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THEME ONE - Introductory Concepts
What is Labour Law?
A set of laws that regulate the relationship between the employer and the employee. It is
important to distinguish between individual labour law and collective labour law.
Individual labour law - a set of laws that regulate the relation between the employer and the
employee
Collective labour law - a set of laws that regulate the relationship between employers and
organised labour (ie trade unions)
DEVELOPMENT OF LABOUR LAW: ORIGINS
The roots of labour law are found in common law. A common law contract of employment is
based on the Roman Law locatio conductio, and there are 3 types.
1) Locatio conductio rei - this is the letting or hiring of a specific thing in return for payment of
money.
2) Locatio conductio operis - this is the forerunner of an independent contractor (to be
discussed more under theme 2)
3) Locatio conductio operarum - this is the letting or hiring of personal services in return for
remuneration. An employee provides services on behalf of an employer therefore a contract
of employment stems from this type.
Shortcomings of common law
Labour law is based on the Constitution, Legislation, codes of good practise, case law and a
number of other sources.
1) Modern developments are not put into consideration. For example, the developments in
technology.
2) There is no real recognition of human rights in common law. These are only found in the
Constitution, for example the right to fair labour practises.
3) The traditional principle of freedom of contract is ill suited to modern business. Freedom of
contract implies that each party is allowed to include the terms and conditions if a contract
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which they believe will serve their interests. When looking at the relationship between an
employer and employee, there is inherent inequality between the two.
4) The common law ignores the enduring nature of employment. There is no right to demand
better working conditions or higher remuneration in terms of the common law. When taking a
closer look at the legislation, we see that employers are offered some sort of protection.
5) There is no real means of engaging with management. It is only in terms of legislation where
employees can be assisted by trade unions when communicating with management.
REGULATION OF LABOUR LAW
1) The Constitution
Section 23 states the following:
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right—
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage
in collective bargaining. National legislation may be enacted to regulate collective
bargaining. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
(6) National legislation may recognise union security arrangements contained in
collective agreements. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
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The effect of Section 23 of the Constitution
Section 23 of the Constitution makes mention of the fact that national legislation may be
enacted and it is the Labour Relations Act that was enacted to give effect to Section 23.
Section 9 states that:
(1) Everyone is equal before the law and has the right to equal protection and benefit of
the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.
The effect of Section 9 of the Constitution
As indicated in Section 9 of the Constitution, the section makes mention that legislation and
other measures designed to protect or advance persons or categories of persons
disadvantaged by unfair discrimination may be taken. It also makes mention of the fact that
national legislation must be enacted. Two statutes were promulgated to give effect to Section 9
of the Constitution, these statutes were the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA) 4 of 2000 and the Employment Equity Act (EEA) 55 of 1998.
2) The Statutes
Labour Relations Act 66 of 1995
This Act encourages collective bargaining and the settlement of disputes. It also exists to protect
employees from unfair dismissals and unfair labour practises.
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The Promotion of Equality And Prevention of Unfair Discrimination Act 4 of 2000
This Act is not necessarily relevant to Labour Law however it is discussed because it was
enacted to give effect to Section 9 of the Constitution and Section 9 of the Constitution is
relevant to Labour law. This Act was promulgated to prevent and prohibit unfair discrimination.
This statute and the Employment Equity Act were both enacted to give effect to the Constitution.
The Broad Based Black Economic Employment Act 53 of 2003
This Act was promulgated to establish a legislative framework for the promotion of black
economic empowerment.
Basic Conditions of Employment Act 75 of 1997
This Act makes provision for the fundamental conditions of employment such as working hours
of an employee, sick leave, maternity leave, meal intervals and also includes provisions relating
to shift work or night work. This Act also allows for the creation of the Employment Conditions
Commission charged with advising the Minister and labour inspectors to monitor compliance
with the Act.
Employment Equity Act (EEA) 55 of 1998
This Act aims to eliminate unfair discrimination in the workplace and promotes affirmative action.
Difference between PEPUDA and EEA
Both statutes were enacted to give effect to Section 9 of the Constitution. PEPUDA however does not
apply to anyone who the EEA applies to despite the fact that they both statutes aim to eliminate unfair
discrimination.
The Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of 1993
In the event of injuries, illness or death that occurred as a result of an event at the workplace,
COIDA insures compensation not only for the employees but for the employees dependants.
Unemployment Insurance Act 30 of 1966
This Act makes provisions for benefits to be provided to employees as a result of pregnancy and
other circumstances beyond their control.
The Occupational Health and Safety Act 85 of 1993
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Employers are obligated to provide a reasonably safe working environment to employees
The Skills Development Act 97 of 1998
This Act establishes Sector Education and Training Authorities (SETAs). The Act also
establishes National Skills Authority and Skill Development Planning Units. The main tasks of
SETAs is to establish learnership, to approve workplace skill plans and to allocate grants and
monitor education.
Sources of Labour Law
1) Employment Contract
2) Collective Agreements
3) Constitution
4) Legislation
5) Ministerial Regulations - provisions that will supplement the provisions contained in
legislation
6) Codes of good practice - seen as source of law because they are issued the minister
in terms of legislation and therefore bind employers
7) Sectoral determination - passed by the minister and promulgated specifically for a
specific sector
8) Common law
9) Court precedents/judgements
10) Foreign jurisprudence/ foreign case law
11) International standards - conventions or recommendations by the ILO (International
Labour Organisation)
12) Custom and practise - practise developed over time that is not specifically
mentioned in a contract of employment can also be argued to form part
Forms of disputes
● Disputes of rights - this relates to disputes surrounding facts and the law which normally
concerns legal rights. For example, if a contract of employment prescribes that an employee
must be paid R10 000 a month and the employer then only pays R5 000. This implies that
the employee will have the right to sue for the balance of R5 000. The Labour Relations Act
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prefers that these disputes be determined by means of alternative dispute resolutions
(ADRs) or courts.
● Disputes of interest - this relates to “frustrated wants or perceived needs” . Disputes
surrounding conditions of employment where employees are not necessarily legally entitled
to. For example, if a contract of employment states that employees are to be paid R10 000
and a collective of employees want an increase from that R10 000 to R15 000 (ie this is a
want not a legal right), industrial action is reserved for such matters (ie strikes)
LABOUR DISPUTE RESOLUTIONS
Commission for Conciliation Mediation and Arbitration (CCMA)
The CCMA is independent. It has jurisdiction in all provinces in South Africa and it is prescribed
that the CCMA must have at least one office in each province. The CCMA does not have
jurisdiction over disputes that arise outside of RSA, exceptions are made in situations where
employer operations are conducted in South Africa, in such circumstances the CCMA has
jurisdiction.
Primary functions of the CCMA
1) Resolve disputes
2) Compile and publish information
3) Provide statistics about their activities
4) Assist in the establishment of workplace forums. (Workplace forum is a committee of
employees, elected by employees who will meet on a regular basis to discuss workplace
issues.)
Secondary functions of the CCMA
1) Advise parties with regards to dispute proceedings
2) Assist parties on obtaining legal advise, legal assistance or legal representation
3) Offer to resolve an unreferred dispute via reconciliation
4) Make rules with regards to proceedings of meetings, regulatory practises and procedures of
essential services
5) Publication of relevant guidelines
6) Conduct and public research
7) Acredit other ADR (alternative dispute resolution) service providers
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Resolution of disputes
Conciliation
Once a dispute has been referred to conciliation, a commissioner must be appointed to attemply
to resolve a dispute through reconciliation. The commissioner must attempt to resolve the
dispute within 30 days of the date of referral of the dispute. If conciliation fails or no resolution
takes place after 30 days, the commissioner issues a certificate stating that the matter has not
been resolved.
Arbitration
An arbitrator must be appointed to arbitrate over a dispute if a certificate has been issued, and a
party to the dispute requires arbitration within 90 days after issuing. A late request may be
condoned.
Features of conciliation
Conciliation is a loose informal procedure. Only the parties themselves or officials of the parties
trade unions or various organisations may attend. Conciliation procedures are conducted on a
without-prejudice basis (ie confidential)
Features of arbitration
Arbitration is a more formal structured procedure. Parties are entitled to legal representation
under certain circumstances. The consent of all parties and leave of the arbitrator is required for
a party to be represented by a legal practitioner, however if a party objects, the arbitrator may
still permit legal representation. The arbitrator's rewards are final and binding which implies that
there is no right of appeal but they are subject to review.
Differences between arbitration and court proceedings
1. Court proceedings procedure is determined by court rules.
2. Courts have a right of appeal.
3. Court proceedings are slower and more costly.
4. Court proceedings: right to legal representation.
5. Court proceedings: a magistrate or judge is assigned.
The Labour Court
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The Labour Court is a superior court that has authority and power in relation to matters under its
jurisdiction equal to that which the provincial division of the High Court has in relation to matters
under its jurisdiction. The Labour Court has jurisdiction to hear matters where legislation relates
that such matters should be dealt with by the Labour Court.
The Labour Appeals Court
The Labour Appeals court is a superior court that has authority and power in relation to matters
under its jurisdiction equal to that which the Supreme Court of Appeal has in relation to matters
it has under its juridictions.
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