Lecturer: Ms Daphney Mnisi
CHAPTER 2
THE CONSTITUTION IN GENERAL
• South Africa is a democratic state founded on values such as human dignity,
equality and freedom.
• The Constitution is the supreme law of the country, and any law or conduct which
is inconsistent with the Constitution is invalid.
• This means that all issues of labour law must be considered in the light of the
constitutional principles and the rights contained in the Bill of Rights, more
particularly in relation to section 23 of the Constitution.
• The Bill of Rights, contained in Chapter 2 of the Constitution, applies to all law and
binds the legislature, the executive, the judiciary and all organs of state.
RELEVANT CONSTITUTIONAL RIGHTS FOR LABOUR LAW
• A number of rights contained in the Bill of Rights are potentially relevant for
employment contracts and the workplace. Some of these rights include the
following:
Everyone is equal before the law and has the right to equal protection and
benefit of the law – no person may unfairly discriminate directly or indirectly
against anyone.
Everyone has inherent dignity and the right to have their dignity respected and
protected.
No person may be subjected to slavery, servitude or forced labour.
Everyone has the right, peacefully and unarmed to assemble, to demonstrate,
to picket and to present petitions.
Everyone has the right to freedom of association – that is, the right to form
and join organisations, e.g. trade unions.
Every child has the right to be protected from exploitative labour practices.
• National legislation has been enacted to give effect to many of these rights.
For example, the EEA regulates equality in the workplace.
• Section 23 of the Constitution deals with labour relations and the right to
fair labour practices.
• Legislation, such as the LRA and BCEA give further expression to this
constitutional right.
• NB – when an employee challenges the alleged infringement of a
constitutional right, he or she must firstly seek a remedy provided in national
legislation, e.g. the LRA.
• This is because the Constitution requires Parliament to enact legislation to
give effect to the constitutional rights guaranteed in the Constitution.
Section 23(1): “Everyone has the right to fair labour practices”
• The focus of this section is on the relationship between the employer and the
employee and the continuation of that relationship on terms that are fair to both
parties.
• Although the LRA is the main type of legislation dealing with this provision of the
Constitution, it expressly excludes certain people from it’s provisions.
• The LRA does not apply to members of the South African National Defence Force,
the National Intelligence Agency or the South African Secret Service.
• However, in South African National Defence Union v Minister of Defence, the
Constitutional Court confirmed that members were covered by the constitutional
right to fair labour practices.
Section 23(2)-(6): Freedom of association and collective bargaining
rights
• The rest of the provisions of section 23 of the Constitution provide for
constitutional rights in a collective bargaining environment.
• This means that the rights relate to negotiation between employers and trade
unions.
• The freedom associate allows groups of employees and employers to organise
themselves for the joint purpose of protecting their respective labour rights.
Section 23(2) – every worker has the right to form and join a trade union and the right
to strike.
Section 23(3) – grants employers the right to form and join employers’ organisations.
Section 23(4) – a trade union or employers’ organisations has the right to determine it’s
own programmes and activities.
Section 23(5) – the right to collective bargaining
FREEDOM OF ASSOCIATION
• In National Union of Mineworkers of SA v Bader Bop (Pty) Ltd, the CC held that the
right to freedom of association will be impaired or negatively affected where
workers are not permitted to have their own trade union represent them in the
workplace, but are instead required to be represented by a rival union that they
have not chosen.
• In South African National Defence Force Union v Minister of Defence, the CC
concluded that the freedom of association provisions in section 23(2) that refer to
a “worker” should be interpreted to include members of the SANDF.
• Thus, the freedom of association rights granted to workers in s 23(2) accordingly
apply to members of the SANDF as well.
• However, it is universally accepted that soldiers do not enjoy a constitutional right
to strike.
RIGHT TO STRIKE
• Every worker has the right to strike – that is, the right to withhold his/her labour.
• However the right is not absolute – there are limitations.
• Firstly, it requires it requires a specific procedure to be followed before the right to
strike may be exercised.
• Secondly, there are substantive limitations on the right to strike. For example,
workers are prohibited from striking about certain disputes which have to be
referred to the CCMA for arbitration or adjudication in the Labour Court.
• A typical example relates to an employee who has been dismissed for alleged
misconduct.
NO CONSTITUTIONAL RIGHT TO LOCK-OUT
• A lock-out is the exclusion by an employer of employees from the employer’s
workplace for the purpose of compelling the employees to accept a demand of the
employer.
• A lock-out is accordingly regarded as an employer’s industrial action and the
counterpart to a strike.
• The right to lock-out is not a constitutional right.
• The reason for this is because workers need to strike to provide them with
sufficient power to bargain collectively with employers.
• Whereas employers may exercise a wide range of powers, such as dismissal,
employment of replacement labour, unilateral implementation of new terms and
conditions, and the lock-out.
