LECTURE 12 LABOUR LAW Flashcards
THE EMPLOYMENT RELATIONSHIP:
Relationship between employer and employee is based on individual contract of employment.
Contract of employment is still subject to evolved common law.
Common law does not always address fairness. Therefore the contractual freedom is limited by legislation imposing fair terms.
Legislation introduced following 4 mechanisms imposing an element of fairness on employment relationship;
Ensure fairer terms and conditions of employment. (BCEA)
Legislation laying down minimum terms and conditions.
Legislation promoting collective bargaining.
Protection against unfair dismissal. (LRA)
Protection against unfair labour practices. (LRA)
Protection against unfair discrimination. (EEA)
Definition of contract of employment:
Reciprocal agreement between 2 parties i.t.o. which one party (employee/worker) places labour potential at disposal and under control of other (employer), in exchange for some form of remuneration.
Originated from Roman law locatio conductio operarum.
Essentialia: work and remuneration.
Must still comply with requirements for a valid contract (consensus, capacity, legality, possibility).
Parties to employment contract
Parties are
Employer Natural/juristic person.
Employee Natural person.
Usually all parties who have contractual capacity.
Restrictions on who may be employed and reasons employer may use for not employing
Content of employment contract:
Included in the contract of employment are:
job description;
hours of work;
Remuneration;
leave & other benefits;
restraint of trade;
duties of employee/employer.
Remember freedom to contract NB! So almost anything can be regulated by employment contract.
Not total contractual freedom because:
Certain principles of common law are automatically part of contract.
Legislation may dictate and limit freedom.
Duties of an employer:
Payment of remuneration;
No work, no pay (with a few exceptions).
Pay for services rendered, otherwise it’s unjustified enrichment.
Paid in cash / kind.
Receive employee into service;
Employer must honour contractual obligation.
Provide safe working conditions;
Safe working conditions, safe machinery and safe tools.
To deal fairly with employees;
LRA, BCEA, EEA and OHASA outlaw victimisation.
To comply with statutory duties;
All legislation applicable to employer & employee
Vicarious liability:
Common Law doctrine where employer is held liable for the unlawful or delictual acts of an employee performed during the course of business & in the furtherance of employer’s interests.
Based on the principle that the employer, who by its profitable operation creates a risk of harm to others, has to compensate those who suffer injury as a result of the wrongful conduct of an employee.
Doctrine does not mean the employer will have no recourse, depending on the circumstances; the employer can discipline the employee for misconduct and even claim repayment in this regard.
Requirements:Vicarious liability:
There must be a contract of employment;
Employee must have acted in the course and scope of employment;
Employee must have committed a delict / caused harm to 3rd party.
Duties of an employee:
To enter into service of employer;
Must work before getting paid.
To work competently and without negligence;
Implicit guarantee of ability to do the work.
To obey all reasonable and lawful commands;
Under control and authority of employer.
To act in good faith;
May not use/divulge confidential information,
Must promote business of employer,
May not compete with employer & act honestly.
Restraint of trade;
To enforce the duty to not compete (period and area).
Termination of contract of employment:
Completion of agreed period/task;
Indefinite contracts and fixed-term contracts. Implied renewal.
Mutual agreement between parties;
Consensus on termination – mutual separation agreement.
By notice;
Period normally stipulated in contract, otherwise BCEA
Insolvency;
Employer
Contracts are suspended & only terminated by trustee/liquidator after consultations. (Severance pay, claim against insolvent estate, claim from UIF)
Employee
Normally not terminated, unless director or other office where insolvency creates impediment.
Breach of contract;
One of the remedies is cancellation of contract
Definition of an employee:
Any person, excluding an independent contractor, who works for another person or the State and who receives remuneration; and
Any other person assisting in carrying on or conducting of business.
Also excluded from definition of employee are members of the SANDF, State Security Agency.
Independent contractor:
Independent contract = to hire a person to do a specific job or specific piece of work.
Product/result of labour is object of contract.
Absence of control by the person who requires the work done.
Three tests:
Control test;
Organisation test;
Dominant impression test
Statutory presumption in favour of an employee:
Until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:
the manner in which the person works is subject to the control or direction of another person;
the person’s hours of work are subject to the control or direction of another person;
in the case of a person who works for an organization, the person forms part of that organization;
the person has worked for that other person for an average of at least 40 hours per month over the last three months;
the person is economically dependent on the other person for whom he or she works or renders services;
the person is provided with tools of trade or work equipment by the other person; or
the person only works for or renders services to one person.
Individual vs Collective Labour Law:
Individual Labour Law:
Includes topics such as the formation of the employment relationship, the content of the relationship, and the termination of the relationship.
The assumption here is that the employment relationship exists between two single entities i.e. between a single employer and a single employee.
Collective Labour Law:
Focuses on relationships on a collective level, in other words a number of people are acting together (collectively) to influence this relationship.
Collective labour law looks at groups, for example collective entities such as trade unions and employer’s organisations.
Collective agreement:
he main goal for collective bargaining between an employer and a trade union is to reach a consensus about certain matters and formalise their relationships by means of a collective agreement.
“Collective agreement” is defined in the LRA as a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded between one or more registered trade unions on the one hand or registered employer’s organisations on the other hand.
must be in writing;
only registered trade unions can be a party to a C/A; and
a collective agreement must regulate terms and conditions of employment or any other matter of mutual interest between a trade union and the employer or employer’s organisation.
FAIR TERMS OF EMPLOYMENT - BCEA
Fair terms and conditions are attained by:
Floor rights introduced by the BCEA. Which rights extend to all employees (minimum standards.)
Promotion of collective bargaining between employer and trade unions ensuring fairer terms as contained in collective agreements.
The BCEA limits contractual freedom by prescribing minimum conditions of employment relating to leave, working hours, overtime etc.
Parties may however agree to better terms and conditions
