Kaya Borkowski
Labour Law
Key
Purple = readings
Blue = section titles
blue highlight = week number
Red = cases
Green = LRA sections
Case in bold mentioned in the text = prescribed case
Week 1
Topics
- Sources of labour law
- Labour dispute resolution
- Jurisdiction
Readings
- SAMWU v Ngwathe Local Municipality (2015) (LAC)
- AMCU v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) (2020) (CC)
- Collier et al Labour Law in South Africa: Ch 6, 16
- The Sources of Labour Law: Par 19.2 -19.3
- LRA (Labour Relations Act, 1995):
- Ss 134-138 (pg 114 in link)
- 145
- 157-158
- 191
- EEA: s10
Introduction
Labour law is divided into:
- Individual rights
- Collective rights
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- Workplace discrimination
- Social security (eg health and safety)
- Labour dispute resolution
Sources of law
Generally
- Constitution
- Legislation
- Precedent
- Common law
- International Law
- Custom
Labour
- Constitution – in particular s 23
- Legislation
- Collective agreements
- Codes of Good Practice
- Precedent
- International Law
- Common law - less so
- Custom - seldom
S23 of the Constitution
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- Who is everyone? Is it everyone or is confined by the link to labour practices? The latter
- Cheadle - labour practices arise from the relationship between workers, employers and their collective
institutions
- Who is a worker?
- SANDU v Minister of Defence (1999) 20 ILJ 2265 (CC) → contract of employment, but also relationships
akin to employment relationship. Soldiers not covered by LRA who wanted to strike. The government
said they cannot strike, but they said they can. Court decided what is meant by a ‘worker’ as in 23(2)
Labour dispute resolution NB institutions:
- CCMA (called ‘the Commission’ in the LRA and ‘the CCMA’ in the EEA)
- Bargaining Councils (similar to CCMA and can resolve disputes in the same way as the CCMA if they
are accredited. Can only approach a council if the Act says so)
5 Signposts of LL
1. Scope of employment: constituency to which labour law applies (determine if they are an employee)
2. (Un)fairness/(un)lawfulness
Procedural and substantive (un)fairness
3. Rights and interest disputes
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Matters of mutual interest.
Rights dispute is a dispute re: something you are already entitled to. If you aspiring to something
but do not have entitlement to it = interest
4. Dispute resolution and the centrality of conciliation
5. Majoritarianism
Some of these relevant to all of labour legislation; others only to specific legislation
Unfairness vs unlawfulness (2nd signpost above)
Example 1
- Fixed term contract for two years
- After two years the contract terminates - that is lawful
- During term the employer creates expectation that contract will be renewed, but then does not renew the
contract
- As the contract period has ended, the termination is lawful. But is it fair?
- Under CL, there is no protection but under the LRA there is because an expectation of renewal has been
created. This is unfair but not unlawful
Example 2
- Contract provides that before dismissal for misconduct, specific procedure must be followed
- Employer dismisses employee for misconduct after following another, albeit still a fair procedure
- Is the dismissal unfair?
- No
- Is the dismissal unlawful?
- Yes
- The contractually agreed procedure was not followed and it is not defence against unlawfulness claim to
say that the other procedure was nonetheless fair
- Is unlawful because the procedure specified in the contract was not followed
- Derel (Pty) Lid v Vorster
Significant Labour Law Events
1. Application and appointment
2. Employment and terms and conditions of employment
3. Trade union membership
4. Collective bargaining between union and employer
• Collective agreement
• Strike/lock-out
5. Unfair (non-discriminatory) treatment in employment (unfair labour practice)
Distribution of this document is illegal
Labour Law
Key
Purple = readings
Blue = section titles
blue highlight = week number
Red = cases
Green = LRA sections
Case in bold mentioned in the text = prescribed case
Week 1
Topics
- Sources of labour law
- Labour dispute resolution
- Jurisdiction
Readings
- SAMWU v Ngwathe Local Municipality (2015) (LAC)
- AMCU v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) (2020) (CC)
- Collier et al Labour Law in South Africa: Ch 6, 16
- The Sources of Labour Law: Par 19.2 -19.3
- LRA (Labour Relations Act, 1995):
- Ss 134-138 (pg 114 in link)
- 145
- 157-158
- 191
- EEA: s10
Introduction
Labour law is divided into:
- Individual rights
- Collective rights
Distribution of this document is illegal
, Kaya Borkowski
- Workplace discrimination
- Social security (eg health and safety)
- Labour dispute resolution
Sources of law
Generally
- Constitution
- Legislation
- Precedent
- Common law
- International Law
- Custom
Labour
- Constitution – in particular s 23
- Legislation
- Collective agreements
- Codes of Good Practice
- Precedent
- International Law
- Common law - less so
- Custom - seldom
S23 of the Constitution
Distribution of this document is illegal
, Kaya Borkowski
- Who is everyone? Is it everyone or is confined by the link to labour practices? The latter
- Cheadle - labour practices arise from the relationship between workers, employers and their collective
institutions
- Who is a worker?
- SANDU v Minister of Defence (1999) 20 ILJ 2265 (CC) → contract of employment, but also relationships
akin to employment relationship. Soldiers not covered by LRA who wanted to strike. The government
said they cannot strike, but they said they can. Court decided what is meant by a ‘worker’ as in 23(2)
Labour dispute resolution NB institutions:
- CCMA (called ‘the Commission’ in the LRA and ‘the CCMA’ in the EEA)
- Bargaining Councils (similar to CCMA and can resolve disputes in the same way as the CCMA if they
are accredited. Can only approach a council if the Act says so)
5 Signposts of LL
1. Scope of employment: constituency to which labour law applies (determine if they are an employee)
2. (Un)fairness/(un)lawfulness
Procedural and substantive (un)fairness
3. Rights and interest disputes
Distribution of this document is illegal
, Kaya Borkowski
Matters of mutual interest.
Rights dispute is a dispute re: something you are already entitled to. If you aspiring to something
but do not have entitlement to it = interest
4. Dispute resolution and the centrality of conciliation
5. Majoritarianism
Some of these relevant to all of labour legislation; others only to specific legislation
Unfairness vs unlawfulness (2nd signpost above)
Example 1
- Fixed term contract for two years
- After two years the contract terminates - that is lawful
- During term the employer creates expectation that contract will be renewed, but then does not renew the
contract
- As the contract period has ended, the termination is lawful. But is it fair?
- Under CL, there is no protection but under the LRA there is because an expectation of renewal has been
created. This is unfair but not unlawful
Example 2
- Contract provides that before dismissal for misconduct, specific procedure must be followed
- Employer dismisses employee for misconduct after following another, albeit still a fair procedure
- Is the dismissal unfair?
- No
- Is the dismissal unlawful?
- Yes
- The contractually agreed procedure was not followed and it is not defence against unlawfulness claim to
say that the other procedure was nonetheless fair
- Is unlawful because the procedure specified in the contract was not followed
- Derel (Pty) Lid v Vorster
Significant Labour Law Events
1. Application and appointment
2. Employment and terms and conditions of employment
3. Trade union membership
4. Collective bargaining between union and employer
• Collective agreement
• Strike/lock-out
5. Unfair (non-discriminatory) treatment in employment (unfair labour practice)
Distribution of this document is illegal
