Unit 3: Labour Legislation

Question 1

How are government guided to establish labour legislations?

Answer 1

• Are guided by universally accepted standards
• Supplied by the various conventions and recommendations of the
  International Labour Organisation (ILO), which are subsequently ratified and implemented by member countries.
• Recommendations and conventions have been passed concerning almost every aspect of the employment relationship.

Question 2

What does the declaration of Philadelphia reaffirm?

Answer 2

The Declaration of Philadelphia reaffirms the main principles on which the ILO is based.

Question 3

What is the Declaration f Philadelphia generally regarded as?

Answer 3

It is generally regarded as the founding document of the International Labour Organisation.

Question 4

What does Part 1 of the Declaration of Philadelphia state?

Answer 4

■ That ‘labour is not a commodity’
■ That ‘freedom of expression and association are essential to sustained progress’
■ That ‘poverty anywhere constitutes a danger to prosperity everywhere’
■ That the war against poverty should be carried on unrelentingly by all concerned in an atmosphere of ‘free discussion and democratic decision-making’.

Question 5

What does part 2 of the declaration of Philadelphia affirm?

Answer 5

Part II affirms the ideological premise of the ILO, namely that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material wellbeing and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’.

Question 6

What achievement must be achieved according to the third part of the declaration of Philadelphia?

Answer 6

■ Promoting training
■ Facilitating the transfer of labour
■ Setting policies regarding wages and conditions of service
■ Recognising the right to collective bargaining
■ Promoting cooperation between management and labour to improve productive efficiency
■ Encouraging collaboration between workers and employers in deciding on social and economic measures
■ Establishing social security measures
■ Instituting comprehensive medical care
■ Protecting the life and health of workers
■ Making provision for child welfare and maternity protection
■ Making provision for adequate cultural facilities for all employees.

Question 7

True or False

Convention No 87 enlarges on one of the founding statements of the Declaration of Philadelphia, namely that ‘… freedom of association and expression are essential for sustained progress’.

Answer 7

True

Question 8

What are the statements contained in Convention no.87?

Answer 8

■ ‘Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisations concerned, to join organisations of
their own choosing without previous authorisation.’
■ ‘Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.’
■ ‘The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.’
■ ‘Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by administrative authority.’
■ ‘In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectives, shall respect the law of the land.’
■ ‘The law shall not be such as to impair, nor shall it be so implied as to impair, the guarantees provided for in this Convention.’
■ ‘Each member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.’

Question 9

How can Convention no.87 concerning the freedom of associations and protection of the right to organize be summarized?

Answer 9

Essentially, it safeguards the most basic freedom in the labour relationship – the freedom to associate (or, for that matter, to disassociate) – on condition that any organisation so established does not break the law, but with the understanding that the law should not impair the freedom of association and the right to organise.

Question 10

What does convention no.98 firstly recommend?

Answer 10

Convention No 98 firstly recommends safeguards against anti-union discrimination

Question 11

What does convention no.98 concerning the application of the principles of the right to organize and to bargain collectively recommend protection against acts?

Answer 11

■ Make an employee or prospective employee agree not to join a union or to give up union membership
■ Allow an employer to dismiss an employee or otherwise prejudice him/her because of union membership or because of participation in union activities
■ Promote the establishment of workers’ organisations under the domination of employers or employers’ organisations
■ Allow employers to support workers’ organisations by financial or other means.

Question 12

What does convention no.98 suggest that the state should create?

Answer 12

The Convention goes on to suggest that the State should create the machinery for the establishment of employee and employer organisations and should provide the machinery for collective bargaining.

Question 13

What right does the Constitution provide?

Answer 13

• The Constitution does provide that rights may be limited by law but on condition that the limitation is ‘… reasonable and justifiable in an open and democratic society based on freedom and equality’, and that the limitation does not ‘… negate the essential content of the right in question’.
• No rights are limitless, as the exercise of an individual’s rights may impinge on the rights of others. Thus the law may limit these rights, but cannot remove them altogether.

Question 14

What does section 23 of the Chapter 2 in the Constitute provide?

Answer 14

Section 23 of Chapter 2 in the Constitution relates specifically to labour relations and provides that:
■ ‘Every person shall have the right to fair labour practices’
■ Workers have the right to form and join trade unions, and employers have the right to form and join employers’ organisations
■ Workers and employers have the right to organise and bargain collectively

Question 15

What does clause 9 of the Bill of Rights provide?

Answer 15

Clause 9, dealing with equality, provides that ‘No person shall be unfairly discriminated against, directly or indirectly’.

(Equality)

Question 16

What does clause 10 of the Bill of Rights entitle?

Answer 16

Clause 10 entitles every person to ‘… respect for and protection of his or her dignity’.

(Human dignity)

Question 17

What does section 14 of the Bill of Rights deal with?

Answer 17

Clause 14, dealing with the right to privacy, spells out the right of persons not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communication.

(Privacy)

Question 18

What does section 16 of the Bill of Rights detail?

Answer 18

Clause 16 details the right to freedom of speech and expression.

Question 19

What does section 17 of the bill of rights grant?

Answer 19

Clause 17 grants every person the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions.

(Assembly, demonstration, picket and petition

Question 20

What does section 18 of the Bill of Rights state?

Answer 20

You can associate with whomever you want to.in the LR perspective this includes the right to form and join a union/employers organisation, right to strike and collective bargaining

Question 21

How is a contract formed?

Answer 21

• A contract may be written, verbal, or it may be understood.
• If no written or verbal agreement has been made, it does not mean that there is no contract.
• The very fact that one person is working for another means that a contract exists.

Question 22

True or False

When no definite period of employment is stated, it
is taken that the employment is definite.

Answer 22

False

When no definite period of employment is stated, it
is taken that the employment is indefinite. This is the difference between a permanent and
a fixed-term contract.

Question 23

What are the requirements of a valid contract?

Answer 23

• Consensus (offer and acceptance)
• Contractual capacity
• Legality
• Possibility of performance
• Formalities (Fixed term contracts and learnership contracts be in writing)

Question 24

What according to rights and duties at common law the employer duties?

Answer 24

■■ pay the employee
■■ provide safe and healthy working conditions
■■ provide work for the employee
■■ not make the employee do work junior to the status for which he was employed
■■ not contract the employee’s services to another employer without the employee’s consent.

Question 25

What is the reciprocal duties of the employee according to the rights and duties at common law?

Answer 25

■■ Perform his work faithfully and diligently
■■ Obey reasonable orders given in the normal course of employment
■■ Not deal dishonestly with the property of the employer
■■ Not compete in his private capacity with the business of the employer.

Question 26

What is the employees rights according the common law?

Answer 26

■■ To remuneration
■■ To work
■■ Not to be demoted
■■ Not to be forced to work for any other employer but his own
■■ To safe and healthy working conditions.

Question 27

State the employers rights

Answer 27

■ Does the work to the best of his ability
■ Obeys reasonable orders
■ Is honest
■ Does not compete with the employer’s business.

Question 28

What cannot be included in a contract?

Answer 28

Anything:
- Illegal
- Immoral
- Contrary to public policy

Question 29

When is a contract considered illegal?

Answer 29

• A contract would be illegal if it contained a provision which would entail a breach of a
  statute or of the common law.
• The parties may not agree on conditions of employment (including wages)
  which are less favourable than those prescribed by the Basic Conditions of Employment Act,
  a bargaining council agreement or a ministerial determination
• An agreement to engage in
  prostitution would be both illegal and immoral. Such contracts will be declared null and
  void.

Question 30

When are contract considered voidable/

Answer 30

Contracts are also voidable where the consent of one party has been improperly obtained by:
■ misrepresentation
■ coercion
■ undue influence.

Question 31

Define misrepresentation

Answer 31

A false or misleading statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The misled party may normally rescind the contract

Question 32

Define coercion

Answer 32

Of persuading someone to do something by using force or threats

Question 33

Undue influence

Answer 33

Influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences

Question 34

State the effect of voidable contracts on the validity of the employment contract

Answer 34

A voidable contract is initially considered legal and enforceable but can be rejected by one party if the contract is discovered to have defects.
If a party with the power to reject the contract chooses not to reject the contract despite the defect, the contract remains valid and enforceable

Question 35

True or False

Breach of contract has always been enactionable in terms of the common law

Answer 35

False

Breach of contract has always been actionable in terms of the common law

Question 36

When does breach of contract occur?

Answer 36

In stances where one party fails to comply with the obligations of the contract

Question 37

State the common law remedies for breach of contract

Answer 37

• Cancellation
• Damages
• Specific performance

Question 38

State the statutory remedies according to the labour Relations Act for breach of contract

Answer 38

• Reinstatement
• Reemployment
• Compensation (amount should be fair and equitable)

Question 39

What situation according to common law that a contract of employment can be terminated?

Answer 39

■ Reasonable notice by either party
■ The consent of both parties
■ The death or incapacity of the employee
■ The insolvency of the employer.
- Effluxion of time
- Dismissal