Questions
(a) The common law contract of employment has often been described as a recipe
for exploitation. What view is this based on?
Early employment contracts and statutes were referred to as “Master and Servant’
laws, and although they imposed legal obligations on both employer and
employee, with criminal penalties for default, they were heavily weighted in favour
of the employer. The very nature of the terms, ‘Master’ and ‘Servant,’ gives
credence to this.
Worldwide labour law transpired as both common law, and the law of contract,
had shortcomings in that the playing field and balance of power was too in favour
of the employer. Additionally there was a need to incorporate certain human rights
that came into effect as countries developed constitutions.
This unbalanced situation meant that employers could exploit the employee in a
number of areas and thus the shortcomings of common law and contract law
meant that employees could be exploited in a number of ways, the following of
which would be the most evident:
• In the absence of minimum wage agreements, employers would be able to
grossly under pay and exploit this, as the prospective employee, who in
desperate need for work, would be “forced” to accept the rates on offer.
The desperate need for employment affects the very core of supply and
demand economic principles, thus favouring the employer rather
dramatically.
• The common law simply infers rights and obligations on the employee, the
manner of discharging these obligations, very much controlled by the
employer. With no regulation of working hours the employee would literally
be a ‘slave.’ And exploitation would be rife.
• The common law fails to give employees legal rights to demand better
working conditions and the very nature of freedom to contract rights, does
not discourage exploitation.
• Most significantly, the common law provides no effective protection against
termination of services and thus job security is essentially obliterated. The very
nature of the law of contract would allow an employer to terminate the
contract immediately for just about any breach, and the employee would
have no recourse to a remedy.
(b) Given that most aspects of the employment relationship (e.g. hours of work, sick
leave, protection against unfair dismissal etc.) are now regulated by statute, is
there any point to entering into a detailed written contract of employment?
Although there is a plethora of statutes and legislation governing or determining the
employment relationship, the very nature of the workplace environment requires
flexibility. Hence legislation protects the employee from exploitation, by entrenching
basic rights and obligations, but by the same token offers the employer the option to
structure the workplace terms and conditions in order to have an effective and
productive business.
Page 1 of 62
,Thus a contract of employment avoids vagueness, ambiguity and confusion by
addressing issues that are not defined or set in stone by legislation. This in turn attempts
to avoid parties from being in a continual state of dispute, which would be disruptive
to the work environment.
Importantly, the very rights inferred by the various statutes and legislation, only apply to
the parties to an employment contract, that being the employee and employer.
(c) Name three kinds of dispute in which the terms of the individual contract of
service may be legally relevant.
• Restraint of trade
• Share Options
• Relocation costs
MODULE TWO
Questions
(a) In what respects has the BCEA limited the contractual freedom of
employers and employees?
The BCEA sets forth a minimum standard on a number of key issues relating to the
employment relationship. The contractual freedom is impeded in that only terms or
conditions that is more favourable than those laid down in the BCEA can supersede
the BCEA.
So although an employee or potential employee might be willing to accept terms
or conditions that are less favourable than those laid down in the BCEA, it is not
permissible to contract outside of the law and this may render the contract void.
(b) May an employer make an applicant’s undertaking that he will not claim
pay if he is off sick a condition of appointment?
No. The pay for sick leave may however be reduced by agreement provided that the
number of days allowed is increased commensurately. In addition the days wage must
be at least 75% of the wage ordinarily payable had the employee worked on that
day.
Not withstanding the above the employee is bound by the BCEA as well as
individual companies Policies and Procedures whereby the failure to observe
certain procedures would effectively mean the forfeiting of the right to payment,
e.g., where the employee fails to provide a sick certificate after two days absence
(c) What remedies are available to an applicant for employment if an
employer insists that he should work hours longer than those permitted by
Page 2 of 62
, the BCEA?
The first issue is if an applicant for employment is an employee and therefore entitled
to rights under the act. Section 79(1) expressly widens the definition of “employee” to
include applicants for employment, thus all rights inferred under Part C, relating to the
protection of employees against discrimination, are applicable to applicants for
employment.
Where an employer is insisting an employee to work longer hours than those permitted
by the BCEA, and the employee would probably refuse to take up employment, said
employee could turn to the CCMA or a Council, if the parties are in the registered
scope of that council.
The employee would seek to exercise their rights as inferred by subsection 2(c) (i);
Prejudice an employee because of a past, present or anticipated-
Failure or refusal to do anything that an employer may not lawfully permit or require an
employee to do;
The employee can further invoke subsection 3, No person may favour, or promise to
favour, an employee in exchange for the employee not exercising a right conferred
by this part………..
These two sections read together would give the employee the right to refer a dispute
for conciliation, should the dispute remain unresolved it may be referred to the labour
court for adjudication. Does the employee have the right to strike, as this matter
cannot be referred for arbitration???
(d) Which basic conditions of employment may be changed by individual
agreement?
Individuals may agree to certain variations on the BCEA. Where there is a collective
agreement however that would supersede the individual agreement. The following
are terms and conditions of an individual contract that may be altered by a written
agreement:
• Extension of ordinary hours where employees serve the public
• Paid leave in lieu of overtime
• Compressed working week
• Reduction or suspension of meal intervals
• Reduction in daily rest periods, where employee resides on premises
• Reduction in weekly rest periods
• Time off in lieu of Sunday work
(e) Which basic conditions of employment may be changed by collective
agreement?
Collective agreements can be concluded in two spheres, within the scope of a
bargaining council or concluded between a majority union and the employer or
employer’s organization.
Collective agreements concluded become implied terms of the employment
contract.
There is some margin for problems in that s199 implies that the employee may not be
granted a term that is less favourable than a collective agreement while s23 (3) says
the employment contract is altered by the collective agreement. As an e.g., an
employee is earning R12000 and a collective agreement determines that that grade
Page 3 of 62
, must have a R10000 salary. Alternatively said employee is entitled to four weeks annual
leave and a collective agreement is concluded limiting leave to three weeks.
A collective agreement concluded in a bargaining council may alter, replace or
exclude any basic condition provided that it is consistent with the intentions of the Act
and does not:
• Reduce protection concerning working time regulations and maximum daily,
and weekly hours,
• Reduce protection regarding hours duly related to health and safety,
• Reduce protections regarding night work,
• Reduce annual leave to less than two weeks
• Reduce entitlement to maternity or sick leave
• Conflict with provisions related to child and forced labour.
• Alter any statutory rights such as Freedom of Association.
Collective agreements concluded outside of a bargaining council may regulate any
of the conditions that an individual may agree to, (see question (d) above), or
• Averaging of hours
• Number of days and conditions allowed for family responsibility.
MODULE THREE
Questions
(a) Anne, a marketing representative, objects when her employer appoints his
son-in-law to the post of marketing director. She says she is far better
qualified than he. Will she succeed with a claim in terms of the EEA?
In numerous cases the courts have ruled that a person is better qualified
does not entitle them to a position, in fact from an EEA perspective the act
only requires that a person is sufficiently or suitably qualified Anne will only
have recourse should she be able to prove that she was overlooked
because she is female, that however is an unfair labour practice and hence
her claim is strictly speaking not in terms of the EEA.
(b) On what grounds may an employer prove that discrimination on these
grounds is in fact fair?
Where the discrimination is an act that is consistent with the purposes of the EEA,
compliance with chapter 3, and or where the differentiation is an inherent
requirement of the job. There must however be an active and actual policy of
affirmative action in place for this to be a defence.
Page 4 of 62
(a) The common law contract of employment has often been described as a recipe
for exploitation. What view is this based on?
Early employment contracts and statutes were referred to as “Master and Servant’
laws, and although they imposed legal obligations on both employer and
employee, with criminal penalties for default, they were heavily weighted in favour
of the employer. The very nature of the terms, ‘Master’ and ‘Servant,’ gives
credence to this.
Worldwide labour law transpired as both common law, and the law of contract,
had shortcomings in that the playing field and balance of power was too in favour
of the employer. Additionally there was a need to incorporate certain human rights
that came into effect as countries developed constitutions.
This unbalanced situation meant that employers could exploit the employee in a
number of areas and thus the shortcomings of common law and contract law
meant that employees could be exploited in a number of ways, the following of
which would be the most evident:
• In the absence of minimum wage agreements, employers would be able to
grossly under pay and exploit this, as the prospective employee, who in
desperate need for work, would be “forced” to accept the rates on offer.
The desperate need for employment affects the very core of supply and
demand economic principles, thus favouring the employer rather
dramatically.
• The common law simply infers rights and obligations on the employee, the
manner of discharging these obligations, very much controlled by the
employer. With no regulation of working hours the employee would literally
be a ‘slave.’ And exploitation would be rife.
• The common law fails to give employees legal rights to demand better
working conditions and the very nature of freedom to contract rights, does
not discourage exploitation.
• Most significantly, the common law provides no effective protection against
termination of services and thus job security is essentially obliterated. The very
nature of the law of contract would allow an employer to terminate the
contract immediately for just about any breach, and the employee would
have no recourse to a remedy.
(b) Given that most aspects of the employment relationship (e.g. hours of work, sick
leave, protection against unfair dismissal etc.) are now regulated by statute, is
there any point to entering into a detailed written contract of employment?
Although there is a plethora of statutes and legislation governing or determining the
employment relationship, the very nature of the workplace environment requires
flexibility. Hence legislation protects the employee from exploitation, by entrenching
basic rights and obligations, but by the same token offers the employer the option to
structure the workplace terms and conditions in order to have an effective and
productive business.
Page 1 of 62
,Thus a contract of employment avoids vagueness, ambiguity and confusion by
addressing issues that are not defined or set in stone by legislation. This in turn attempts
to avoid parties from being in a continual state of dispute, which would be disruptive
to the work environment.
Importantly, the very rights inferred by the various statutes and legislation, only apply to
the parties to an employment contract, that being the employee and employer.
(c) Name three kinds of dispute in which the terms of the individual contract of
service may be legally relevant.
• Restraint of trade
• Share Options
• Relocation costs
MODULE TWO
Questions
(a) In what respects has the BCEA limited the contractual freedom of
employers and employees?
The BCEA sets forth a minimum standard on a number of key issues relating to the
employment relationship. The contractual freedom is impeded in that only terms or
conditions that is more favourable than those laid down in the BCEA can supersede
the BCEA.
So although an employee or potential employee might be willing to accept terms
or conditions that are less favourable than those laid down in the BCEA, it is not
permissible to contract outside of the law and this may render the contract void.
(b) May an employer make an applicant’s undertaking that he will not claim
pay if he is off sick a condition of appointment?
No. The pay for sick leave may however be reduced by agreement provided that the
number of days allowed is increased commensurately. In addition the days wage must
be at least 75% of the wage ordinarily payable had the employee worked on that
day.
Not withstanding the above the employee is bound by the BCEA as well as
individual companies Policies and Procedures whereby the failure to observe
certain procedures would effectively mean the forfeiting of the right to payment,
e.g., where the employee fails to provide a sick certificate after two days absence
(c) What remedies are available to an applicant for employment if an
employer insists that he should work hours longer than those permitted by
Page 2 of 62
, the BCEA?
The first issue is if an applicant for employment is an employee and therefore entitled
to rights under the act. Section 79(1) expressly widens the definition of “employee” to
include applicants for employment, thus all rights inferred under Part C, relating to the
protection of employees against discrimination, are applicable to applicants for
employment.
Where an employer is insisting an employee to work longer hours than those permitted
by the BCEA, and the employee would probably refuse to take up employment, said
employee could turn to the CCMA or a Council, if the parties are in the registered
scope of that council.
The employee would seek to exercise their rights as inferred by subsection 2(c) (i);
Prejudice an employee because of a past, present or anticipated-
Failure or refusal to do anything that an employer may not lawfully permit or require an
employee to do;
The employee can further invoke subsection 3, No person may favour, or promise to
favour, an employee in exchange for the employee not exercising a right conferred
by this part………..
These two sections read together would give the employee the right to refer a dispute
for conciliation, should the dispute remain unresolved it may be referred to the labour
court for adjudication. Does the employee have the right to strike, as this matter
cannot be referred for arbitration???
(d) Which basic conditions of employment may be changed by individual
agreement?
Individuals may agree to certain variations on the BCEA. Where there is a collective
agreement however that would supersede the individual agreement. The following
are terms and conditions of an individual contract that may be altered by a written
agreement:
• Extension of ordinary hours where employees serve the public
• Paid leave in lieu of overtime
• Compressed working week
• Reduction or suspension of meal intervals
• Reduction in daily rest periods, where employee resides on premises
• Reduction in weekly rest periods
• Time off in lieu of Sunday work
(e) Which basic conditions of employment may be changed by collective
agreement?
Collective agreements can be concluded in two spheres, within the scope of a
bargaining council or concluded between a majority union and the employer or
employer’s organization.
Collective agreements concluded become implied terms of the employment
contract.
There is some margin for problems in that s199 implies that the employee may not be
granted a term that is less favourable than a collective agreement while s23 (3) says
the employment contract is altered by the collective agreement. As an e.g., an
employee is earning R12000 and a collective agreement determines that that grade
Page 3 of 62
, must have a R10000 salary. Alternatively said employee is entitled to four weeks annual
leave and a collective agreement is concluded limiting leave to three weeks.
A collective agreement concluded in a bargaining council may alter, replace or
exclude any basic condition provided that it is consistent with the intentions of the Act
and does not:
• Reduce protection concerning working time regulations and maximum daily,
and weekly hours,
• Reduce protection regarding hours duly related to health and safety,
• Reduce protections regarding night work,
• Reduce annual leave to less than two weeks
• Reduce entitlement to maternity or sick leave
• Conflict with provisions related to child and forced labour.
• Alter any statutory rights such as Freedom of Association.
Collective agreements concluded outside of a bargaining council may regulate any
of the conditions that an individual may agree to, (see question (d) above), or
• Averaging of hours
• Number of days and conditions allowed for family responsibility.
MODULE THREE
Questions
(a) Anne, a marketing representative, objects when her employer appoints his
son-in-law to the post of marketing director. She says she is far better
qualified than he. Will she succeed with a claim in terms of the EEA?
In numerous cases the courts have ruled that a person is better qualified
does not entitle them to a position, in fact from an EEA perspective the act
only requires that a person is sufficiently or suitably qualified Anne will only
have recourse should she be able to prove that she was overlooked
because she is female, that however is an unfair labour practice and hence
her claim is strictly speaking not in terms of the EEA.
(b) On what grounds may an employer prove that discrimination on these
grounds is in fact fair?
Where the discrimination is an act that is consistent with the purposes of the EEA,
compliance with chapter 3, and or where the differentiation is an inherent
requirement of the job. There must however be an active and actual policy of
affirmative action in place for this to be a defence.
Page 4 of 62
