issue of the Body, Male or Female, which being born alive, should by the Lawes of this Realm be a bastard, and that she endeavour privatlie either by drowning or secret burying thereof, or any other way, either by herselfe of the procuring of others, soe to conceale the Death thereof, as that it may not come to light, whether it be borne alive or not, but be concealed, in every such Case the Mother so offending shall suffer Death… (Davies 214; O'Donovan 259; Law Reform Commission of Western Australia 104; Osborne 49; Rose 1-2; Rapaport 548). An Act to Prevent also “contained an extraordinary provision which was a reversion of the ordinary common law presumption of dead birth” (Davies 214), removing the burden of proof from the prosecution and placing it on the defence (Francus 133; McMahon 128; Meyer 2 of 14). The implication being that if the dead body of a newborn, unlicensed baby was found hidden, it was automatically assumed that the child had been murdered by their mother (Law Reform Commission of Western Australia 104; Osborne 49; Rapaport 549-50; Francus 133). This made the Act unusual in that “the offence involved was the concealment of death rather than the death itself” (O'Donovan 259). The only way an unlicensed mother charged with child murder was able to avoid capital punishment was to produce at least one witness to give evidence that the child was “borne dead” (Law Reform Commission of Western Australia 104; Meyer 238; McMahon 126-27).Remarkable SimilaritiesClearly, the objective of An Act to Prevent was not simply to preserve infant life. It is suggestive that it was enacted in response to women wishing to avoid the legal, social, corporal and religious punishment highlighted by the implementation of the poor law legislation enacted throughout earlier centuries. It is also suggestive that these pressures were so powerful that threat of death if found guilty of killing their neonate baby was not enough to deter women from concealing their unlicensed pregnancies and committing child murder. Strikingly analogous to the behaviours of Mary Summerland in 19th century colonial Western Australia, and Caroline Quinn in 2014, the self-preservation implicit in the “strategies of secrecy” (Gowing 87) surrounding unlicensed birth and child murder often left the mother of a dead baby as the only witness to her baby’s death (McMahon xvii 49-50).An Act to Prevent set in motion the legislation that was eventually used to prosecute Mary Summerland in colonial Western Australia (Jackson 7, Davies, 213) and remnants of it still linger in the present where they have been incorporated into the ‘concealment of birth law’ that prosecuted Caroline Quinn (Legal Online TLA [10.1.182]).Changing the ‘Script’Shame runs like a viral code through the centuries to resonate within the legal response to women who committed infanticide in colonial Western Australia. It continues on through the behaviours of, and legal responses to, the story of Caroline Quinn and her child. As Probyn observes, “shame reminds us about the promises we keep to ourselves” in turn revealing our desire for belonging and elements of our deepest fears (p. x). While Caroline may live in a society that no longer outwardly condemns women who give birth outside of marriage, it is fascinating that the suite of behaviours manifested in response to her pregnancy and the birth of her child—by herself, her friends, and the wider community—can be linked to the narratives surrounding the formation of “child murder” and “concealment” law nearly 400 years earlier. Caroline’s narrative also encompasses similar behaviours enacted by Mary Summerland in 1832, in particular that Caroline knew to say that her child was “born dead” and that she had merely concealed her or his body—nothing more. This behaviour appears to have secured the release of both women as although both Mary and Caroline faced criminal investigation, neither was convicted of any crime. Yet, neither of these women or their small communities were alone in their responses. My research has uncovered 55 cases linked to child murder in Western Australia and the people involved in all of these incidences share unusually similar behaviours (Gardiner). Perhaps, it is only through the wider community becoming aware of the resonance of child murder law echoing through the centuries, that certain women who are pregnant with unwanted children will be able to write a different script for themselves, and their “unlicensed” children. ReferencesButler, Sara, M. "A Case of Indifference? Child Murder in Later Medieval England." Journal of Women's History 19.4 (2007): 59-82. Collins, Padraig. "Case against Irish Woman for Concealing Birth Dropped." The Irish Times 2 Oct. 2014. ---. "Irish Woman Held for Hiding Birth in Australia Allowed Return Home." The Irish Times 13 Aug. 2014. 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"Secret Births and Infanticide in Seventeenth-Century England." Past & Present 156 (1997): 87-115. Hoffer, Peter C., and N.E.H. Hull. Murdering Mothers: Infanticide in England and New England 1558-1803. New York: New York University Press, 1984. Independent.ie. "Irish Woman Facing Up to Two Years in Jail for Concealing Death of Her Baby in Australia." 8 Aug. 2014. Law Reform Commission of Western Australia. "Chapter 3: Manslaughter and Other Homicide Offences." Review of the Law of Homicide: Final Report. Perth: Law Reform Commission of Western Australia, 2007. 85-117.Lee, Sally. "Irish Backpacker Charged over the Death of a Baby She Gave Birth to While Travelling in the Australia [sic] Outback." Daily Mail 8 Aug. 2014. Legal Online. "The Laws of Australia." Thomson Reuters 2010. McMahon, Vanessa. Murder in Shakespeare's England. London: Hambledon and London, 2004. Meyer, Jon'a. 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Illegitimacy: An Examination of Bastardy. Oxford: Cornell University Press, 1982. Toone, William. The Magistrate's Manual: Or a Summary of the Duties and Powers of a Justice of the Peace. 2nd ed. London: Joseph Butterworth and Son, 1817.

IntroductionThree broad stages of Australia’s arts and culture sectors may be discerned with reference to the Northern Hemisphere. The first is in Australia’s early years where artists travelled to the metropoles of Europe to learn from acknowledged masters, to view the great works and to become part of a broader cultural scene. The second is where Australian art was promoted internationally, which to some extent began in the 1960s with exhibitions such as the 1961 ‘Survey of recent Australian painting’ at the Whitechapel gallery. The third relates to the strong promotion and push to display and sell Indigenous art, which has been a key area of focus since the 1970s.The Allure of the NorthFor a long time Australasian artists have mostly travelled to Britain (Britain) or Europe (Cooper; Frost; Inkson and Carr), be they writers, painters or musicians for example. Hecq (36) provides a useful overview of the various periods of expatriation from Australia, referring to the first significant phase at the end of the twentieth century when many painters left “to complete their atelier instruction in Paris and London”. Many writers also left for the north during this time, with a number of women travelling overseas on account of “intellectual pressures as well as intellectual isolation”(Hecq 36). Among these, Miles Franklin left Australia in “an open act of rebellion against the repressive environment of her family and colonial culture” (37). There also existed “a belief that ‘there’ is better than ‘here’” (de Groen vii) as well as a “search for the ideal” (viii). World War I led to stronger Anglo-Australian relations hence an increase in expatriation to Europe and Britain as well as longer-term sojourns. These increased further in the wake of World War II. Hecq describes how for many artists, there was significant discontent with Australian provincialism and narrow-mindedness, as well as a desire for wider audiences and international recognition. Further, Hecq describes how Europe became something of a “dreamland”, with numerous artists influenced by their childhood readings about this part of the world and a sense of the imaginary or the “other”. This sense of a dream is described beautifully by McAuliffe (56), who refers to the 1898 painting by A.J. Daplyn as a “melancholic diagram of the nineteenth-century Australian artist’s world, tempering the shimmering allure of those northern lights with the shadowy, somnolent isolation of the south”.Figure 1: The Australian Artist’s Dream of Europe; A.J. Daplyn, 1898 (oil on canvas; courtesy artnet.com)In ‘Some Other Dream’, de Groen presents a series of interviews with expatriate Australian artists and writers as an insight into what drove each to look north and to leave Australia, either temporarily or permanently. Here are a few examples:Janet Alderson: “I desperately wanted to see what was going on” (2)Robert Jacks: “the dream of something else. New York is a dream for lots of people” (21)Bruce Latimer: “I’d always been interested in America, New York in particular” (34)Jeffrey Smart: “Australia seemed to be very dull and isolated, and Italy seemed to be thrilling and modern” (50)Clement Meadmore: “I never had much to do with what was happening in Melbourne: I was never accepted there” (66)Stelarc: “I was interested in traditional Japanese art and the philosophy of Zen” (80)Robert Hughes: “I’d written everything that I’d wanted to write about Australian art and this really dread prospect was looming up of staying in Australia for the rest of one’s life” (128)Max Hutchison: “I quickly realised that Melbourne was a non-art consuming city” (158)John Stringer: “I was not getting the latitude that I wanted at the National Gallery [in Australia] … the prospects of doing other good shows seemed rather slim” (178)As the testimony here suggests, the allure of the north ranges from dissatisfaction with the south to the attraction of various parts of the world in the north.More recently, McAuliffe describes a shift in the impact of the overseas experience for many artists. Describing them as business travellers, he refers to the fact that artists today travel to meet international art dealers and to participate in exhibitions, art fairs and the like. Further, he argues that the risk today lies in “disorientation and distraction rather than provincial timidity” (McAuliffe 56). That is, given the ease and relatively cheap costs of international travel, McAuliffe argues that the challenge is in adapting to constantly changing circumstances, rather than what are now arguably dated concepts of cultural cringe or tyranny of distance. Further, given the combination of “cultural nationalism, social cosmopolitanism and information technology”, McAuliffe (58) argues that the need to expatriate is no longer a requirement for success.Australian Art Struggles InternationallyThe struggles for Australian art as a sector to succeed internationally, particularly in Britain, Europe and the US, are well documented (Frost; Robertson). This is largely due to Australia’s limited history of white settlement and established canon of great art works, the fact that power and position remain strong hence the dominance of Europe and North America in the creative arts field (Bourdieu), as well as Australia’s geographical isolation from the major art centres of the world, with Heartney (63) describing the “persistent sense of isolation of the Australian art world”. While Australia has had considerable success internationally in terms of its popular music (e.g. INXS, Kylie Minogue, The Seekers) and high-profile Hollywood actors (e.g. Geoffrey Rush, Hugh Jackman, Nicole Kidman), the visual arts in particular have struggled (O’Sullivan), including the Indigenous visual arts subsector (Stone). One of the constant criticisms in the visual art world is that Australian art is too focussed on place (e.g. the Australian outback) and not global art movements and trends (Robertson). While on the one hand he argues that Australian visual artists have made some inroads and successes in the international market, McAuliffe (63) tempers this with the following observation:Australian artists don’t operate at the white-hot heart of the international art market: there are no astronomical prices and hotly contested bidding wars. International museums acquire Australian art only rarely, and many an international survey exhibition goes by with no Australian representation.The Push to Sell Australian Cultural Product in the NorthWriting in the mid-nineties at the time of the release of the national cultural policy Creative Nation, the then prime minister Paul Keating identified a need for Australia as a nation to become more competitive internationally in terms of cultural exports. This is a theme that continues today. Recent decades have seen several attempts to promote Australian visual art overseas and in particular Indigenous art; this has come with mixed success. However, there have been misconceptions in the past and hence numerous challenges associated with promoting and selling Aboriginal art in international markets (Wright). One of the problems is that a lot of Europeans “have often seen bad examples of Aboriginal Art” (Anonymous 69) and it is typically the art work which travels north, less so the Indigenous artists who create them and who can talk to them and engage with audiences. At the same time, the Indigenous art sector remains a major contributor to the Australian art economy (Australia Council). While there are some examples of successful Australian art managers operating galleries overseas in such places as London and in the US (Anonymous-b), these are limited and many have had to struggle to gain recognition for their artists’ works.Throsby refers to the well-established fact that the international art market predominantly resides in the US and in Europe (including Britain). Further, Throsby (64) argues that breaking into this market “is a daunting task requiring resources, perseverance, a quality product, and a good deal of luck”. Referring specifically to Indigenous Australian art, Throsby (65) reveals how leading European fairs such as those at Basel and Cologne, displaying breath-taking ignorance if not outright stupidity, have vetoed Aboriginal works on the grounds that they are folk art. This saga continues to the present day, and it still remains to be seen whether these fairs will eventually wake up to themselves.It is also presented in an issue of Artlink that the “challenge is to convince European buyers of the value of Australian art, even though the work is comparatively inexpensive” (Anonymous 69). Is the Rite of Passage Relevant in the 21st Century?Some authors challenge the notion that the rite of passage to the northern hemisphere is a requirement for success for an Australian artist (Frost). This challenge is worthy of unpacking in the second decade of the twenty-first century, and particularly so in what is being termed the Asian century (Bice and Sullivan; Wesley). Firstly, Australia is far closer to Asia than it is to Europe and North America. Secondly, the Asian population is expected to continue to experience rapid economic and population growth, for example the rise of the middle class in China, potentially representing new markets for the consumption of creative product. Lee and Lim refer to the rapid economic modernisation and growth in East Asia (Japan to Singapore). Hence, given the struggles that are often experienced by Australian artists and dealers in attempting to break into the art markets of Europe and North America, it may be more constructive to look towards Asia as an alternative north and place for Australian creative product. Fourthly, many Asian countries are investing heavily in their creative industries and creative economy (Kim and Kim; Kong), hence representing an opportune time for Australian creative practitioners to explore new connections and partnerships.In the first half of the twentieth century, Australians felt compelled to travel north to Europe, especially, if they wanted to engage with the great art teachers, galleries and art works. Today, with the impact of technology, engaging with the art world can be achieved much more readily and quickly, through “increasingly transnational forms of cultural production, distribution and consumption” (Rowe et al. 8). This recent wave of technological development has been significant (Guerra and Kagan), in relation to online communication (e.g. skype, email), social media (e.g. Facebook, Twitter) as well as content available on the Web for both informal and formal learning purposes. Artists anywhere in the world can now connect online while also engaging with what is an increasing field of virtual museums and galleries. For example, the Tate Gallery in London has over 70,000 artworks in its online art database which includes significant commentary on each work. While online engagement does not necessarily enable an individual to have the lived experience of a gallery walk-through or to be an audience member at a live performance in an outstanding international venue, online technologies have made it much easier for developing artists to engage from anywhere in the world. This certainly makes the ‘tyranny of distance’ factor relevant to Australia somewhat more manageable.There is also a developing field of research citing the importance of emerging artists displaying enterprising and/or entrepreneurial skills (Bridgstock), in the context of a rapidly changing global arts sector. This broadly refers to the need for artists to have business skills, to be able to seek out and identify opportunities, as well as manage multiple projects and/or various streams of income in what is a very different career type and pathway (Beckman; Bridgstock and Cunningham; Hennekam and Bennett). These opportunity seeking skills and agentic qualities have also been cited as critical in relation to the fact that there is not only a major oversupply of artistic labour globally (Menger), but there is a growing stream of entrants to the global higher education tertiary arts sector that shows no signs of subsiding (Daniel). Concluding RemarksAustralia’s history features a strong relationship with and influences from the north, and in particular from Britain, Europe and North America. This remains the case today, with much of Australian society based on inherited models from Britain, be this in the art world or in such areas as the law and education. As well as a range of cultural and sentimental links with this north, Australia is sometimes considered to be a satellite of European civilisation in the Asia-Pacific region. It is therefore explicable why artists might continue this longstanding relationship with this particular north.In our interesting and complex present of the early twenty-first century, Australia is hampered by the lack of any national cultural policy as well as recent significant cuts to arts funding at the national and state levels (Caust). Nevertheless, there are opportunities to be further explored in relation to the changing patterns of production and consumption of creative content, the impact of new and next technologies, as well as the rise of Asia in the Asian Century. The broad field of the arts and artists is a rich area for ongoing research and inquiry and ultimately, Australia’s links to the north including the concept of the rite of passage deserves ongoing consideration.ReferencesAnonymous a. "Outposts: The Case of the Unofficial Attache." Artlink 18.4 (1998): 69–71.Anonymous b. "Who’s Selling What to Whom: Australian Dealers Taking Australian Art Overseas." Artlink 18. 4 (1998): 66–68.Australia Council for the Arts. Arts Nation: An Overview of Australian Arts. 2015. <http://www.australiacouncil.gov.au/workspace/uploads/files/arts-nation-final-27-feb-54f5f492882da.pdf>.Beckman, Gary D. "'Adventuring' Arts Entrepreneurship Curricula in Higher Education: An Examination of Present Efforts, Obstacles, and Best Practices." The Journal of Arts Management, Law, and Society 37.2 (2007): 87–112.Bice, Sara, and Helen Sullivan. "Abbott Government May Have New Rhetoric, But It’s Still the ‘Asian Century’." The Conversation 2013. <https://theconversation.com/abbott-government-may-have-new-rhetoric-but-its-still-the-asian-century-19769>.Bourdieu, Pierre. Distinction: A Social Critique of the Judgement of Taste. Routledge & Kegan Paul, 1984.Bridgstock, Ruth. "Not a Dirty Word: Arts Entrepreneurship and Higher Education." Arts and Humanities in Higher Education 12.2–3 (2013,): 122–137. doi:10.1177/1474022212465725.———, and Stuart Cunningham. "Creative Labour and Graduate Outcomes: Implications for Higher Education and Cultural Policy." International Journal of Cultural Policy 22.1 (2015): 10–26. doi:10.1080/10286632.2015.1101086.Britain, Ian. Once an Australian: Journeys with Barry Humphries, Clive James, Germaine Greer and Robert Hughes. Oxford: Oxford UP, 1997.Caust, Josephine. "Cultural Wars in an Australian Context: Challenges in Developing a National Cultural Policy." International Journal of Cultural Policy 21.2 (2015): 168–182. doi:10.1080/10286632.2014.890607.Cooper, Roslyn Pesman. "Some Australian Italies." Westerly 39.4 (1994): 95–104.Daniel, Ryan, and Robert Johnstone. "Becoming an Artist: Exploring the Motivations of Undergraduate Students at a Regional Australian University". Studies in Higher Education 42.6 (2017): 1015-1032.De Groen, Geoffrey. Some Other Dream: The Artist the Artworld & the Expatriate. Hale & Iremonger, 1984.Frost, Andrew. "Do Young Australian Artists Really Need to Go Overseas to Mature?" The Guardian, 9 Oct. 2013. <https://www.theguardian.com/culture/australia-culture-blog/2013/oct/09/1https://www.theguardian.com/culture/australia-culture-blog/2013/oct/09/1, July 20, 2016>.Guerra, Paula, and Sacha Kagan, eds. Arts and Creativity: Working on Identity and Difference. Porto: University of Porto, 2016.Heartney, Eleanor. "Identity and Locale: Four Australian Artists." Art in America 97.5 (2009): 63–68.Hecq, Dominique. "'Flying Up for Air: Australian Artists in Exile'." Commonwealth (Dijon) 22.2 (2000): 35–45.Hennekam, Sophie, and Dawn Bennett. "Involuntary Career Transition and Identity within the Artist Population." Personnel Review 45.6 (2016): 1114–1131.Inkson, Kerr, and Stuart C. Carr. "International Talent Flow and Careers: An Australasian Perspective." Australian Journal of Career Development 13.3 (2004): 23–28.Keating, P.J. "Exports from a Creative Nation." Media International Australia 76.1 (1995): 4–6.Kim, Jeong-Gon, and Eunji Kim. "Creative Industries Internationalization Strategies of Selected Countries and Their Policy Implications." KIEP Research Paper. World Economic Update-14–26 (2014). <https://ssrn.com/abstract=2488416>.Kong, Lily. "From Cultural Industries to Creative Industries and Back? Towards Clarifying Theory and Rethinking Policy." Inter-Asia Cultural Studies 15.4 (2014): 593–607.Lee, H., and Lorraine Lim. Cultural Policies in East Asia: Dynamics between the State, Arts and Creative Industries. Springer, 2014.McAuliffe, Chris. "Living the Dream: The Contemporary Australian Artist Abroad." Meanjin 71.3 (2012): 56–61.Menger, Pierre-Michel. "Artistic Labor Markets and Careers." Annual Review of Sociology 25.1 (1999): 541–574.O’Sullivan, Jane. "Why Australian Artists Find It So Hard to Get International Recognition." AFR Magazine, 2016.Robertson, Kate. "Yes, Capon, Australian Artists Have Always Thought about Place." The Conversation, 2014. <https://theconversation.com/yes-capon-australian-artists-have-always-thought-about-place-31690>.Rowe, David, et al. "Transforming Cultures? From Creative Nation to Creative Australia." Media International Australia 158.1 (2016): 6–16. doi:10.1177/1329878X16629544.Stone, Deborah. "Presenters Reject Indigenous Arts." ArtsHub, 2016. <http://www.artshub.com.au/news-article/news/audience-development/deborah-stone/presenters-reject-indigenous-arts-252075?utm_source=ArtsHub+Australia&utm_campaign=7349a419f3-UA-828966-1&utm_medium=email&utm_term=0_2a8ea75e81-7349a419f3-302288158>.Throsby, David. "Get Out There and Sell: The Visual Arts Export Strategy, Past, Present and Future." Artlink 18.4 (1998): 64–65.Wesley, Michael. "In Australia's Third Century after European Settlement, We Must Rethink Our Responses to a New World." The Conversation, 2015. <https://theconversation.com/in-australias-third-century-after-european-settlement-we-must-rethink-our-responses-to-a-new-world-46671>.Wright, Felicity. "Passion, Rich Collectors and the Export Dollar: The Selling of Aboriginal Art Overseas." Artlink 18.4 (1998): 16.

Introduction It has frequently been noted that ICTs and social networking applications have blurred the once-clear boundary between work, leisure and entertainment, just as they have collapsed the distinction between public and private space. While each individual has a sense of what “home” means, both in terms of personal experience and more conceptually, the following three examples of online interaction (based on participants’ interest, or involvement, in activities traditionally associated with the home: pet care, craft and cooking) suggest that the utilisation of online communication technologies can lead to refined and extended definitions of what “home” is. These examples show how online communication can assist in meeting the basic human needs for love, companionship, shelter and food – needs traditionally supplied by the home environment. They also provide individuals with a considerably expanded range of opportunities for personal expression and emotional connection, as well as creative and commercial production, than that provided by the purely physical (and, no doubt, sometimes isolated and isolating) domestic environment. In this way, these case studies demonstrate the interplay and melding of physical and virtual “home” as domestic practices leach from the most private spaces of the physical home into the public space of the Internet (for discussion, see Gorman-Murray, Moss, and Rose). At the same time, online interaction can assert an influence on activity within the physical space of the home, through the sharing of advice about, and modeling of, domestic practices and processes. A Dog’s (Virtual) Life The first case study primarily explores the role of online communities in the formation and expression of affective values and personal identity – as traditionally happens in the domestic environment. Garber described the 1990s as “the decade of the dog” (20), citing a spate of “new anthropomorphic” (22) dog books, Internet “dog chat” sites, remakes of popular classics such as Lassie Come Home, dog friendly urban amenities, and the meteoric rise of services for pampered pets (28-9). Loving pets has become a lifestyle and culture, witnessed and commodified in Pet Superstores as well as in dog collectables and antiques boutiques, and in publications like The Bark (“the New Yorker of Dog Magazines”) and Clean Run, the international agility magazine, Website, online book store and information gateway for agility products and services. Available online resources for dog lovers have similarly increased rapidly during the decade since Garber’s book was published, with the virtual world now catering for serious hobby trainers, exhibitors and professionals as well as the home-based pet lover. At a recent survey, Yahoo Groups – a personal communication portal that facilitates social networking, in this case enabling users to set up electronic mailing lists and Internet forums – boasted just over 9,600 groups servicing dog fanciers and enthusiasts. The list Dogtalk is now an announcement only mailing list, but was a vigorous discussion forum until mid-2006. Members of Dogtalk were Australian-based “clicker-trainers”, serious hobbyist dog trainers, many of whom operated micro-businesses providing dog training or other pet-related services. They shared an online community, but could also engage in “flesh-meets” at seminars, conferences and competitive dog sport meets. An author of this paper (Rutherford) joined this group two years ago because of her interest in clicker training. Clicker training is based on an application of animal learning theory, particularly psychologist E. F. Skinner’s operant conditioning, so called because of the trademark use of a distinctive “click” sound to mark a desired behaviour that is then rewarded. Clicker trainers tend to dismiss anthropomorphic pack theory that positions the human animal as fundamentally opposed to non-human animals and, thus, foster a partnership (rather than a dominator) mode of social and learning relationships. Partnership and nurturance are common themes within the clicker community (as well as in more traditional “home” locations); as is recognising and valuing the specific otherness of other species. Typically, members regard their pets as affective equals or near-equals to the human animals that are recognised members of their kinship networks. A significant function of the episodic biographical narratives and responses posted to this list was thus to affirm and legitimate this intra-specific kinship as part of normative social relationship – a perspective that is not usually validated in the general population. One of the more interesting nexus that evolved within Dogtalk links the narrativisation of the pet in the domestic sphere with the pictorial genre of the family album. Emergent technologies, such as digital cameras together with Web-based image manipulation software and hosting (as provided by portals like Photobucket and Flickr ) democratise high quality image creation and facilitate the sharing of these images. Increasingly, the Dogtalk list linked to images uploaded to free online galleries, discussed digital image composition and aesthetics, and shared technical information about cameras and online image distribution. Much of this cultural production and circulation was concerned with digitally inscribing particular relationships with individual animals into cultural memory: a form of family group biography (for a discussion of the family photograph as a display of extended domestic space, see Rose). The other major non-training thread of the community involves the sharing and witnessing of the trauma suffered due to the illness and loss of pets. While mourning for human family members is supported in the off-line world – with social infrastructure, such as compassionate leave and/or bereavement counselling, part of professional entitlements – public mourning for pets is not similarly supported. Yet, both cultural studies (in its emphasis on cultural memory) and trauma theory have highlighted the importance of social witnessing, whereby traumatic memories must be narratively integrated into memory and legitimised by the presence of a witness in order to loosen their debilitating hold (Felman and Laub 57). Postings on the progress of a beloved animal’s illness or other misfortune and death were thus witnessed and affirmed by other Dogtalk list members – the sick or deceased pet becoming, in the process, a feature of community memory, not simply an individual loss. In terms of such biographical narratives, memory and history are not identical: “Any memories capable of being formed, retained or articulated by an individual are always a function of socially constituted forms, narratives and relations … Memory is always subject to active social manipulation and revision” (Halbwachs qtd. in Crewe 75). In this way, emergent technologies and social software provide sites, akin to that of physical homes, for family members to process individual memories into cultural memory. Dogzonline, the Australian Gateway site for purebred dog enthusiasts, has a forum entitled “Rainbow Bridge” devoted to textual and pictorial memorialisation of deceased pet dogs. Dogster hosts the For the Love of Dogs Weblog, in which images and tributes can be posted, and also provides links to other dog oriented Weblogs and Websites. An interesting combination of both therapeutic narrative and the commodification of affect is found in Lightning Strike Pet Loss Support which, while a memorial and support site, also provides links to the emerging profession of pet bereavement counselling and to suppliers of monuments and tributary urns for home or other use. loobylu and Narratives of Everyday Life The second case study focuses on online interactions between craft enthusiasts who are committed to the production of distinctive objects to decorate and provide comfort in the home, often using traditional methods. In the case of some popular craft Weblogs, online conversations about craft are interspersed with, or become secondary to, the narration of details of family life, the exploration of important life events or the recording of personal histories. As in the previous examples, the offering of advice and encouragement, and expressions of empathy and support, often characterise these interactions. The loobylu Weblog was launched in 2001 by illustrator and domestic crafts enthusiast Claire Robertson. Robertson is a toy maker and illustrator based in Melbourne, Australia, whose clients have included prominent publishing houses, magazines and the New York Public Library (Robertson “Recent Client List” online). She has achieved a measure of public recognition: her loobylu Weblog has won awards and been favourably commented upon in the Australian press (see Robertson “Press for loobylu” online). In 2005, an article in The Age placed Robertson in the context of a contemporary “craft revolution”, reporting her view that this “revolution” is in “reaction to mass consumerism” (Atkinson online). The hand-made craft objects featured in Robertson’s Weblogs certainly do suggest engagement with labour-intensive pursuits and the construction of unique objects that reject processes of mass production and consumption. In this context, loobylu is a vehicle for the display and promotion of Robertson’s work as an illustrator and as a craft practitioner. While skills-based, it also, however, promotes a family-centred lifestyle; it advocates the construction by hand of objects designed to enhance the appearance of the family home and the comfort of its inhabitants. Its specific subject matter extends to related aspects of home and family as, in addition to instructions, ideas and patterns for craft, the Weblog features information on commercially available products for home and family, recipes, child rearing advice and links to 27 other craft and other sites (including Nigella Lawson’s, discussed below). The primary member of its target community is clearly the traditional homemaker – the mother – as well as those who may aspire to this role. Robertson does not have the “celebrity” status of Lawson and Jamie Oliver (discussed below), nor has she achieved their market saturation. Indeed, Robertson’s online presence suggests a modest level of engagement that is placed firmly behind other commitments: in February 2007, she announced an indefinite suspension of her blog postings so that she could spend more time with her family (Robertson loobylu 17 February 2007). Yet, like Lawson and Oliver, Robertson has exploited forms of domestic competence traditionally associated with women and the home, and the non-traditional medium of the Internet has been central to her endeavours. The content of the loobylu blog is, unsurprisingly, embedded in, or an accessory to, a unifying running commentary on Robertson’s domestic life as a parent. Miles, who has described Weblogs as “distributed documentaries of the everyday” (66) sums this up neatly: “the weblogs’ governing discursive quality is the manner in which it is embodied within the life world of its author” (67). Landmark family events are narrated on loobylu and some attract deluges of responses: the 19 June 2006 posting announcing the birth of Robertson’s daughter Lily, for example, drew 478 responses; five days later, one describing the difficult circumstances of her birth drew 232 comments. All of these comments are pithy, with many being simple empathetic expressions or brief autobiographically based commentaries on these events. Robertson’s news of her temporary retirement from her blog elicited 176 comments that both supported her decision and also expressed a sense of loss. Frequent exclamation marks attest visually to the emotional intensity of the responses. By narrating aspects of major life events to which the target audience can relate, the postings represent a form of affective mass production and consumption: they are triggers for a collective outpouring of largely homogeneous emotional reaction (joy, in the case of Lily’s birth). As collections of texts, they can be read as auto/biographic records, arranged thematically, that operate at both the individual and the community levels. Readers of the family narratives and the affirming responses to them engage in a form of mass affirmation and consumerism of domestic experience that is easy, immediate, attractive and free of charge. These personal discourses blend fluidly with those of a commercial nature. Some three weeks after loobylu announced the birth of her daughter, Robertson shared on her Weblog news of her mastitis, Lily’s first smile and the family’s favourite television programs at the time, information that many of us would consider to be quite private details of family life. Three days later, she posted a photograph of a sleeping baby with a caption that skilfully (and negatively) links it to her daughter: “Firstly – I should mention that this is not a photo of Lily”. The accompanying text points out that it is a photo of a baby with the “Zaky Infant Sleeping Pillow” and provides a link to the online pregnancystore.com, from which it can be purchased. A quotation from the manufacturer describing the merits of the pillow follows. Robertson then makes a light-hearted comment on her experiences of baby-induced sleep-deprivation, and the possible consequences of possessing the pillow. Comments from readers also similarly alternate between the personal (sharing of experiences) to the commercial (comments on the product itself). One offshoot of loobylu suggests that the original community grew to an extent that it could support specialised groups within its boundaries. A Month of Softies began in November 2004, describing itself as “a group craft project which takes place every month” and an activity that “might give you a sense of community and kinship with other similar minded crafty types across the Internet and around the world” (Robertson A Month of Softies online). Robertson gave each month a particular theme, and readers were invited to upload a photograph of a craft object they had made that fitted the theme, with a caption. These were then included in the site’s gallery, in the order in which they were received. Added to the majority of captions was also a link to the site (often a business) of the creator of the object; another linking of the personal and the commercial in the home-based “cottage industry” sense. From July 2005, A Month of Softies operated through a Flickr site. Participants continued to submit photos of their craft objects (with captions), but also had access to a group photograph pool and public discussion board. This extension simulates (albeit in an entirely visual way) the often home-based physical meetings of craft enthusiasts that in contemporary Australia take the form of knitting, quilting, weaving or other groups. Chatting with, and about, Celebrity Chefs The previous studies have shown how the Internet has broken down many barriers between what could be understood as the separate spheres of emotional (that is, home-based private) and commercial (public) life. The online environment similarly enables the formation and development of fan communities by facilitating communication between those fans and, sometimes, between fans and the objects of their admiration. The term “fan” is used here in the broadest sense, referring to “a person with enduring involvement with some subject or object, often a celebrity, a sport, TV show, etc.” (Thorne and Bruner 52) rather than focusing on the more obsessive and, indeed, more “fanatical” aspects of such involvement, behaviour which is, increasingly understood as a subculture of more variously constituted fandoms (Jenson 9-29). Our specific interest in fandom in relation to this discussion is how, while marketers and consumer behaviourists study online fan communities for clues on how to more successfully market consumer goods and services to these groups (see, for example, Kozinets, “I Want to Believe” 470-5; “Utopian Enterprise” 67-88; Algesheimer et al. 19-34), fans regularly subvert the efforts of those urging consumer consumption to utilise even the most profit-driven Websites for non-commercial home-based and personal activities. While it is obvious that celebrities use the media to promote themselves, a number of contemporary celebrity chefs employ the media to construct and market widely recognisable personas based on their own, often domestically based, life stories. As examples, Jamie Oliver and Nigella Lawson’s printed books and mass periodical articles, television series and other performances across a range of media continuously draw on, elaborate upon, and ultimately construct their own lives as the major theme of these works. In this, these – as many other – celebrity chefs draw upon this revelation of their private lives to lend authenticity to their cooking, to the point where their work (whether cookbook, television show, advertisement or live chat room session with their fans) could be described as “memoir-illustrated-with-recipes” (Brien and Williamson). This generic tendency influences these celebrities’ communities, to the point where a number of Websites devoted to marketing celebrity chefs as product brands also enable their fans to share their own life stories with large readerships. Oliver and Lawson’s official Websites confirm the privileging of autobiographical and biographical information, but vary in tone and approach. Each is, for instance, deliberately gendered (see Hollows’ articles for a rich exploration of gender, Oliver and Lawson). Oliver’s hip, boyish, friendly, almost frantic site includes the what are purported-to-be self-revelatory “Diary” and “About me” sections, a selection of captioned photographs of the chef, his family, friends, co-workers and sponsors, and his Weblog as well as footage streamed “live from Jamie’s phone”. This self-revelation – which includes significant details about Oliver’s childhood and his domestic life with his “lovely girls, Jools [wife Juliette Norton], Poppy and Daisy” – completely blurs the line between private life and the “Jamie Oliver” brand. While such revelation has been normalised in contemporary culture, this practice stands in great contrast to that of renowned chefs and food writers such as Elizabeth David, Julia Child, James Beard and Margaret Fulton, whose work across various media has largely concentrated on food, cooking and writing about cooking. The difference here is because Oliver’s (supposedly private) life is the brand, used to sell “Jamie Oliver restaurant owner and chef”, “Jamie Oliver cookbook author and TV star”, “Jamie Oliver advertising spokesperson for Sainsbury’s supermarket” (from which he earns an estimated £1.2 million annually) (Meller online) and “Jamie Oliver social activist” (made MBE in 2003 after his first Fifteen restaurant initiative, Oliver was named “Most inspiring political figure” in the 2006 Channel 4 Political Awards for his intervention into the provision of nutritious British school lunches) (see biographies by Hildred and Ewbank, and Smith). Lawson’s site has a more refined, feminine appearance and layout and is more mature in presentation and tone, featuring updates on her (private and public) “News” and forthcoming public appearances, a glamorous selection of photographs of herself from the past 20 years, and a series of print and audio interviews. Although Lawson’s children have featured in some of her television programs and her personal misfortunes are well known and regularly commented upon by both herself and journalists (her mother, sister and husband died of cancer) discussions of these tragedies, and other widely known aspects of her private life such as her second marriage to advertising mogul Charles Saatchi, is not as overt as on Oliver’s site, and the user must delve to find it. The use of Lawson’s personal memoir, as sales tool, is thus both present and controlled. This is in keeping with Lawson’s professional experience prior to becoming the “domestic goddess” (Lawson 2000) as an Oxford graduated journalist on the Spectator and deputy literary editor of the Sunday Times. Both Lawson’s and Oliver’s Websites offer readers various ways to interact with them “personally”. Visitors to Oliver’s site can ask him questions and can access a frequently asked question area, while Lawson holds (once monthly, now irregularly) a question and answer forum. In contrast to this information about, and access to, Oliver and Lawson’s lives, neither of their Websites includes many recipes or other food and cooking focussed information – although there is detailed information profiling their significant number of bestselling cookbooks (Oliver has published 8 cookbooks since 1998, Lawson 5 since 1999), DVDs and videos of their television series and one-off programs, and their name branded product lines of domestic kitchenware (Oliver and Lawson) and foodstuffs (Oliver). Instruction on how to purchase these items is also featured. Both these sites, like Robertson’s, provide various online discussion fora, allowing members to comment upon these chefs’ lives and work, and also to connect with each other through posted texts and images. Oliver’s discussion forum section notes “this is the place for you all to chat to each other, exchange recipe ideas and maybe even help each other out with any problems you might have in the kitchen area”. Lawson’s front page listing states: “You will also find a moderated discussion forum, called Your Page, where our registered members can swap ideas and interact with each other”. The community participants around these celebrity chefs can be, as is the case with loobylu, divided into two groups. The first is “foodie (in Robertson’s case, craft) fans” who appear to largely engage with these Websites to gain, and to share, food, cooking and craft-related information. Such fans on Oliver and Lawson’s discussion lists most frequently discuss these chefs’ television programs and books and the recipes presented therein. They test recipes at home and discuss the results achieved, any problems encountered and possible changes. They also post queries and share information about other recipes, ingredients, utensils, techniques, menus and a wide range of food and cookery-related matters. The second group consists of “celebrity fans” who are attracted to the chefs (as to Robertson as craft maker) as personalities. These fans seek and share biographical information about Oliver and Lawson, their activities and their families. These two areas of fan interest (food/cooking/craft and the personal) are not necessarily or always separated, and individuals can be active members of both types of fandoms. Less foodie-orientated users, however (like users of Dogtalk and loobylu), also frequently post their own auto/biographical narratives to these lists. These narratives, albeit often fragmented, may begin with recipes and cooking queries or issues, but veer off into personal stories that possess only minimal or no relationship to culinary matters. These members also return to the boards to discuss their own revealed life stories with others who have commented on these narratives. Although research into this aspect is in its early stages, it appears that the amount of public personal revelation either encouraged, or allowed, is in direct proportion to the “open” friendliness of these sites. More thus are located in Oliver’s and less in Lawson’s, and – as a kind of “control” in this case study, but not otherwise discussed – none in that of Australian chef Neil Perry, whose coolly sophisticated Website perfectly complements Perry’s professional persona as the epitome of the refined, sophisticated and, importantly in this case, unapproachable, high-end restaurant chef. Moreover, non-cuisine related postings are made despite clear directions to the contrary – Lawson’s site stating: “We ask that postings are restricted to topics relating to food, cooking, the kitchen and, of course, Nigella!” and Oliver making the plea, noted above, for participants to keep their discussions “in the kitchen area”. Of course, all such contemporary celebrity chefs are supported by teams of media specialists who selectively construct the lives that these celebrities share with the public and the postings about others’ lives that are allowed to remain on their discussion lists. The intersection of the findings reported above with the earlier case studies suggests, however, that even these most commercially-oriented sites can provide a fruitful data regarding their function as home-like spaces where domestic practices and processes can be refined, and emotional relationships formed and fostered. In Summary As convergence results in what Turow and Kavanaugh call “the wired homestead”, our case studies show that physically home-based domestic interests and practices – what could be called “home truths” – are also contributing to a refiguration of the private/public interplay of domestic activities through online dialogue. In the case of Dogtalk, domestic space is reconstituted through virtual spaces to include new definitions of family and memory. In the case of loobylu, the virtual interaction facilitates a development of craft-based domestic practices within the physical space of the home, thus transforming domestic routines. Jamie Oliver’s and Nigella Lawson’s sites facilitate development of both skills and gendered identities by means of a bi-directional nexus between domestic practices, sites of home labour/identity production and public media spaces. As participants modify and redefine these online communities to best suit their own needs and desires, even if this is contrary to the stated purposes for which the community was instituted, online communities can be seen to be domesticated, but, equally, these modifications demonstrate that the activities and relationships that have traditionally defined the home are not limited to the physical space of the house. While virtual communities are “passage points for collections of common beliefs and practices that united people who were physically separated” (Stone qtd in Jones 19), these interactions can lead to shared beliefs, for example, through advice about pet-keeping, craft and cooking, that can significantly modify practices and routines in the physical home. Acknowledgments An earlier version of this paper was presented at the Association of Internet Researchers’ International Conference, Brisbane, 27-30 September 2006. 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The Wired Homestead: An MIT Press Sourcebook on the Internet and the Family. Cambridge, MA: MIT Press, 2003. Citation reference for this article MLA Style Brien, Donna Lee, Leonie Rutherford, and Rosemary Williamson. "Hearth and Hotmail: The Domestic Sphere as Commodity and Community in Cyberspace." M/C Journal 10.4 (2007). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0708/10-brien.php>. APA Style Brien, D., L. Rutherford, and R. Williamson. (Aug. 2007) "Hearth and Hotmail: The Domestic Sphere as Commodity and Community in Cyberspace," M/C Journal, 10(4). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0708/10-brien.php>.