Topic 1: Introduction
1.1 Introduction to labour law
Why is labour law important?
Labour law is about regulating the relationship between employers and
employees.
The individual dimension regulates the relationship between an
employer and an individual employee.
The collective dimension relates to the relationship between employers
or employers’ organisations and trade unions representing employees.
Importance of the relationship for individual employee’s:
Survival (earning money)
Self-fulfilment
Access to societal processes
Importance of relationship for employers:
Smooth and continued production
Uninterrupted rendering of services by employees
Importance for society:
LL is important because it regulates the labour market and labour
relations are important for the happenings of the economy:
Effect of labour relations on economy
Economic development
Growth
Equality
Social justice
Important topics:
Definition of labour law (1.1.1)
Distinction between individual and collective labour law (1.1.2)
1.2 Fundamental challenges
Before the inception of labour law, labour relationships were only governed by
the employment contract.
Deficiencies of the common law regulation of labour relationships:
o Power of differential = risk of exploitation (lack of bargaining power)
, o Termination on notice = irrespective of the reason for termination
o Frozen in time = the contract does not cater for growth and expectations
unless renegotiated
o Individualized = does not recognize collective dimensions / shared
concerns.
o Traditionally enforced through civil courts which do not understand the
labour relation dynamic = fairness and lawfulness.
The story of LL is the use of legislation to force fairness onto individual
employment.
Legislation overrides an employment contract which is how it enforces fairness.
Important topics:
o Deficiencies in the contractual approach (1.3)
1.3 How legislation imposes fairness on employment relationships.
The Trilogy of legislation:
o Labour Relations Act + (Basic Conditions of Employment and National
Minimum Wage Act) + Employment Equity Act.
Five mechanisms for fairness:
o 1. Promote Fair terms and conditions of employment:
Directly: BCEA/NMWA (minimum standards legislation)
You cannot agree in a contract to less than what is
prescribed in the act.
This legislation interferes directly in the agreement.
Indirectly: The LRA promotes collective bargaining, recognizes
freedom of association and trade union organizational rights.
o 2. Protection against unfair dismissal (the LRA)
The common law allows employers to terminate a contract just by
giving notice. This does not protect job security.
The LRA says that dismissal will only be fair if it is substantially fair
and procedurally correct
Three recognized grounds of dismissal:
Misconduct
Incapacity
Operational requirements
, o 3. Protection against residual unfair labour practices (the LRA)
o 4. Protection against unfair discrimination (EEA)
o 5. Tailor-made fairness dispute resolution institutions (LRA)
Distinction is made between disputes of rights and disputes of
interests.
Dispute of interests = through collective bargaining, try to create a
right.
Dispute of right = CCMA/Bargaining Council/Labour Court
1.4 Sources of labour law
ILO Conventions
o S87: freedom of association
o S98: collective bargaining
o S111: discrimination
The Constitution
o Sections 9, 23 and 33
Legislation
o LRA
o BCEA
o EEA
o Codes of Good Practice
Collective agreements
Contract
1.5 The Constitution
Important rights: 9 (equality), 23 (labour relations) and 33 (fair admin action)
Section 23: Broad right to fair labour practices and collective labour law rights
o Freedom of association
o Right to strike
o Right to engage in collective bargaining
However, the principle of subsidiarity (constitutional avoidance)
o S9 may be about the rights of employees but legislation gives effect to
these constitutional rights.
o Unless the argument is made and won that legislation is unconstitutional.
, 1.6 Picture of labour law
1.7 Prescribed Cases
Pretorius v Transnet Pension Fund (Subsidiarity)
o Facts:
Group of Transnet pensioners (no longer employees, are
retired) felt that Transnet screwed them over as far as the
pension fund benefits were concerned
The group instituted a claim against Transnet Pension Fund
based on undertakings given by the fund in the past.
Because they were no longer employees, they could not rely on
labour legislation.
The Transnet Pension Fund argued that there cannot be a claim
because the pensioners are no longer employees, and as such,
cannot claim interms of unfair labour practices.
The LRA s186(2)(b) limits unfair labour practices to
‘employees’ only.
o Legal Question:
Are the pensioners allowed to rely directly on the constitutional
right to fair labour practices (s23(c)).
Ie. circumvent the legislation giving effect to the right in
terms of the LRA
1.1 Introduction to labour law
Why is labour law important?
Labour law is about regulating the relationship between employers and
employees.
The individual dimension regulates the relationship between an
employer and an individual employee.
The collective dimension relates to the relationship between employers
or employers’ organisations and trade unions representing employees.
Importance of the relationship for individual employee’s:
Survival (earning money)
Self-fulfilment
Access to societal processes
Importance of relationship for employers:
Smooth and continued production
Uninterrupted rendering of services by employees
Importance for society:
LL is important because it regulates the labour market and labour
relations are important for the happenings of the economy:
Effect of labour relations on economy
Economic development
Growth
Equality
Social justice
Important topics:
Definition of labour law (1.1.1)
Distinction between individual and collective labour law (1.1.2)
1.2 Fundamental challenges
Before the inception of labour law, labour relationships were only governed by
the employment contract.
Deficiencies of the common law regulation of labour relationships:
o Power of differential = risk of exploitation (lack of bargaining power)
, o Termination on notice = irrespective of the reason for termination
o Frozen in time = the contract does not cater for growth and expectations
unless renegotiated
o Individualized = does not recognize collective dimensions / shared
concerns.
o Traditionally enforced through civil courts which do not understand the
labour relation dynamic = fairness and lawfulness.
The story of LL is the use of legislation to force fairness onto individual
employment.
Legislation overrides an employment contract which is how it enforces fairness.
Important topics:
o Deficiencies in the contractual approach (1.3)
1.3 How legislation imposes fairness on employment relationships.
The Trilogy of legislation:
o Labour Relations Act + (Basic Conditions of Employment and National
Minimum Wage Act) + Employment Equity Act.
Five mechanisms for fairness:
o 1. Promote Fair terms and conditions of employment:
Directly: BCEA/NMWA (minimum standards legislation)
You cannot agree in a contract to less than what is
prescribed in the act.
This legislation interferes directly in the agreement.
Indirectly: The LRA promotes collective bargaining, recognizes
freedom of association and trade union organizational rights.
o 2. Protection against unfair dismissal (the LRA)
The common law allows employers to terminate a contract just by
giving notice. This does not protect job security.
The LRA says that dismissal will only be fair if it is substantially fair
and procedurally correct
Three recognized grounds of dismissal:
Misconduct
Incapacity
Operational requirements
, o 3. Protection against residual unfair labour practices (the LRA)
o 4. Protection against unfair discrimination (EEA)
o 5. Tailor-made fairness dispute resolution institutions (LRA)
Distinction is made between disputes of rights and disputes of
interests.
Dispute of interests = through collective bargaining, try to create a
right.
Dispute of right = CCMA/Bargaining Council/Labour Court
1.4 Sources of labour law
ILO Conventions
o S87: freedom of association
o S98: collective bargaining
o S111: discrimination
The Constitution
o Sections 9, 23 and 33
Legislation
o LRA
o BCEA
o EEA
o Codes of Good Practice
Collective agreements
Contract
1.5 The Constitution
Important rights: 9 (equality), 23 (labour relations) and 33 (fair admin action)
Section 23: Broad right to fair labour practices and collective labour law rights
o Freedom of association
o Right to strike
o Right to engage in collective bargaining
However, the principle of subsidiarity (constitutional avoidance)
o S9 may be about the rights of employees but legislation gives effect to
these constitutional rights.
o Unless the argument is made and won that legislation is unconstitutional.
, 1.6 Picture of labour law
1.7 Prescribed Cases
Pretorius v Transnet Pension Fund (Subsidiarity)
o Facts:
Group of Transnet pensioners (no longer employees, are
retired) felt that Transnet screwed them over as far as the
pension fund benefits were concerned
The group instituted a claim against Transnet Pension Fund
based on undertakings given by the fund in the past.
Because they were no longer employees, they could not rely on
labour legislation.
The Transnet Pension Fund argued that there cannot be a claim
because the pensioners are no longer employees, and as such,
cannot claim interms of unfair labour practices.
The LRA s186(2)(b) limits unfair labour practices to
‘employees’ only.
o Legal Question:
Are the pensioners allowed to rely directly on the constitutional
right to fair labour practices (s23(c)).
Ie. circumvent the legislation giving effect to the right in
terms of the LRA
