Chapter 1: Introduction
Areas of Focus:
Definition of Labour law.
Why Labour law is largely legislative in nature.
The different mechanisms legislation uses to ensure fairness in the employment
relationship.
What the different sources of labour law are and how they interact.
Prescribed:
Textbook Chapter 1
Pretorius and another v Transport Pension Fund and others (2018) 39 ILJ 1937 (CC)
subsidiarity
Old Mutual Ltd & others v Moyo & another (2020) 41 ILJ 1085 (GJ)
use of contractual remedy instead of labour legislation;
relationship between contract law and legislation;
contractual remedies
Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC)
continued recognition of contractual remedies despite labour legislation
Introduction
Labour Law:
to Labour Law:
•
◦ a body of legal rules regulation relationships between employers and employees,
between employers and trade unions and between employer organisations and trade
unions.
▪ For individual employee:
• Survival, self-fulfilment and access to societal processes.
• One of the most important relationships as it concerns livelihood and the
opportunities that come with money such as private education.
• Security such as fair terms and conditions of employment as well as knowledge
that employment cannot be simply terminated.
▪ For employers:
• Smooth and continued production or rendering of services.
• Need of employees to perform according to employer expectations.
▪ For society:
• Effect of labour relations on economy, economic development, growth, equality
and social justice.
, • Regulation of the labour market as well.
• If employees are allowed to strike unnecessarily, the economy may lose money
as investors may not be interested in such an investment.
• Individual Labour Law:
◦ About the relationships between employer and individual employees.
◦ Related to the conclusion of the contract of employment by the employer and the
individual employee, the contents of that contract, how the contract is enforced and
terminated.
• Collective Labour Law:
◦ About the relationships between employer and trade unions.
◦ Called collective relationships because they are relationships between collective
entities.
◦ Focuses on matters such as collective bargaining as well as strikes and lock-outs.
Fundamental Challenges:
Historically, the law's approach to the employment relationship was to leave the
•
regulation of it to the contract of employment and the contract principles.
• Inherent conflict: different expectations.
• Contract:
◦ The first principle is the idea of freedom of contracting.
◦ One is not forced to enter into a contract, and is not forced to agree to the terms.
◦ This contract would sometimes neglect to raise certain issues which would then be
resolved through the Common law but the changing nature of employment highlighted
deficiencies in freedom of contract, as well as the ability for the residual common law
provisions to cater for the needs of employees.
• Power Differential:
◦ The employer has the jobs.
◦ The idea of freedom of contract may not fit with the employment relationship,
especially when the employee may regard such a relationship as a long term one and
thus, the freedom to terminate easily may also create concerns for stability and
security.
▪ Creates room for exploitation.
• Traditional Common Law Legislation (Law of Contract):
◦ Power differential with there being a risk of exploitation and actual exploitation, no
bargaining power.
◦ Termination on notice irrespective of the reason or with no reason at all which may
lead to job insecurity.
◦ Frozen in time unless renegotiated, where it does not cater for growth and
expectations.
◦ Individualised and does not recognise the collective dimension.
2
Areas of Focus:
Definition of Labour law.
Why Labour law is largely legislative in nature.
The different mechanisms legislation uses to ensure fairness in the employment
relationship.
What the different sources of labour law are and how they interact.
Prescribed:
Textbook Chapter 1
Pretorius and another v Transport Pension Fund and others (2018) 39 ILJ 1937 (CC)
subsidiarity
Old Mutual Ltd & others v Moyo & another (2020) 41 ILJ 1085 (GJ)
use of contractual remedy instead of labour legislation;
relationship between contract law and legislation;
contractual remedies
Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC)
continued recognition of contractual remedies despite labour legislation
Introduction
Labour Law:
to Labour Law:
•
◦ a body of legal rules regulation relationships between employers and employees,
between employers and trade unions and between employer organisations and trade
unions.
▪ For individual employee:
• Survival, self-fulfilment and access to societal processes.
• One of the most important relationships as it concerns livelihood and the
opportunities that come with money such as private education.
• Security such as fair terms and conditions of employment as well as knowledge
that employment cannot be simply terminated.
▪ For employers:
• Smooth and continued production or rendering of services.
• Need of employees to perform according to employer expectations.
▪ For society:
• Effect of labour relations on economy, economic development, growth, equality
and social justice.
, • Regulation of the labour market as well.
• If employees are allowed to strike unnecessarily, the economy may lose money
as investors may not be interested in such an investment.
• Individual Labour Law:
◦ About the relationships between employer and individual employees.
◦ Related to the conclusion of the contract of employment by the employer and the
individual employee, the contents of that contract, how the contract is enforced and
terminated.
• Collective Labour Law:
◦ About the relationships between employer and trade unions.
◦ Called collective relationships because they are relationships between collective
entities.
◦ Focuses on matters such as collective bargaining as well as strikes and lock-outs.
Fundamental Challenges:
Historically, the law's approach to the employment relationship was to leave the
•
regulation of it to the contract of employment and the contract principles.
• Inherent conflict: different expectations.
• Contract:
◦ The first principle is the idea of freedom of contracting.
◦ One is not forced to enter into a contract, and is not forced to agree to the terms.
◦ This contract would sometimes neglect to raise certain issues which would then be
resolved through the Common law but the changing nature of employment highlighted
deficiencies in freedom of contract, as well as the ability for the residual common law
provisions to cater for the needs of employees.
• Power Differential:
◦ The employer has the jobs.
◦ The idea of freedom of contract may not fit with the employment relationship,
especially when the employee may regard such a relationship as a long term one and
thus, the freedom to terminate easily may also create concerns for stability and
security.
▪ Creates room for exploitation.
• Traditional Common Law Legislation (Law of Contract):
◦ Power differential with there being a risk of exploitation and actual exploitation, no
bargaining power.
◦ Termination on notice irrespective of the reason or with no reason at all which may
lead to job insecurity.
◦ Frozen in time unless renegotiated, where it does not cater for growth and
expectations.
◦ Individualised and does not recognise the collective dimension.
2
