Faculty of Law

CHAPTER 24: LABOUR LAW

 LABOUR LAW & THE
CONSTITUTION
 The SA Constitution
 S23 gives everyone the right to fair labour practices & gives every
worker the right to:
• Form & join a trade union
• Participate in the activities & programmes of a trade union
• strike
 S23 gives every employer the right to:
• Form & join an employers’ organisation
• Participate in the activities & programmes of an employers’ organisation
 S9 provides that:
• everyone is equal before the law & has the right to equal protection of the
law
• No person may unfairly discriminate against anyone on any of the listed
grounds, eg: race, age, disability, etc
 S36 provides that:
• All rights in the Constitution can be limited
• Limitation must be reasonable & justifiable based
on human dignity, equality & freedom
• As sex workers and illegal immigrants working
without a permit are regarded as vulnerable
workers, they are also protected under the
Constitution (and labour law) as workers
• Constitution also protects workers who are not
protected by legislation
 South African Labour Law
 Acts that make up our employment law:
• Labour Relations Act (LRA)
• Basic Conditions of Employment Act (BCEA)
• Employment Equity Act (EEA)
• Compensation for Occupational Injuries & Diseases
Act (COIDA)
• Unemployment Insurance Act
• Occupational Health & Safety Act (OHSA)
• Skills Development Act
• Broad-based Black Economic Empowerment Act
 These have codified SA labour law = common law
principles have been included
 WHO IS AN EMPLOYEE?
 LRA does not apply to members of:
• National Defence Force
• State Security Agency

 LRA only applies to employees so it’s NB to know who is

an employee
 Definition of employee:
• Any person who works for another person / for the state
• Any person who receives / is entitled to receive any payment
• Any other person who in any manner assists in the carrying
on the business of employer
 Employee v independent contractors
 Independent contractor = persons working under
a contract for work where they will try to produce a
specified result, eg: painter
 Employees = generally used by the employer for
whatever tasks the employer chooses, eg:
domestic workers
 Sometimes difficult to decide if someone is an
employee or an independent contractor
 Freelance writer = employee vs insurance
salesman/sales agent = independent contractor
 Table of differences on p. 386(3rd ed) p.423(4th ed)
 When is a person presumed to be an employee?

 LRA was amended to create a presumption that a person

is an employee and must be protected ito of the Act if the:
• person earns less than an amount specified by the
minister of labour (R224 080.48) AND any 1 of the
following:
• way in which the person works is subject to the
control or direction of another person
• person works for an organisation, & forms part of
that organisation
• person has worked for the other person for an
average of 40 hours per month for the last 3
months
• person is economically dependant on the person
for whom they work
• person receives the necessary supplies or other
work equipment from the other person in order to
do their work
• person only works for, or provides services to, one
person
 If one of these factors present and worker earns less than
threshold, responsibility shifts to employer to prove that
person is not an employee.
 Presumption: worker is an employee and should receive
protection by the Act.

 When employer brings contract to an end in unfair/unlawful

manner = all employees entitled to protection by the law
PROVIDED there is contract of employment

 s198B: people also presumed to be employees if they earn

under the threshold, been appointed by a labour broker and
placed with a client for more than 3 months, or appointed for
more than 3 months on a fixed term contract.
 LABOUR RELATIONS ACT
 Main aim = put into practice the fundamental constitutional
right to fair labour practices
 Seeks to promote economic development, social justice,
labour peace & the democratisation of the workplace
 Attempts to achieve these aims by allowing employees to
join trade unions & employers to join employers’
organisations = freedom of association
 Provides a framework for parties to bargain together to
decide wages, terms & conditions of employment & other
matters of common interest
 Provides structures to resolve disputes, eg: Commission for
Conciliation, Mediation & Arbitration (CCMA)
Freedom of association
 Every employee has the right to participate in forming a
TU/federation of Tus and to join a TU
 TU: association of employees whose main purpose is to
regulate the relationship between employees and employers
 No person may discriminate an employee for exercising
his/her right to join/form a TU OR discriminate against any
employee for exercising any other right given to employees
by LRA

 Employers have right to form/join an employers’ organisation

 No discrimination against employer for exercising such right
Organisational rights
 Representative trade union = registered trade union that
is sufficiently representative of the employees employed,
ie there must be enough employees who are members of
the union

 Sufficiently representative trade union = 30% of

employees at a workplace = have special rights =
organisational rights:
• Access to the workplace in order to recruit members & hold
meetings
• Deduction of trade union subscription fees / levies if an
employee member authorises the employer in writing to
deduct these fees / levies
• Reasonable leave during working hours for an employee who
is an office-bearer to perform his trade union activities
 Majority representative trade union = 50% + 1 of
employees at a workplace = have extra rights:
• Members may elect trade union representatives to
assist & represent employees in disciplinary /
grievance proceedings
• Trade union is entitled to receive certain
information from the employer so that the
representative can perform his functions effectively,
eg: work records of employees charged with
misconduct
 Disputes about organisational rights must 1st be
conciliated & if not resolved, arbitrated
 Disciplinary proceedings = employee is charged with an
offence
 Grievance proceedings = one worker complains about
the conduct of another employee
 Collective agreements
 One of the main purposes of the LRA is to settle labour
disputes = disagreements btw employment parties
 LRA favours centralised bargaining = groups of
employers & employees enter into a group / collective
agreement to regulate their relationship
 Collective agreement = written agreement that deals
with the terms & conditions of employment / any other
matter of mutual interest to employees & employers
 Is concluded by 1 / more registered trade union &:
• 1 / more employers
• 1 / more registered employers’ organisations
• 1 / more employers & 1 / more registered employers’
organisations
 Disputes re interpretation / application = conciliation, if
fails, arbitration
a) Agency shop agreements
• When a trade union has a majority of the employees
employed as members, they may conclude a special
collective agreement = agency shop agreement
• Concluded with employer / employers’ organisation
• Requires employer to deduct an agreed agency fee
from employees’ wages who have chosen not to be
union members
• Deduction is justified as these workers get all the
benefits of the union’s activities to improve wages &
working conditions
• Money is used to promote / protect the socio-economic
interests of employees
b) Closed shop agreements
• Majority representative trade union can also conclude a
closed shop agreement = requires all employees
covered by agreement to be members of the union
• In order to be binding, all the employees covered by the
agreement must vote to have a closed shop
• For vote to be valid, ⅔ must vote in favour
• Money received is used to promote / protect socio-
economic interests of employees
• Employer may fairly dismiss an employee who refuses to
become a member of union if a closed
shop agreement is in place
• Refusal must not be based on grounds of conscientious
objection
 STRIKES & LOCK-OUTS
• Strike = deliberate refusal to work / slowing down / obstruction of
work, either partially or completely, for the purpose of remedying a
grievance / resolving a dispute in respect of any matter of mutual
interest btw the employees & employers
• LRA allows employees to participate in strikes if they meet certain
requirements = protected strike
• Strike that does not meet these requirements = unprotected strike
= could result in employees being fairly dismissed
• In response to strikes, employers may resort to lock-outs =
employees are excluded from the employer’s workplace & receive no
pay as a means of pressurising them into accepting the employers’
demands
• Are forms of power play whereby employers & employees try to
force each other to agree to conditions that are more favourable to
themselves
 What is a strike?
 Every employee has the right to strike
 To qualify, the refusal to work must come from
persons who are / have been employed by the
same employer / employers
 Must be for the purpose of remedying a
grievance / resolving a dispute
 Must be about a matter of mutual interest btw the
employer & the employee, eg: wages
 What is a lock-out?

 Every employer has the recourse to lock-out in certain

situations
 Applies whether or not the employer breaches those
employees’ contracts of employment in the course of
excluding them from work
 Therefore, even if the employment contract states that the
employee is always allowed on the employer’s premises to
work, the employer’s recourse to lock-out will take the
place of this contractual right
 Protected strikes & lock-outs

 To be protected, a matter of mutual interest must have been referred

to a bargaining council / CCMA
 Commissioner must have issued a certificate confirming that the
dispute remained unresolved, or 30 days must have passed since the
council / CCMA received the referral
 Then the employer, council / employers’ organisation must be given at
least 48 hours notice, in writing, of the start of the strike
 Employers must give similar notice to trade unions / employees /
council in the case of a proposed lock-out
 If state is the employer, must give at least 7 days notice of the start of
the lock-out and state’s employees must give at least 7 days notice of
the start of the strike
 Requirements need not to be followed in these
circumstances:

• Parties are members of a BC and dispute dealt with in

accordance to Constitution of council;
• Strike/lock-out follows prescribed procedures of a CA;
• Strike is in response to an illegal lock-out;
• Lockout is in response to an illegal strike;
• Employer refuses to agree to request from employees/TU not to
carry out a one-sided change to employee’s conditions of
employment.
 Legal consequences:
• A person does not commit a breach of contract
• An employer is not obliged to pay employees (no
work, no pay)
• An employee may not be dismissed for participating
in the strike unless they are guilty of misconduct
during the strike