ABR 410 Semester test 1
Key:
All case law in in blue
All legislation is in pink
Articles in purple
1.1 Introduction to Labour Law
1.2 What is “labour law”: legal sources & its claim to an
independent discipline
= Provides legal protection for those in employment
• However regulation of labor market is a contentious social + political issue (overly rigid
labour legislation inhibits economic development + creation of jobs)
Justification for it as an independent discipline
o Work is fundamental part of one's life:
Fundamental to definitions of self, provides status, esteem, meaning
Is means to sustain material needs + escape poverty → lack of it can result
in social exclusion
Principal means through which economic activity conducted
o ∴ Exists a real need to protect labour rights → loss of employment has devastating
personal consequences + requires specific protection
o BUT Labour law comes from diverse sources: contract, delict, administrative law,
company law, constitutional law, international law
Why was Labour law established?
• PREVIOUSLY: labour law relationship between employee + employer was governed by
employment contact:
o Resulted in challenges as employee:
Was usually at a disadvantage as employees needed work
∴ Would accept all terms + conditions imposed by employer
∴ Employers had the upper hand + would exploit employees
o Also: contractual rules ignore that the bargaining power between employer +
employee is inherently unequal:
Few employees in position to bargain on equal terms with employers
Employer usually in position to dictate terms of the relationship
• → Labour law was established to create a more equal balance & be a countervailing force
o Countered in 2 ways:
1. Individual rights given to employees through legislation
2. Collective rights given to employees + their associations
, o Serves as a countervailing force in a substantive sense + procedural form
Labour law is made up of 2 main components:
• Individual labour law: deals with rights of individual employees as provided for in statutes
(E.g. Minimum conditions of employment, right not to be unfairly dismissed or
subjected to an unfair labour practice)
o Governed by:
Labour Relations Act (LRA)
Principal labour statute
Provides for rights of employee’s to not be unfairly dismissed +
subjected to unfair labour practice
Regulates collective rights (e.g. right to organise, right to strike,
collective bargaining structures)
Regulates trade unions + employer organisations
Provides for establishment of participative structures in form of
workplace forums
Establishes key dispute resolution agencies of CCMA + Labour Courts
Basic Conditions of Employment Act
Sets basic conditions of employment (e.g. working hours) + their
enforcement
Establishes mechanisms for variation of basic conditions through
individual agreement, collective agreements, sectoral agreement
National Minimum Wage Act
Sets minimum rate at which workers must be paid
Establishes national minimum wage commission (required to review
national minimum wage + recommend adjustments)
Employment Equity Act
Prohibits unfair discrimination in the workplace
Requires larger employers to formulate employment equity plans +
to submit reports to the Department of Employment and Labour
Skills Development Act:
Establishes industry based training organisations (sector education,
training authorities)
Regulates standard setting, training and development
Skills Development Levies Act:
Requires employers to contribute a percentage of payroll (currently
fixed at 1 per cent) to fund the infrastructure established by SDA
Unemployment Insurance Act
Limited public social insurance scheme
• Collective labour law: Relationship between employer + trade unions who represent
employees at the workplace
(E.g. Powers given to trade unions, bargaining structures, processes to be followed if
a bargain can’t be struck)
o Governed by:
Labour relations Act
, Provides every employee with right to join a trade union (employee’s
right to freedom of association)
Awards trade unions organisational rights – gives them a foot in the
door of the employer
Affords them an opportunity to present at employers premisses in
order to recruit and represent members
Stronger unions have powers to negotiate with employer on terms and
conditions of employment (Negotiation process between trade unions
and employer = called collective bargaining)
o Aim: Parties to reach agreement on disputes of interest
o Aspects that employee’s do not have a right to but which they
want to have a right to
(e.g. employers enter into contracts with employee’s whereby it
is stated that annual increases will be determined through
negotiations with trade unions on an annual basis)
o If they do not reach agreement → employees have recourse to
lockout & trade unions have recourse to strike
Labour market regulation:
• = areas of regulation (legal and extra-legal) that impact on capacity of individuals to work
in order to earn a livelihood
• Covers work by both employed and self-employed persons as well as the processes by
which individuals obtain skills to enable them to perform productive and remunerative
work
• Covers the terms under which individuals work, conditions under which they enter or leave
work and are provided with security during stages of transition or unemployment
• Overall objective: promote the security of those who work for a livelihood in a manner that
is consistent with the requirements of economic growth
Key organisations that play a role:
• National Economic Development and Labour Council (NEDLAC)
• Council for Conciliation Mediation and Arbitration (CCMA)
• Bargaining council
1.3 Labour law as a “countervailing force” to employers’
superior social power
Intervention in 2 ways:
1. Substantive sense: Imposing minimum standards below which an employer + employee may
not contract
• BCEA: Fixes statutory basic conditions of employment that constitute a term of any contract
of employment, unless more favourable terms are either agreed to or imposed by another
regulatory measure.
• NMWA: Sets national minimum wage
• LRA: Provides for protection for individual employees against employer action in the form of
unfair dismissal and unfair labour practices.
, 2. Procedural form: improve bargaining position of a collective group of employees by creating
rights, institutions and structures
• LRA :
o Guarantees employees right to join trade unions + participate in their activities,
o Affords representative trade unions a set of organisational rights, collective
bargaining structures
o Gives recognition to agreements resulting from collective bargaining processes
o Upholds the right to strike
However difficulties have arisen:
→Ascertaining the applicable law in an employment-related dispute is difficult
• Terms of the employment contract are usually not definitive of relationship between
parties (unlike other commercial contracts) → must look at legislation, wage-regulating
measures, collective agreements, work rules, practice
• Standard contract of employment is no longer primary means through which work is
performed
(Modern day’s work no longer fits into the traditional employer employee relationship)
o Work is performed from home, receiving instructions online, performing with
full autonomy, delivers agreed product or service online, paid online, there is no
workplace + worker rarely sees the employer
• Many employers seek to have work performed in terms of agreements that on their
face are not employment contracts but rather contracts between a client and a service
provider
• Legal distinction between employee + independent contractor has become increasingly
blurred as work related relationships have become more diversified
(E.g. Emergence of gig economy, pop-up economy or platform economy where services
are app-mediated, provided on demand, on a job-by-job basis (e.g. Uber))
→ Levels of union membership in recent years have exhibited a consistent downward trend.
• Reasons: Changed nature of work, decline of industries where union membership has
traditionally been high
• Detrimental implications for those who rely on role of trade unions and collective bargaining
in addressing the asymmetrical distribution of power in society
Impact of Constitution
• Provides for constitutional labour rights
o Right to fair labour practices, rights to freedom of association, freedom of
expression, privacy and equality through enabling legislation
• Rights serve the primary function of protection BUT are not absolute + need to be balanced
against competing rights of others
o ∴ Role of dispute resolution institutions fundamental
o Courts provide the primary mechanism through which labour rights are enforced +
through which competing rights balanced.
Key:
All case law in in blue
All legislation is in pink
Articles in purple
1.1 Introduction to Labour Law
1.2 What is “labour law”: legal sources & its claim to an
independent discipline
= Provides legal protection for those in employment
• However regulation of labor market is a contentious social + political issue (overly rigid
labour legislation inhibits economic development + creation of jobs)
Justification for it as an independent discipline
o Work is fundamental part of one's life:
Fundamental to definitions of self, provides status, esteem, meaning
Is means to sustain material needs + escape poverty → lack of it can result
in social exclusion
Principal means through which economic activity conducted
o ∴ Exists a real need to protect labour rights → loss of employment has devastating
personal consequences + requires specific protection
o BUT Labour law comes from diverse sources: contract, delict, administrative law,
company law, constitutional law, international law
Why was Labour law established?
• PREVIOUSLY: labour law relationship between employee + employer was governed by
employment contact:
o Resulted in challenges as employee:
Was usually at a disadvantage as employees needed work
∴ Would accept all terms + conditions imposed by employer
∴ Employers had the upper hand + would exploit employees
o Also: contractual rules ignore that the bargaining power between employer +
employee is inherently unequal:
Few employees in position to bargain on equal terms with employers
Employer usually in position to dictate terms of the relationship
• → Labour law was established to create a more equal balance & be a countervailing force
o Countered in 2 ways:
1. Individual rights given to employees through legislation
2. Collective rights given to employees + their associations
, o Serves as a countervailing force in a substantive sense + procedural form
Labour law is made up of 2 main components:
• Individual labour law: deals with rights of individual employees as provided for in statutes
(E.g. Minimum conditions of employment, right not to be unfairly dismissed or
subjected to an unfair labour practice)
o Governed by:
Labour Relations Act (LRA)
Principal labour statute
Provides for rights of employee’s to not be unfairly dismissed +
subjected to unfair labour practice
Regulates collective rights (e.g. right to organise, right to strike,
collective bargaining structures)
Regulates trade unions + employer organisations
Provides for establishment of participative structures in form of
workplace forums
Establishes key dispute resolution agencies of CCMA + Labour Courts
Basic Conditions of Employment Act
Sets basic conditions of employment (e.g. working hours) + their
enforcement
Establishes mechanisms for variation of basic conditions through
individual agreement, collective agreements, sectoral agreement
National Minimum Wage Act
Sets minimum rate at which workers must be paid
Establishes national minimum wage commission (required to review
national minimum wage + recommend adjustments)
Employment Equity Act
Prohibits unfair discrimination in the workplace
Requires larger employers to formulate employment equity plans +
to submit reports to the Department of Employment and Labour
Skills Development Act:
Establishes industry based training organisations (sector education,
training authorities)
Regulates standard setting, training and development
Skills Development Levies Act:
Requires employers to contribute a percentage of payroll (currently
fixed at 1 per cent) to fund the infrastructure established by SDA
Unemployment Insurance Act
Limited public social insurance scheme
• Collective labour law: Relationship between employer + trade unions who represent
employees at the workplace
(E.g. Powers given to trade unions, bargaining structures, processes to be followed if
a bargain can’t be struck)
o Governed by:
Labour relations Act
, Provides every employee with right to join a trade union (employee’s
right to freedom of association)
Awards trade unions organisational rights – gives them a foot in the
door of the employer
Affords them an opportunity to present at employers premisses in
order to recruit and represent members
Stronger unions have powers to negotiate with employer on terms and
conditions of employment (Negotiation process between trade unions
and employer = called collective bargaining)
o Aim: Parties to reach agreement on disputes of interest
o Aspects that employee’s do not have a right to but which they
want to have a right to
(e.g. employers enter into contracts with employee’s whereby it
is stated that annual increases will be determined through
negotiations with trade unions on an annual basis)
o If they do not reach agreement → employees have recourse to
lockout & trade unions have recourse to strike
Labour market regulation:
• = areas of regulation (legal and extra-legal) that impact on capacity of individuals to work
in order to earn a livelihood
• Covers work by both employed and self-employed persons as well as the processes by
which individuals obtain skills to enable them to perform productive and remunerative
work
• Covers the terms under which individuals work, conditions under which they enter or leave
work and are provided with security during stages of transition or unemployment
• Overall objective: promote the security of those who work for a livelihood in a manner that
is consistent with the requirements of economic growth
Key organisations that play a role:
• National Economic Development and Labour Council (NEDLAC)
• Council for Conciliation Mediation and Arbitration (CCMA)
• Bargaining council
1.3 Labour law as a “countervailing force” to employers’
superior social power
Intervention in 2 ways:
1. Substantive sense: Imposing minimum standards below which an employer + employee may
not contract
• BCEA: Fixes statutory basic conditions of employment that constitute a term of any contract
of employment, unless more favourable terms are either agreed to or imposed by another
regulatory measure.
• NMWA: Sets national minimum wage
• LRA: Provides for protection for individual employees against employer action in the form of
unfair dismissal and unfair labour practices.
, 2. Procedural form: improve bargaining position of a collective group of employees by creating
rights, institutions and structures
• LRA :
o Guarantees employees right to join trade unions + participate in their activities,
o Affords representative trade unions a set of organisational rights, collective
bargaining structures
o Gives recognition to agreements resulting from collective bargaining processes
o Upholds the right to strike
However difficulties have arisen:
→Ascertaining the applicable law in an employment-related dispute is difficult
• Terms of the employment contract are usually not definitive of relationship between
parties (unlike other commercial contracts) → must look at legislation, wage-regulating
measures, collective agreements, work rules, practice
• Standard contract of employment is no longer primary means through which work is
performed
(Modern day’s work no longer fits into the traditional employer employee relationship)
o Work is performed from home, receiving instructions online, performing with
full autonomy, delivers agreed product or service online, paid online, there is no
workplace + worker rarely sees the employer
• Many employers seek to have work performed in terms of agreements that on their
face are not employment contracts but rather contracts between a client and a service
provider
• Legal distinction between employee + independent contractor has become increasingly
blurred as work related relationships have become more diversified
(E.g. Emergence of gig economy, pop-up economy or platform economy where services
are app-mediated, provided on demand, on a job-by-job basis (e.g. Uber))
→ Levels of union membership in recent years have exhibited a consistent downward trend.
• Reasons: Changed nature of work, decline of industries where union membership has
traditionally been high
• Detrimental implications for those who rely on role of trade unions and collective bargaining
in addressing the asymmetrical distribution of power in society
Impact of Constitution
• Provides for constitutional labour rights
o Right to fair labour practices, rights to freedom of association, freedom of
expression, privacy and equality through enabling legislation
• Rights serve the primary function of protection BUT are not absolute + need to be balanced
against competing rights of others
o ∴ Role of dispute resolution institutions fundamental
o Courts provide the primary mechanism through which labour rights are enforced +
through which competing rights balanced.
