MRL 3702- LABOUR LAW NOTES

MRL 3702- LABOUR LAW NOTES STUDY UNIT 1- INTRODUCTION - Labour law comprises: 1. Individual labour law – deals with the formation, content and termination of the employment relationship. Employment relationship exists between two single entities eg. one single employer and one single worker 2. Collective labour law- focuses on relationships on a collective level. Ie. a number of people acting together (collectively) to influence this relationship. looks at groups. Eg. May act collectively by way oftrade unions and employer’s organisations - Labour law deals with relationships: Between employer and worker is called employment relationship. Basis of relationship is contract ofemployment Between an employer and trade union called a collective bargaining relationship (collective bargaining canalso exist betw employers organisation and trade union) Between trade unions and workers called a membership relationship. Worker becomes a member of the trade union ito the union's constitution. Also a membership relationship between a single employer and anemployer's organisation State has relationships with all its citizens - Sources of labour law: Constitution, international labour standards set by the ILO (The International Labour Organisation), labour legislation, (for example the Labour Relations Act, the Basic Conditions of Employment Act, and the Employment Equity Act), collective agreements, the common law and thecontract of employment. STUDY UNIT 2- CONTRACT OF EMPLOYMENT - What is a contract of employment? is a voluntary agreement between two parties, in terms of which oneparty (the employee) places his or her labour potential at the disposal and under the control of the otherparty (the employer) in exchange for some form of remuneration - definition of an employee is important because most protective labour legislation (such as LRA & BCEA) apply only to employees (as opposed to independent contractors). An independent contractor is someonewho works for his own account for example a dentist with his own practice. If the dentist works at a hospitaland earns a salary from the hospital he will qualify as an employee. - Definition of an employee ‘any person excluding an independent contractor who works for another person orthe State and receive or is entitled to receive remuneration & any other person who in any manner assists inthe carrying on or conducting the business of an employer’ - Know difference between an employee and an independent contractor. Courts have developed certain teststo help to clarify the concept of ‘employee’ □the control test, □the organisation test, □the dominant impression test - Element of control has been reduced to the right of the employer to control the employee. Is one of theelements which the court will use to decide whether the contract is, in fact, a contract of employment Activity: 1. What is the purpose of the statutory presumption of section 200A of the Labour Relations Act,1995? to protect vulnerable workers 2. List seven factors that will lead to the presumption that a worker is an employee.  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 organisation, the person forms part of that organisation;*  the person has worked for that other person for an average of at least 40 hours per month over the lastthree 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. 3. Must all these factors be present before a worker will be presumed to be an employee? No, only one or more of the factors must be present for the presumption to apply to the employmentrelationship. - What are the differences between an employee and an independent contractor? Employee: Object of contract is to render personal services IC: Object of contract is to perform a specified work or produce specified result Employee: Must perform services personallyIC: Can perform through others Employer: may choose when to make use of services of employeeIC: Must perform work within a fixed period by contract Employee: Contract terminates on death of employeeIC: Contract does not necessarily terminate on death Employee: Contract also terminates on expiry of period of service in contract IC: Contract terminates upon completion of work or production of a specified result Who is an employer? No statutory def for the word. Generally accepted definition ‘person or body which employs any person in exchange for remuneration andany person who permits a person to assist in the conducting of business’ Definition includes labour brokers or temp employment services. A labour broker is the employer of a person whose services have been obtained or provided to a client for areward. Eg . recruitment agency Difficulty in using a labour broker: difficult to identify who the employer is, employees salary is reducedbecause labour broker deducts their fees Categories of employees which qualify for protection under labour law: Permanent employee- employed for indefinite period Temporary/contract/fixed term employee- employed for specified period or specified project Casual- person works for same employer on not more than 3 days a week. The employment can temp orperm. Part-time- works for employer at certain times of the day. Works on certain days, mostly limited to 3 days perweek. Can be temp or perm Unprotected workers Illegal workers- common law dictates that an unlawful contract is void or voidable. Under criminal law, anunlawful contract is punishable by a court of law. If for eg an illegal worker is not protected by the labour law, they may still be protected by the ConstitutionActivAfrican Importers CC appointed Andre as an independent agent to sell the products imported by the corporation. African Importers trained Andre, but they were not entitled to instruct him about the way in which he sold the product, or to whom he sold the product. Andre could engage other people to assist himin marketing African Importers' products and, if he wished, he could sell other products as well. Andre could take vacation leave without the consent of African Importers CC, and had no obligation to submit medical certificates if he was ill. Do you think Andre was an employee or an independent contractor? In terms of the dominant impression test, Andre was not an employee, but an independent agent who was his own master, because he did not perform the services required of him under the control and supervision ofAfrican Importers. However, in terms of the definition of employee, Andre did assist African Importers in the carrying on of their business. That assistance arose out of his obligation as an agent in terms of an agency agreement, not out of a contract of employment. Andre is therefore not an employee, but an independent contractor. Activ- P hires K, a builder, to build a flat for P's parents on P's property. K uses his own building equipment and has a team of workers in his employment who will do the actual work. P will pay K when the flat is completed. K is also involved in other building projects, so he uses S, his foreman, to supervise the workon P's flat. Do you think that K is an employee of P? Will S be an employee of K? K is an independent contractor. Using the control test as a criterion, S is an employee of K. Susan is an accountant. She is employed at two businesses for which she audits their books. Every Fridayshe works at Trustworthy Trustees and on Mondays she works at the Special Care Pharmacy. Susan is amember of an independent pension fund, but makes use of a motor vehicle provided by Trustworthy Trustees for tax benefits. Susan has her own office at the back of the Special Care Pharmacy, and she makes her own decisions about her working hours. Trustworthy Trustees has provided a computer for Susan, but usually Susan uses her own personal computer. Do you think Susan is an employee or an independent contractor? If we use the organisation test as our criterion, it may seem in light of the facts that Trustworthy Trustees hasprovided Susan with a computer and a motor, that she is therefore an employee. The control test, however, will probably indicate that neither Trustworthy Trustees nor Special Care Pharmacy has control over Susan'sworking hours nor does either company control the way in which she does her work. The dominant impression is that Susan is an independent contractor, even though it seems that she works for these two companies every week. We will probably need more information before we can make a final decision. This is an example of a borderline case, and this example should help you to appreciate how difficult it is sometimesfor the court to gain a “dominant impression”. Activ- Tambo, a builder by trade, does work for Entrepreneur CC. Entrepreneur CC has realised that education is crucial to the development of the new democratic South Africa, and is establishing various educational enterprises at both secondary and tertiary level. Tambo lives on the premises of the first educational venture, is paid monthly, and has pension and medical-aid contributions deducted from his salary. Tambo is consulted about building plans, and even designs some of the buildings himself. He is usually consultedabout the hiring of builder's assistants, some of whom are part-time and others are full-time. From time to time, Tambo meets with one of the managers of Entrepreneur CC to discuss the current building projects, the financing of building materials, the payment of the builder's assistants, labour-related problems and, when necessary, future plans. Which of the following statements is the correct? (1) A builder is an independent contractor, and therefore the contractual relationship between Tamboand Entrepreneur CC is that of an independent contractor. (2) Tambo is an independent contractor because he, and not Entrepreneur CC, hires builder'sassistants and orders building material. (3) In terms of the multiple test, the dominant impression is that Entrepreneur CC is the employer andTambo is the employee. (4) Because Entrepreneur CC can tell Tambo what to do, where to do it and how to do it, Entrepreneur CC as the employer has control over all that Tambo does. (3) is the correct answer. Although builders are usually independent contractors, in the case of Tambothe dominant impression is that he is an employee of Entrepreneur CC. (1), (2) and (4) are incorrect.