Chapter 3 - The Constitutional Framework Flashcards
How did the Interim Constitution and Bill of Rights impact labour law ?
They caused a fundamental shift in labour law, even though there was no constitutional challenge against the new Labour Relations Act (LRA) or existing legislation.
What does Section 1 of the LRA state about South Africa’s international obligations ?
Section 1 states that one of the LRA’s purposes is to give effect to South Africa’s obligations as a member of the International Labour Organization (ILO).
What does Section 23(1) of the Constitution state?
Everyone has the right to fair labour practices.
What rights does Section 23(2) grant to workers ?
- To form and join a trade union.
- To participate in the activities and programmes of a trade union.
- To strike.
What rights does Section 23(3) grant to employers ?
- To form and join an employers’ organisation.
- To participate in the activities and programmes of an employers’ organisation.
What rights does Section 23(4) grant to trade unions and employers’ organisations ?
- To determine their own administration, programmes, and activities.
- To organise.
- To form and join a federation.
What does Section 23(5) state about collective bargaining ?
- Trade unions, employers’ organisations, and employers have the right to engage in collective bargaining.
- National legislation may regulate collective bargaining but must comply with Section 36(1) if it limits any rights.
What does Section 23(6) state about union security arrangements ?
National legislation may recognise union security arrangements in collective agreements, but any limitation of rights must comply with Section 36(1).
What did the Constitutional Court decide in NEHAWU regarding fairness in labour practices ?
Fairness must be applied to both employers and employees.
Does it matter whether an employer is a juristic person ?
NEHAWU case.
No, even if an employer is a juristic person, they are still entitled to fair labour practices.
What was the main issue in the Association of Mineworkers and Construction Union case ?
Whether employers must consult minority trade unions during retrenchment.
What does Section 189(1) of the LRA state ?
Employers must consult workers before retrenching, but are not required to consult minority trade unions if a collective agreement exists.
Association of Mineworkers and Construction Union case.
What was the Constitutional Court’s majority decision ?
Association of Mineworkers and Construction Union case.
- No obligation to consult minority trade unions because section 23(1) guarantees fair labour practices, but not an individual right to be consulted.
- Majority unions have stronger bargaining power, making them more effective in negotiations.
What was the minority’s view ?
Association of Mineworkers and Construction Union case.
Section 189(1) was unconstitutional because it limited the right to fair labour practices.
What practices fall under the heading of “labour practices” in South African law ?
Unfair labour practices include issues related to employment, dismissal, discrimination, and trade union activities.
What falls under “unfair labour
practice” ?
- Substantively unfair dismissals or procedural flaws in dismissal.
- Failure to renew a fixed-term contract.
- Dismissal of workers for participating in a lawful strike.
- Selective re-employment.
- Discrimination.
- Victimisation for trade union activities.
What does Section 186(1) of the LRA define ?
Definition of dismissal.
What does Section 187 of the LRA cover ?
Automatically unfair dismissals.
What does Section 188 regulate ?
Dismissals that may be fair based on conduct, capacity, or operational requirements.
What do Sections 189 and 189A deal with ?
Dismissals based on operational requirements, especially for employers with more than 50 employees.
What does Cheadle argue about Section 23(1) and the duty to bargain ?
If legislation clearly excludes a duty to bargain, Section 23(1) should not override that exclusion.
What was the main issue in the SANDU case ?
Whether members of the Defence Force are considered “workers” under Section 23(2) of the Constitution, which grants the right to form and join trade unions.
What was the Constitutional Court’s conclusion in the SANDU case ?
The court ruled that members of the armed forces are “workers” based on ILO conventions, but their labour rights can be justifiably limited due to the military’s unique nature.
What are Cheadle’s three elements of the right to engage in collective bargaining ?
- Freedom to bargain collectively (negative right to collective bargaining).
- Right to use economic power (e.g., strikes and lockouts).
- Positive right to bargain (state-enforced duty to bargain).
What is a closed shop agreement and how does the LRA regulate closed shop agreements ?
- A majority union can require all employees covered by a collective agreement to join the union.
- Sections 25 and 26 impose strict rules to prevent constitutional challenges.
What is an agency shop agreement ?
Workers don’t have to join the union, but non-members must pay an agency fee.
