TOPIC 1 Flashcards
Labour law
A body of legal rules reulating the relationships between employers and employees, employers and trade unions, and employer organisations and trade unions
Why is labour law important for the individual employee?
Survival, fulfilment, access to societal processes which concerns livelihood and opportunities that come with having money, and security such as fair terms and conditions.
Why is labour law important for employers?
Smooth and continued production or rendering of services, employees need to perform according to expectations.
Why is labour law important for the society
Effect of labour relations on the economy, economic development, growth, equality and justice.
What is individual labour law
Relationship between employer and individual employee, relates to the conclusion of the contract, content of the contract and how it will be enforced or terminated.
What is collective labour law
Relationship between employer and trade unions, relationsjips between collective entities, focuses on collective bargaining or strikes.
What are some of the fundamental challenges of labour law
- Inherent conflicts because of different expectations
- Contract- one is not forced to enter into a contract or agree to the terms. Contract will sometimes neglect to raise an issue which is then resolved through common law but the nature of employment is always changing so there is deficiencies in freedom of contract and problems for the ability of residual common law provisions to cater for the needs of employees.
- Power deffirential- the employer has the jobs, the employee may regard the employment relationship as longterm but the freedom to terminate easily may create concerns for stability which creates room for exploitation.
- Traditional common law legislation- no bargaining power, termination on notice irrespective of reason or no reason at all leads to job insecurity, there is no cater for growth and expectations, collective dimension not recognised. Common law legislation is enforced through civil courts who do not understand the labour relations dynamic which causes a lawfulness issue.
- Labour law- legislation is used to force fairness onto the individual employment relationship, but what is lawful is not always fair. Societies have used legislation to force fairness onto the contractual relationship.
Elaborate on traditional common law legislation (law of contract) as a fundamental challenge of labour law and solutions for it.
Power deffirentiation creates a risk for exploitation and actual exploitation and there is no bargaining power.
Termination on notice irrespective of the reason or for no reason at all creates job insecurity, there is no cater for growth and expectations.
The collective dimension is not recognised.
Common law legislation is traditionally enforced through ordinary civil courts who do not understand the labour relations dynamic.
Solutions: Common law deficiencies should be addressed through the overriding effect of legislation through the following 3 steps:
1. Promoting job security and setting minimum conditions of employment.
2. Promotions and protection of collective bargaining and participation management
3. Creation of tribunals with taylor made procedures to enforce principals in labour legislation.
What are the 5 mechanisms that legislation uses to impose fairness on the employment relationship?
- Fair terms and conditions of employment- Directly through the Basic Terms and Conditions of Employment Act such as minimum wage and minimum standards of terms and conditions of employment. And indirectly through collective bargaining like allowing employees to band together to equalise employer employee relationship.
- Protection against unfair dismissal- Through Labour Relations Act who investigate fair grounds for termination.
- Protection against residual labour practices- Through the Labour Relations Act To protect employees from conduct by the employer which makes them unhappy during their term of employment.
- Protection against unfair discrimination- Through Employment Equity Act.
- Taylor made fairness dispute resolution institutions- Disputes of interest handled through collective bargaining and disputes of right handled through CCMA, Bargaining Councils and Labour Court who aim to resolve disputes quickly and effectively and at low cost.
What are the sources of labour law and give a brief overview of each of the 5 sources
- The Constitution
-S23 which is a broad right to fair labour practices and collective labour law rights such as freedom of association
-Principle of subsidiarity which means that if there is legislation giving effect to a certin right contained in the BOR, a party may not directly rely on a right in the BOR unless they challenge the Con or legislation, they have to rather look for a remedy in subordinate legislation
Common law has to develop in line with the Con - International Labour Organisation
-Their international conventions have been ratified in SA law, they are not too specific - Legislation
-The most important are the
Labour Relations Act (LRA) which provides protection for unfair dismissal and unfair labour practices
-Basic Conditions of Employment Act (BCEA) which provides minimum standards for employment with a focus on the terms and conditions of meployment - National Minimum Wage Act (NMWA) which provides minimum standards for employment
- Employment Equity Act (EEA) which regulates discrimination and equal pay
- Codes of good practice which are not binding by law but gives good guidelines
- Other legislation like statutes dealing with the prevention of and compensation for workplace injuries and diseases, social security legislation dealing with other social risks and legislation dealing with skills and qualifications
- Collective arrangements which considers the interest of employers and trade unions
- Contracts- between the individual employer and employee
Why are there so many Constitutional Court Cases
The use of common law and it developing in line with the Con, the CC exercises ultimate authority
Pretorius and Another v Transport Pension Fund and Others 1937 (Subsidiarity)
Facts = Transnet pensioners institute a claim against Pension Fund based on past undertakings, as
they were no longer employees , they could not rely on labour legislation → unhappy about the
pension fund not honouring certain undertakings that they were given for them → however, labour
relations issues only affect employees to which pensioners are not.
Focus = only on that claim alleging unfair labour practices not in terms of legislation but in breach of
section 23(1) of the Constitution.
Section 23(1) refers to “everyone” having the right and its purpose is to protect persons from
unfair labour practices that originated in an employer-employee relationship.
Labour law jurisprudence under the Labour Relations Act recognises that unfair labour practices
may extend beyond the termination of employment → fewer and fewer people are in formal
employment and fewer of those in formal employment have union backing and protection.
Question = are these pensioners allowed to rely on the Constitutional right to fair labour practices →
to circumvent legislation → subsidiarity.
Section 23(1) was then relied upon and not the Labour Relations Act → the Pension Fund raised an
exception due to the principle of subsidiarity.
A decision by Parliament not to cover the entire field would not fail to fulfil a duty in the
Constitution → a claimant may be entitled to rely on the Constitution without having to show that
the LRA is deficient.
Court = drew a distinction between subsidiarity where the constitution requires legislation and
where legislation was not required → required has an example of the right to equality.
Subsidiarity only a rigid rule where the Constitution requires there to be legislation enacted to
give effect to a specific right = where the Constitution does not need legislation to be enacted, it
may be possible to rely directly on the Constitution without showing that applicable legislation is
deficient.
Murray v Minister of Defence 2008 (Common law development)
Facts = a military policeman (military is excluded from the ambit of the LRA) and his claim that his
employer had made his working life impossible and that he had consequently resigned → in a
manner described as constructive dismissal.
Court = the SCA held, very controversially, that an employer, flowing from section 23(1) of the
Constitution, has a general contractual duty of fair dealing towards it employees.
The court held that the employee had a contractual right not to be constructively dismissed.
SA Maritime Safety Authority v McKenzie 2010 (Common law development)
Facts = the employee was dismissed and first referred an unfair dismissal dispute to the CCMA in
terms of the LRA → this dispute was settled by the employer agreeing to pay the employee
compensation → the employee instituted action in the High Court claiming breach of contract,
relying on the existence of an explicit, alternatively implied term in the contract that employment
would not be terminated without just cause.
Issues = employee had said that the contractual clause above was breached and that he was
entitled to damages calculated on the basis of him working for the employer until retirement.
Court = there was no such express term in the contract and there was no reason to imply tailormade protection against unfair dismissal in the LRA.
The court considered Murray and discussed how the rationale behind Murray was that way
because the LRA did not apply to the military policeman, thus the common law could be
developed in terms of Section 8(3) of the Constitution.
In this case, the LRA was applicable and thus the Court was not permitted to develop the
common law.
