South African labour law

Regulates relationships between employers, employees and trade unions From Wikipedia, the free encyclopedia

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

History

The Native Labour Regulations Act 1911 prohibited strikes by trade unions, introduced wage ceilings and a pass system for moving around jobs. Over 70,000 Chinese labourers were brought in, and used by landowners to undercut the wages of other workers. Among white workers, there was significant unrest, and major strikes took place in 1907, 1913, 1914 and 1922

For a period of sixteen years, from 1979 to 1995, several critical developments occurred in the field of labour law in South Africa, beginning with a radical change in the first of these years, when a significant Commission of Enquiry was held, resulting in the establishment of an Industrial Court, which was given extensive powers to mould, change, shape and develop the law. Prior to 1995, most labour relations were based on contracts. In 1995, much of the law developed by the Commission and the Industrial Court was put together in the Labour Relations Act 1995 (LRA). Since then, most labour law has been based on statute.

Prior to 1995, an employee could be dismissed in terms of the contract of employment, which could permit any reason for dismissal. Since 1995, an employee may be dismissed only for misconduct, operational reasons and incapacity. The Labour Relations Act 1995 is a pivotal piece of legislation, as it recognises the need for fast and easy access to justice in labour disputes. The Industrial Court had the status of a High Court, and therefore was not accessible to all labourers.

1995 also saw the introduction of the Commission for Conciliation, Mediation and Arbitration (CCMA) which is an administrative tribunal. The Commission for Conciliation, Mediation and Arbitration endeavours first and foremost to conciliate between the parties. If it is unsuccessful in this, the matter moves on to arbitration. The entire process is very informal, and at no charge, and is therefore very accessible to labourers, who often use it: About 300 new cases are brought before the Commission for Conciliation, Mediation and Arbitration daily. In addition to the Commission for Conciliation, Mediation and Arbitration, 1995 saw the introduction of bargaining councils, which allow for communication across the industry. A bargaining council is organised collectively and voluntarily, and must be registered. In order to be registered, an alternative-dispute-resolution mechanism, similar to the Commission for Conciliation, Mediation and Arbitration, must be put in place.

The Labour Relations Act 1995 also regulated the issue of fairness, not only in termination but during employment, too. In 1998, however, most of the law on unfair labour practices was removed from the Labour Relations Act 1995 and put into the Employment Equity Act (EEA). The EEA also deals with issues such as fairness regarding a worker's human immunodeficiency virus (HIV) status or disability, as well as the issue of affirmative action.

The Basic Conditions of Employment Act (BCEA), the Health and Safety Acts and the Skills Development Act, must be read with the EEA. The Skills Development Act provides that a small percentage of a labourer's salary must be contributed to the Department of Labour, enabling certain workshops to be run which are designed to develop skills.

Constitution

Chapter 2 of the Constitution contains several provisions of relevance to employment and labour law:

the right to equality
protection of dignity
protection against servitude, forced labour and discrimination
the right to pursue a livelihood and
protection for children against exploitative labour practices and work that is hazardous to their well-being.

It is important to interpret all labour legislation in light of the Constitution.

Section 23 of the Constitution deals specifically with labour relations, providing that everyone has the right to fair labour practices,^[1] and specifically the right

to form and join a trade union;
to participate in the activities and programmes of a trade union; and
to strike

Every employer, meanwhile, has the right

to form and join an employers’ organisation; and
to participate in the activities and programmes of an employers’ organisation.

Every trade union and every employers’ organisation has the right

to determine its own administration, programmes and activities
to organise and
to form and join a federation

Finally, every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Section 23(1) is an unusual provision—only South Africa and Malawi expressly protect the right to fair labour practices — as it is so broad and overarching. An exact definition of fair labour practices is impossible, since this is a dynamic field of the law, rooted in socioeconomic rights. Section 23(1) refers to "everyone," encompassing far more than merely employees and workers; it also includes would-be workers, employers and juristic persons.

Section 23 is not entirely universal, however, as soldiers are excluded from its ambit insofar as they may not strike at a time of war.

The Labour Relations Act was promulgated as the "national legislation" referred to in subsections 23(5) and 23(6), which provide respectively that "national legislation may be enacted to regulate collective bargaining," and that "national legislation may recognise union security arrangements contained in collective agreements." Both subsections stipulate that, to the extent that such legislation may limit one of the rights in section 23, the limitation must comply with section 36(1), the limitations clause of the Constitution.

The current Basic Conditions of Employment Act is also designed to give effect to the right to fair labour practices. Both Acts are bolstered by the EEA, which replicates the equality clause in the Constitution in its totality, adding that one may not discriminate on the basis of human immunodeficiency virus (HIV) status.

The general guarantee of fair labour practices has far-reaching effects on the civil courts’ approach to the interpretation of the rights of parties to employment contracts.

All courts are enjoined, when applying and developing the common law, to have due regard to the spirit, purport and objects of the Bill of Rights. This calls for a reconsideration of some of the assumptions underlying the common-law contract of employment, in particular the employer's power of command and unfettered rights in respect of promotion and dismissal.

Furthermore, the labour courts’ judgments on such contentious issues as the dismissal of striking workers are subject to review by the Constitutional Court, so long as the applicants have exhausted the procedures available to them under the labour legislation.

In NUMSA v Bader Bop,^[2] the Constitutional Court overturned a decision of the Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. The court recognised the necessity of collective bargaining and bargaining councils which facilitate the establishment of trade unions. The court held that minority unions may not strike in support of demands for organisational rights reserved in the Act for majority unions.

In NEHAWU v University of Cape Town,^[3] the Constitutional Court overturned another decision of the Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. It had been argued that the term "everyone" did not include a university or a company, but the court held otherwise. Furthermore, the court ruled that, under the original section 197 of the Labour Relations Act 1995, contracts of employment transferred automatically when businesses were transferred, irrespective of the wishes of the employers.

SANDU v Minister of Defence,^[4] another Constitutional Court, case Judge O’Reagan dealt with the concept of a "worker," and held that, although the Labour Relations Act 1995 does not apply to South African National Defense Force (SANDF) members, they are still "workers" in terms of the Constitution, which protects the rights of every person in South Africa.

Employment contract

Parties

Labour Relations Act 1995 s 200A

There is very little work that cannot be outsourced. Outsourcing is generally not supported by trade unions, who represent employees. If work is outsourced, the worker is an independent contractor. Political pressure was placed on government to move away from outsourcing and more towards employment.

In 2002, accordingly, a new presumption was added to the Labour Relations Act 1995, providing guidelines on when it has to be ascertained whether or not someone is an employee. This presumption was introduced as a part of significant amendments to the Labour Relations Act 1995 and the Basic Conditions of Employment Act in 2002.^[5]

The effect of this rebuttable presumption is that, if one or more of the list of factors is present, the person is presumed to be an employee unless and until the contrary is proven. Many of the factors and issues discussed by the courts in the cases above resurface again: The presumption is thus created

if the manner in which the person works is subject to the control or direction of another person;
if the person's hours of work are subject to the control or direction of another person;
if, in the case of a person who works for an organisation, the person forms part of that organisation;
if the person has worked for that other person for an average of at least forty hours per month over the last three months;
if the person is economically dependent on the person for whom he works or renders services;
if the person is provided with tools of trade or work equipment by the other person; and
if the person only works for or renders services to one person.

The legislative provision has been taken by some to be merely a restatement or summary of the principles laid down by the courts with the passing of time.

Although this presumption is useful in determining whether a person is an employee or not, as it is closely linked to the principles and approaches developed by the courts, the Labour Court held, in Catlin v CCMA, that section 200A does not do away with the principle that the true nature of the relationship between the parties must be gathered from the contract between them. Section 200A is not the starting point, therefore; the court held that it is necessary to consider the provisions of the contract before applying the presumptions.

Duties

An employment relationship commences only when the parties conclude a contract of service. Prior to this, neither party has any rights against the other; they are merely a prospective employee and a prospective employer.

There are, however, two statutory exceptions to the principle that employers have no obligations to applicants for employment:

The EEA prohibits direct or indirect unfair discrimination against an employee or applicant for employment on the basis of race, colour, gender, sex, religion, political opinion, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, culture, language, family responsibility, marital status or any other arbitrary ground.
The Labour Relations Act 1995 and the Basic Conditions of Employment Act protect both employees and persons seeking employment against discrimination for exercising rights conferred by the Acts.^[6]^[7]

Employee

Basic employment rights

The Basic Conditions of Employment Act is aimed at low-income earners: those who earn less than R193,805 per annum.^[8]

No matter what the contract itself says, the Basic Conditions of Employment Act is applicable as the minimum standard that must be achieved.

The Labour Relations Act 1995 deals with strikes and unions and the like; the Basic Conditions of Employment Act is a fall back option for those vulnerable workers who are not able to unionize due to various reasons, such as the kind of work they do. Domestic and farm workers are pertinent examples in the South African context.

The purpose of the Basic Conditions of Employment Act is to advance economic development by providing basic conditions of employment.

The Basic Conditions of Employment Act also contains the definition of an employee, so that issue, discussed above, is relevant here, too. The Minister is empowered to extend the provisions of the Basic Conditions of Employment Act to non-employees in specific circumstances. Even, therefore, if a domestic worker is not considered an employee in terms of the Basic Conditions of Employment Act, the Minister may extend the provisions to her for her own protection.

Hours

A maximum of 45 hours per week is allowed to be worked. These stipulations (regarding hours) are not applicable on the following persons:

a person that earns more than R211,596.30 per year; or
a person in a senior management position; or
Sales personnel, employees are required to travel in the performing of their duties, and people that can determine their own work hours.^[9]

Sundays

Payment for working on a Sunday is twice the normal wage if the employee is not expected in terms of his/her contract to work on Sundays, however if the employee is expected to work on Sundays in terms of his or her contract, the employee shall receive 1.5 times the normal wage.^[9]

Meal intervals

An employee is entitled to one hour off after 5 consecutive hours of work.^[9]

An employee's meal interval can be reduced to 30 minutes by mutual consent.

Maternity leave

An employee is entitled to four months off in total, the leave must start at least 4 weeks prior to the expected birth date, and end at least 6 weeks after the expected date of birth. It does not, however, stipulate that this is paid leave. In terms of the Unemployment Insurance Fund, when a woman is on maternity leave, she is entitled to Unemployment Insurance Fund benefits for half the time spent away. Usually the employer will pay the other half, but this is not required in the Basic Conditions of Employment Act.

Family-responsibility leave

If the employee has been working for more than four months, he is entitled to 3 days family-responsibility leave, as in the case where there has been a death in his/her immediate family. Furthermore, in case where the employees child is ill.

Remuneration

Employers must keep records of the hours worked and remuneration awarded for each employee for at least three years.

Employees are to be paid in South African currency at the place of work (unless this is altered in the contract).

Employers may not deduct money from employees unless prior consent in writing is obtained.

Regarding severance pay, in cases of retrenchments or dismissals for operational reasons, employees are entitled to one week's pay for every year worked.

Variations

The Basic Conditions of Employment Act is the very minimum standard required by employers. Employers may award more, but never less, than what is stipulated.

If an employer gives more than the minimum, he may be locked into always giving more, as he must then abide by the required annual increases, which are based on a percentage of the current pay.

An employer may vary the provisions in the contract by

individual agreement; or
collective agreement on an industry-wide basis.

Discrimination law

Seen generally, there are three mechanisms designed to protect the individual employee:

protection against unfair dismissal;
protection against unfair labour practices; and
the setting of minimum conditions of employment in the Basic Conditions of Employment Act.

The fourth mechanism of protection is protection against unfair discrimination.

The Labour Relations Act 1995 was the first piece of legislation to deal with discrimination in the workplace.

The EEA also contains detailed provisions to counteract and eliminate discrimination in the workplace.

The Constitution, with its right to equality,^[10] provides an important constitutional context for employment equity. A consideration of this constitutional provision indicates that the elimination of discrimination has two bases:

formal equality, or equality in treatment; and
substantive equality, enshrined in the adoption of positive measures to empower previously disadvantaged groups in South African society; also known as "affirmative action."

Section 6 of the EEA contains the main thrust of the Act's prohibition against unfair discrimination. It provides that

no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

It is not unfair discrimination

to take affirmative action measures consistent with the purpose of the Act; or
to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.^[11]

Harassment of an employee is a form of unfair discrimination, and is prohibited on any of the above grounds.^[12]

Furthermore, the EEA places a positive duty on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.^[13] In certain circumstances there may be a duty on the employer to take reasonable measures to accommodate certain groups of employees.

In this regard, the Code of Good Practice: Key Aspects of human immunodeficiency virus (HIV)/acquired immunodeficiency syndrome (AIDS) and Employment, together with the Code of Good Practice on the Employment of People with Disabilities, provides guidelines on how HIV/AIDS and disability should be dealt with and accommodated in the workplace.

This is the only legislative provision that mentions human immunodeficiency virus (HIV) status as a prohibited ground of discrimination. Its inclusion makes section 6 of the EEA even wider than section 9 of the Constitution.

Section 6 protects only an "employee," but it does not speak only of an employer; it provides that "no person" may discriminate. This is broader, and may include, inter alia, an independent pension fund or an independent medical aid scheme, or even a fellow employee.

In this regard, if an employee lodges a complaint of discrimination against another employee, and the employer does not consult in an attempt to eliminate the discrimination, the employer may be held liable.

The difference between discrimination and differentiation must always be kept in mind, as not all differentiations amount to discrimination. There may be a fair differentiation between employees on the basis, for example, of educational qualifications or experience or seniority.

Generally, differentiation will amount to discrimination if it is based on an unacceptable reason. Even if the discrimination suffered is not listed in section 6(1) of the EEA, it would amount to discrimination if, objectively, it is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings, or to affect them adversely in a comparably serious manner.

Once the employee has proven that there has been a differentiation, the EEA and Constitution provide that it is presumed to have been unfair discrimination. The employer then bears the onus of proving the differentiation to be fair.

Discrimination may be direct or indirect:

It is direct when it is clearly and expressly based on one or more of the grounds listed in section 6 of the EEA.
It is indirect when, although not express, discrimination occurs as a result of it, as when an employer imposes a gender-neutral criterion, such as height or weight, as a condition for employment, and this criterion indirectly has a disproportionate effect on women.

Harassment

The EEA provides that harassment amounts to "a form of unfair discrimination," and as such is prohibited.^[12] The most prevalent forms of harassment encountered in the workplace are

sexual harassment;
racial harassment;
sexual-orientation harassment; and
religious harassment.

Of these, sexual harassment is by far the most common.

Sexual harassment

The Code of Good Practice on Handling of Sexual Harassment Cases lists three types of conduct which could constitute sexual harassment:

physical conduct ranging from touching to sexual assault and rape, and including a strip-search by or in the presence of the opposite sex;
verbal conduct, including innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person's body (made to that person or in her presence), enquiries about a person's sex life, and even whistling at a person or a group of persons; and
non-verbal conduct, including gestures, indecent exposure or the display of sexually explicit pictures or objects.

Other remedies

The employee who resigns due to sexual harassment may argue that this was a constructive dismissal, which would provide grounds for finding an automatically unfair dismissal.

A victim of harassment may institute a civil claim, based on delict, against the perpetrator; she may also institute a claim against the employer, based on the common-law principles of vicarious liability.

Medical testing

The EEA prohibits medical testing of an employee, unless

legislation requires or permits such testing; or
the testing is justifiable.^[14]

HIV/AIDS

The EEA lists HIV status as one of the grounds on which an employee may not be discriminated against.^[15]

In Hoffman v South African Airways, the court found that people living with HIV constitute a minority, to which society has responded with intense prejudice, stigmatization and marginalization. Society's response has forced many of them not to reveal their HIV status, for fear of such prejudice, and has thus deprived them of the help they would otherwise have received. This stigmatization the court considered an assault on their dignity. ^[16]

Employers may make HIV testing available to employees as part of a "wellness" program, provided that it takes place confidentially and on the basis of informed consent. Authorisation from the Labour Court is not required for such testing.

Affirmative Action

Alongside the prohibition against unfair discrimination, affirmative action is the second cornerstone of the EEA.

According to section 2(b) of the EEA, the goal of affirmative action is to ensure the equitable representation of certain groups in all occupational categories and levels in the workplace.

Designated employers

The prohibition of unfair discrimination applies to all employers, regardless of their size, but the affirmative-action provisions of the EEA apply only to "designated employers."

A "designated employer" is defined as follows:

an employer who employs fifty or more employees; or
an employer who employs fewer than fifty employees but whose annual turnover in any given year exceeds a certain level,^[17] like an employer in agriculture with a total annual turnover of R2,000,000;
municipalities;
organs of state; or
an employer appointed as a designated employer in terms of a collective agreement.

Employers that do not fall within the ambit of this definition may still voluntarily indicate that they intend to comply with the Act.

Employment-equity plans

The employment-equity plan is the centrepiece of the procedure for implementing affirmative action in the workplace.

A designated employer has to consult with the workforce on

the conduct of an analysis of its employment policies, practices and procedures, as well as the working environment;^[18]
the preparation and implementation of an employment-equity plan, which will achieve reasonable progress towards employment equity in the workforce;^[19] and
the submission of reports to the Department of Labour.^[20]

The analysis described above must also contain a profile of the employer's workforce.^[18] Using this profile, the employer must determine the degree of under-representation of people from designated groups in the various categories and levels.

The employment-equity plan must include

annual objectives;
the affirmative-action measures that have to be implemented;
annual timetables for the achievement of goals;
the duration of the plan; and
internal procedures to resolve disputes about the interpretation or implementation of the plan.

Job security

Common law

The common law afforded the employee virtually no protection against unfair dismissal. Before the Labour Relations Act^[21] (LRA), as long as the employer gave the required period of notice, dismissal or probation was acceptable. The common law focused only on the lawfulness of the employment contract itself; the reason for the dismissal was irrelevant. The employer was not required to give the employee an explanation for the termination; nor was there any requirement that the dismissal be fair.

Labour Relations Act

The Labour Relations Act gives regulates and gives effect to the following, which includes but is not limited to: to give effect to section 27 of the Constitution; to regulate the organisational rights of trade unions; to promote and facilitate collective bargaining at the workplace and at sectoral level; to regulate the right to strike and the recourse to lockout in conformity with the Constitution; to promote employee participation in decision-making through the establishment of workplace forums; to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration. Furthermore, provides for the right not to be unfairly dismissed or subjected to unfair labour practices.^[22]

Is the worker an employee? (Only employees may be dismissed, and only employees enjoy the protection of the Labour Relations Act.)
Has there been a dismissal? (To answer this question, one must look to section 186(1) of the Labour Relations Act.)
Is the dismissal substantively or procedurally unfair? (In this regard, the reason for the dismissal will be a decisive factor.)

The employee has the onus to establish that there has in fact been a dismissal.^[23] If this is discharged, the onus shifts to the employer, who prove the fairness of the dismissal.^[24]

"Dismissal" is the termination of the employment relationship by the employer, with or without notice.^[25] It can also entail

that the employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms, or did not renew it at all;^[26] or
that the employer refused to allow the employee to resume work after she took maternity leave in terms of any law or collective agreement, or in terms of her contract of employment.^[27]

An employer who has dismissed a number of employees for the same or similar reasons, but who now offers to re-employ one or more of them, while refusing to re-employ another, will have dismissed the latter.^[28]

The statutory definition also recognises as constituting dismissal certain circumstances in which the employee terminates the employment relationship. This is known as constructive dismissal.^[29]

Where, for example, an employee terminates a contract of employment, with or without notice, because the employer has made continued employment intolerable for him, he will have been constructively dismissed.^[30]

An employee may also be regarded as having been constructively dismissed if he terminates a contract of employment, with or without notice, because his new employer, after a transfer of the business as a going concern,^[31] provided him with conditions or circumstances at work which are substantially less favourable than those provided by his former employer.^[32]

Collective labour law

The power play between employers and employees is clearly in evidence in the engagement of employer and employee through collective labour law. The LRA, together with other labour legislation, lays down basic rights and duties and remedies for ensuring fairness in the employment relationship. These are matters relating to the rights of employees and are accordingly known as "rights issues."^[33] When it comes to creating new terms and conditions of employment—these are known as "interest issues" or "matters of mutual interest"^[33]—or to changing existing terms, no legislation exists which explicitly regulates the situation. These issues, it is assumed, are better dealt with by the parties themselves. A court may not, for example, determine an annual increase for employees, or decide whether or not a crèche facility at the workplace is mandatory, or whether employees should be permitted to take Friday afternoons off. The reason for this is that "it is impossible to regulate these matters of mutual interest."^[33] This is where collective bargaining comes into the picture.

The LRA recognizes the importance of collective bargaining and supports the mechanism:

If collective bargaining can be compared to a boxing match, the LRA can be seen as the organiser of the boxing match and the employers and trade unions are the boxers on opposite sides. The LRA provides the basic rules to protect the boxers both inside and outside the boxing ring. This is done, for example, by protecting the right of employees to form and join trade unions and to participate in their activities. This applies equally to employers who can form employers' organisations.^[33]

Section 213 of the LRA defines a trade union as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organisation.” An employer organisation is defined as “any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions.”^[34]

The LRA regulates the registration of trade unions and employers' organisations. It creates bargaining fora, such as bargaining councils and statutory councils, and guarantees the right to freedom of association. It also regulates organisational rights and strikes and lock-outs.

Once workers are organised in a registered trade union, and employers in an employers' organisation, the power play between workers and employers begins. Employees may try to force the employer's hand by way of strike action, while the employer ma exert pressure on the employees by way of a lock-out. It is accepted that strike action will result in a certain measure of economic handship for the employer. Provided that the strike has obtained protected status in terms of the law—in other words, is not prohibited, and the prescribed procedures have been followed—such economic hardship is considered to be part and parcel of the power struggle between employees and their employers: "In fact, this is the whole idea!"^[35] The more the employer is hurt economically, the greater the chance that the strikers' demands will be met.

It is important to know when a strike or lock-out is protected, and when it is not, because that will determine the course of action and remedies for employers in the case of a strike, and for employees in the case of a lock-out.

History

Industrial Conciliation Act (1924)

Between 1911 and 1918, a succession of laws was promulgated in South Africa which dealt with various industrial sectors, and with labour in general. Only in the aftermath of large-scale industrial unrest on the Witwatersrand in 1922, however, was any comprehensive attempt undertaken to regulate relations between management and organised labour. The tumult on the Rand led directly to the first comprehensive piece of labour legislation, the Industrial Conciliation Act 1924, which was also the first legislation to regulate strikes in the country. It also recognised and regulated lock-outs. The Act provided for the registration of white trade unions and employers’ organisations, "self-evidently also white,"^[36] and established a framework for collective bargaining through industrial councils or conciliation boards, as well as a dispute settlement system. Although the Act was "largely voluntarist,"^[36] compliance with its provisions and with collective agreements was enforced by criminal sanction. The 1924 Act resulted in greater wage disparity between different racial groups. The Industrial Conciliation Act dealt only with collective labour rights; individual rights were dealt with in a Wage Act in 1925.

Wiehahn Commission

This dualistic system of labour relations—one for blacks and the other for whites, "coloureds" and Indians (although the latter groups were also discriminated against)—lasted until the beginning of the 1980s. In 1977, the government appointed the Commission of Enquiry into Labour Legislation, commonly known as the Wiehahn Commission that made significant recommendations for change, which changed the face of collective bargaining in South Africa.^[37]^: 488 It was tasked to examine the current legislation and make recommendations to maintain the peace in the labour system.^[37]^: 488 The Commission produced a six-part report, the primary recommendations of which were:

that full trade union rights be accorded black workers;
that job reservation be scrapped;
that a Manpower Commission be established; and
that the Industrial Court replace the existing Industrial Tribunal and be given extended powers.

In an attempt to give effect to these recommendations, significant amendments were made to the Industrial Conciliation Act (renamed the Labour Relations Act 28 of 1956), which with further amendments formed the legislative structure for regulating collective labour relations for the next 15 years.

The country's labour laws were thus largely "deracialised." All African workers who were not migrant workers could now join trade unions. The National Manpower Commission, a statutory body comprising representatives from employers organisations, trades and the State, which would meet to discuss economic and industrial policy, was duly established.

In recognition of the fact dispute-resolution mechanisms, thitherto inadequate, needed to be bolstered, the Industrial Court (predecessor of the present-day Labour Court) was duly established, too. The Industrial Court was largely hands-off in respect of collective bargaining, in which it did not think it had any place involving itself here.

The last change to be implemented as a result of the commission's findings was the removal of race-based job reservation, which was seen as having contributed to the unrest. These changes led to a tremendous growth in the trade union movement, which proved instrumental, especially in the 1980s, in the struggle against apartheid.

Labour Relations Act (1995)

The system in place up to the advent of democracy, "when South Africa was shaken to the roots by the transformation of the apartheid regime into a fully democratic constitutional order,"^[38] was very fragmented. There were numerous definitional problems, too. Given the prominent role played by trade unions in bringing down apartheid, and given "the rapid and large-scale movement of former union leaders and cadres into party politics and government, it is hardly surprising that much attention was given to labour rights m the new dispensation."^[38]

The right to fair labour practices, the right to bargain collectively and the right to strike were entrenched with a number of other fundamental rights in a new interim Constitution that came into force in 1993. Those rights remained entrenched in the final Constitution, adopted by the new democratic parliament on 8 May 1996. At that point, although all parties agreed that these fundamental labour rights should be given constitutional status (although there was some dispute about the extent of an employer's right to lock out), there was room for disagreement on the scope and content of those rights. The final Constitution provided that "national legislation may be enacted to regulate collective bargaining."

"From this cue," writes John Grogan, "the government set about preparing legislation to give flesh to the bones of the constitutional guarantees."^[38] The first step was to appoint a commission, under the chairmanship of Professor Halton Cheadle, to produce a draft Labour Relations Amendment Bill. This was accomplished six months later. The draft formed the basis of the new Labour Relations Act 66 of 1995, which appeared in its current form after "intensive debate"^[38] in the National Economic Development & Labour Council (NEDLAC), a body consisting of representatives of government, organised labour, and employers, including the Manpower Commission and the National Economic Forum. They started thrashing out a new framework, to deal comprehensively with both individual and collective labour law. Given the adversarial nature of the relationship between organised labour and employers up to that point,

this was a revolutionary development. Under the watchful eye of government representatives, and with their participation, management and labour were entrusted with the task of developing the draft bill into a uniquely South African product that at once satisfied the aspirations of labour and the reservations of management, and yet conformed to the letter and spirit of the Constitution and the requirements of the International Labour Organization (ILO), of which South Africa was now a member.^[39]

This produced the current LRA, "yet another turning point."^[40] One of the hopes of the drafters was to change the adversarial stance which tended to be adopted by unions and management under the old dispensation to a more co-operative one. The LRA created new institutions for encouraging union-management cooperation, and revamped old ones, "in the hope this would help transform and mature attitudes and bargaining styles."^[40]

Sources

Common law

The common law of South Africa, "an amalgam of principles drawn from Roman, Roman-Dutch, English and other jurisdictions, which were accepted and applied by the courts in colonial times and during the period that followed British rule after Union in 1910,"^[41] plays virtually no role in collective labour law. Initially, in fact, employment law, or "the law of master and servant," was regarded as a branch of the law of lease. As such, the common law did not concern itself directly with collective bargaining; its focus instead was on the rights and duties of individual employees and employers, as reflected in the contract on which their relationship was based. The law did not recognize claims by employees which had not been conferred by agreement. Although the role of the common law is minimal, therefore, the common-law contractual relationship between employer and employee underpins collective labour law in general and collective bargaining in particular.

Constitution

Legislation therefore is pivotal. The Constitution, however, is more pivotal still. Section 23 enshrines the right to "fair labour practices," while section 18 provides that "everyone has the right to freedom of association." The right to strike, furthermore, has been explicitly constitutionalized.^[42] The Constitution also provides not only for the right of every worker "to form and join a trade union,"^[43] but also for the right of every trade union "to form and join a federation,"^[44] like COSATU. Similar rights are granted to employers and employers’ associations as well.^[45] The right to collective bargaining is constitutionalized, with a mandate for national legislation to regulate it.^[46] More controversially, the Constitution also provides that "national legislation may recognize union security arrangements contained in collective agreements."^[46]

Labour Relations Act

Collective bargaining is one of the ways in which the LRA gives effect to section 23 of the Constitution. It is also an important part of freedom of association. Among the first of the LRA's aspirations, listed in the Preamble, is "to regulate the organisational rights of trade unions." A trade union without organisational rights is not much of a trade union. Organisational rights allow the trade union to access the workplace, etc.

The Preamble also describes as a purpose of the LRA the promotion of collective bargaining, and the regulation of the rights to strike and to lock out. It seeks also to advance "the democratization of the workplace" by involving employees in decision-making through workplace forums, although these have not proliferated.^[47]

The LRA defines as an "employee" any person (excluding an independent contractor) who

works for another person or the State;
is entitled to receive remuneration for such work; and
assists in conduct of the business.

"Trade union" is defined in the LRA as an association strictly of employees,^[48] whose principal purpose is to regulate relations between employees and employers. The trade union must act in the interests of its members. Trade unions also support individual members with individual disputes. A trade union must have an address in South Africa, and its name must not be so similar to that of another union "that it is likely to mislead or cause confusion."^[49] Other requirements are set out in section 95.

Excluded from the application of the LRA are the members of

the National Defense Force;^[50]
the National Intelligence Agency;^[50] and
the South African Secret Service.^[50]

Freedom of association

Freedom of association, "one of the cornerstones of liberal democracy,"^[51] is also one of the basic principles of labour law, reflected in several ILO Conventions,^[52] in the LRA and in the Constitution.^[53] Freedom of association "stems from a basic human need for society, community, and shared purpose in a freely chosen enterprise [...] protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in a society."^[54] In short, people have the right to associate with others in order to defend and protect their common interests. This constitutes "both an individual and a collective human right."^[55] In addressing the individual facet of freedom of association, the Supreme Court of Canada, in Lavigne v Ontario recognized that "the essence of freedom of association is the protection of the individual interests in self-actualization and fulfillment that can be realized only through combination with others."

"However," writes Mpfariseni Budeli,

freedom of association is important not only to facilitate effective participation in civil and political society. It is equally important in the field of social and economic activity and is particularly significant as a basis for securing trade union freedom from interference by the employer on the one hand and the government on the other.^[56]

Freedom of association in the workplace may be defined as "those legal and moral rights of workers to form unions, to join unions of their choice and to demand that their unions function independently."^[57] It also includes the right of workers to participate in these unions’ lawful activities. "Freedom of association must therefore be seen," according to Budeli, "as the foundation of the collective bargaining process,"^[58] which contributes to ensuring fairness and equity in labour matters, and to facilitating orderly and stable industrial relations.^[59]

Freedom of association is the foundation of the collective-bargaining process. Before a group or collective may engage in collective bargaining, it is necessary that legal protection be extended to that group or collective. Legal measures are also necessary to protect the rights of people to belong to a group or collective. This is what freedom of association is all about: the legal protection of the freedom of persons to join a collective entity. The law, therefore, both permits people to join trade unions, and also protects their right to do so.

The ILO Committee of Experts has provided "what can be regarded as the correct approach concerning freedom of association and social policy."^[60] In the committee's view, freedom of association should be guaranteed in such a way as to allow trade unions to express their aspirations, and so as to provide an indispensable contribution to economic development and social progress.

The Constitution grants a general right to freedom of association to "everyone," as well as explicitly and specifically to trade unions.^[61] Section 23 of the Constitution protects the right of employees to form and join a trade union and to participate in the activities and programmes of that union. Freedom of association does not apply only to employees, however; the employer's freedom of association is protected, too: Section 23 also protects the right of employers to form and join employers’ organisations, and to participate in the activities and programmes of such organisations.

Both trade unions and employers' organisations have the right

to determine their own administration programs and activities;
"to organize; and
"to form and join a federation."

Finally,

every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this chapter the limitation must comply with section 36(1).

While the Constitution lays emphasis on the importance of freedom of association, the LRA emphasizes, protects and gives concrete content to this foundational right. The LRA recognizes the right of trade unions to organize themselves. Membership of a trade union is subject to the constitution of the trade union.^[62] This means that a union may determine, in its constitution, what types of employees may become members of the union, and what types of employees are disqualified from membership. Unless an employee qualifies for membership in terms of the union's constitution, he is ineligible for membership. This principle has its limits. A trade union which attempts, through its constitution, to limit its members to persons of a certain race or sex could find such a provision ruled invalid; "it would certainly not be registered in terms of the LRA."^[63]

Section 4 does not only protect the right to join and form a union. It also grants members of a union the right to participate in the affairs of the union. As a member of a trade union, an employee has the following rights:

to participate in the union's lawful activities;
to participate in the election of any of the union's office-bearers, officials or trade-union representatives;
to stand for election, and be eligible for appointment, as an office-bearer or official, and to hold office if elected or appointed; and
to stand for election, and be eligible for appointment, as a trade-union representative, and to carry out, if so elected or appointed, the functions of a trade-union representative in terms of the LRA or any collective agreement.

Again, these rights are subject to the constitution of the union. If the constitution of a union requires that the nomination of a candidate as union office-bearer be signed by ten members in good standing, and also that the election be by means of a secret ballot at the union's annual conference, these provisions of the union constitution must be complied with.

The LRA specifically grants employees the right to freedom of association,^[64] and protects both employees and people seeking employment,^[13] should this right be infringed by the employer. Section 5 of the LRA prohibits a wide range of actions which infringe the right to freedom of association in section 4. In terms of section 5(1), "No person may discriminate against an employee for exercising any right conferred by this Act." Examples of such discrimination would include an employer's dismissal of an employee, or failure to give an employee a discretionary annual bonus, because the employee joined a trade union, and an employer's resort to harassment against an employee because that employee has been elected as a trade-union representative.

The general protection of section 5(1) is complemented by section 5(2), which prohibits certain specific types of conduct that would undermine freedom of association. In terms of section 5(2)(a), no person may require an employee

not to be a member of a trade union;
not to become a member; or
to give up membership.^[65]

The LRA grants the right of freedom of association to employers as well.^[11]

Section 5(2)(b) provides that no person may prevent an employee (or a prospective employee) from exercising any right in terms of the LRA, or prevent an employee from participating in any LRA proceedings. For example, where an employer prevents an employee from standing for election as a trade-union representative, or where he threatens a union representative with dismissal because the representative is representing a union member at a disciplinary hearing, the employer would be acting unlawfully.

In terms of section 5(2)(c), employees or job seekers may not be prejudiced because of their trade-union membership, their joining a trade union, their participation in the lawful activities of a trade union, or their disclosure of information that they are entitled or required to disclose.

Section 5(3) prohibits an employer from attempting to persuade or tempt an employee into surrendering rights granted in terms of the LRA. The employer may not, for example, offer to promote the employee, or promise a wage increase, on the condition that the employee surrender rights accorded him by the LRA.

Section 5(4) provides that any contract of employment that limits freedom of association, either directly or indirectly, is regarded as invalid—irrespective of whether or not the contract was concluded before the LRA came into effect.

In terms of section 187 of the LRA, it will be an automatically unfair dismissal if the employer, in dismissing an employee, acts contrary to the provisions protecting an employee's right to freedom of association.

The protection of freedom of association, then, has two aspects:

Employers and employees must be protected against state infringement of the right. If the legislature enacts legislation that infringes the right, it may be challenged on the basis that it is in conflict with section 23 of the Constitution (South African National defense Union v Min of Defense and another).
Employees’ freedom of association should be protected against attempts by the employer to infringe this right. It is in this regard that the LRA plays an important role.

Although the right to freedom of association is not only guaranteed in terms of the LRA, but also in terms of the Constitution, the scope of this right has not been tested. The question has arisen, however, of whether or not groups excluded from the application of the LRA,^[66] such as the Defense Force, are entitled to form and join trade unions, based on their constitutional right to freedom of association. The issue came before the Constitutional Court in SANDU v Minister of Defence. The court found that, although uniformed members of the South African Defense Force, the Secret Service and the Intelligence Service are excluded from the protection of the LRA,^[66] they may claim the right to freedom of association under section 23 of the Constitution.^[67]

Section 4 of the LRA states that all employees have the rights set out in that section. Section 4 therefore applies to senior managers as well. This may in some circumstances, "and does,"^[68] cause problems both for employers and for the managers themselves. A senior manager involved in the formulation of an employer's approach to the annual wage negotiations (including its "final offer") may not be able to perform his functions properly if he is also a member of the union sitting on the other side of the bargaining table. It might be difficult, too, for the manager not to divulge confidential information, bearing on the bargaining process, to the union.

This issue arose for decision in the case of Independent Municipal and Allied Trade Union v Rustenburg Transitional Council, where the Labour Court declared unconstitutional a prohibition on senior managers holding executive positions within a union. The court indicated, however, that there are limitations to the scope of section 4. It pointed out that, in terms of common-law principles, an employee owes an employer a "duty of fidelity"—a duty to act in good faith. Because of the conflicting aims of trade unions and employers, the joining of a union and participation in its affairs may, in terms of common-law principles at least, and especially in the case of senior managerial employees, breach this duty of fidelity.

Common-law principles have been amended by the Constitution, and especially by section 4 of the LRA. The court in IMATU stated that the rights granted in section 4 are "unequivocal and unconditional," but that they are not unlimited. Employees, including senior managers, are entitled to join trade unions and take part in their affairs, but this does not relieve them of their contractual obligations to their employers. If, for example, an employee takes time off without permission to attend to union affairs, the employee may be disciplined on the basis of misconduct. If a senior employee, part of whose job it is to conduct disciplinary enquiries, refuses to undertake this task when union members are disciplined, this will amount to incapacity.

A senior employee who has access to confidential information of the employer must also, the court added, tread carefully when conducting trade-union business, and ensure that this information is not disclosed.

In FAWU v The Cold Chain, where an employee was offered a managerial position as an alternative to retrenchment, on condition that he no longer participated in the activities of the union, he refused and was retrenched, and the court found his dismissal to be automatically unfair, holding that there was nothing absurd in permitting a senior managerial employee to participate in the activities of a trade union—provided that the employee complies with his contractual obligations.

In Kroukam v SA Airlink, the court held that Kroukam's dismissal was automatically unfair in terms of section 187(1)(d) of LRA, because he had been dismissed for union activities and for initiating litigation against the company on behalf of his union. The court, in delivering its verdict, cautioned against the argument that participation in trade-union activities destroys the trust relationship between employer and employee; such an argument is unacceptable on policy grounds.

Managerial employees, therefore, must balance the right to freedom of association with their common-law duty to act in good faith towards their employers. If a manager, for example, divulges information to the trade union that he acquired by virtue of his managerial position, he may be disciplined.^[69]

Sections 6 and 7 of the LRA grant and protect employer rights to freedom of association in terms similar to those granted to employees: to form, join and participate in the activities of employers’ organisations.

Union security arrangements

The Constitution allows for "union security arrangements contained in collective agreements."^[70] There is no firm definition of the term "union-security arrangements," but it is generally viewed as a generic term for a collective agreement between an employer or employers’ organisation and a trade union or trade unions, in terms of which union membership, or alternatively the payment of trade union subscriptions, is a condition of employment for all employees. Clearly this infringes upon an employee's right to freedom of association. Union security arrangements therefore require compulsory union membership, or compulsory payment of a union subscription.

In the South African context, the term "union-security arrangements" refers to the so-called "closed-shop" and "agency-shop" agreements. The only limits set in the Constitution are that such agreements must

be contained in a collective agreement; and
comply with the general limitations clause of the Constitution.^[71]

Controversy

The reason for these agreements relates to the nature and practice of collective bargaining. Under certain circumstances, employees who are not members of a trade union will be bound by the provisions of an agreement entered into by the union. In other circumstances, the employer may, in the interests of administrative convenience, extend the provisions of a collective agreement to non-union members. In effect, employees who are not members of the trade union may derive benefits from a collective agreement entered into by a union. "Understandably,"^[72] unions have reservations about this state of affairs. These non-union employees are sometimes called "free riders," because they derive benefits for free: They do not pay union subscriptions, but they still obtain the benefits of the union's collective bargaining. This is the main argument in favour of forcing employees either to belong to a union (in the case of closed-shop agreements) or to pay a fee (in the case of agency-shop agreements).

Those who support union-security arrangements argue that they are necessary to avoid free riders. Furthermore, there is a view that they encourage "responsible" unionism.^[73] They support collective bargaining by aiding the development of strong and representative trade unions. Such arrangements are said to give union organizers a sense of security, and to enable them to devote themselves to the long-term interest of their members, "instead of collecting subscriptions and trying to persuade reluctant employees to join."^[74] For some, the main justification for union-security arrangements is that they add to the power of the unions during the collective-bargaining process, creating a more effective counterbalance to the naturally superior economic power of the corporate employer. This they do by preventing the defection of members during wage bargaining which may lead to strike action.^[74]

There may also be some benefit in such arrangements for the employer. If all employees belong to one union (or contribute to that union), the employer need only deal with that specific union. As a collective-bargaining relationship grows, a certain pattern and consistency of collective bargaining can thus be formed.

On the other hand, those who consider that the unions already possess monopoly status and excessive power see union security arrangements, particularly the closed shop, "as a main cause of undesirable state of affairs at the workplace."^[75] The main arguments against union security arrangements are,

in the case of closed-shop agreements, that they give more power to the unions, since the union controls the pool of applicants for the post;
in the case of agency-shop arrangements, that workers who are members of minority unions end up paying double subscriptions (one for their union and one for the representative union); and
that union security arrangements, particularly closed-shop arrangements, infringe the right not to be a member of a trade union or the freedom not to associate, which is an intrinsic part of the right of freedom of association.^[76]

The two ILO Conventions on freedom of association and collective bargaining do not make any express reference to the notion of union-security arrangements. The ILO Committee also left it to the practice and regulation of each state to authorise and, where necessary, to regulate the use of union-security clauses in practice.^[77]

According to the committee, union security arrangements are compatible with the ILO Conventions on freedom of association, provided that they are the results of free negotiations between workers’ organisations and employers. As long as this is the case, then, the international body will not interfere with them, provided that the law of a particular country does not go so far as to impose them generally and make union membership compulsory. However, when trade union security clauses are imposed by the law itself, then the right to join an organization of one's own choosing is compromised, and those provisions will be incompatible with the ILO Convention. Accordingly, ILO member states are at liberty to include or not to include in their constitutions and labour legislation provisions regulating union-security arrangements.

Despite the arguments in favour of agency shops and closed shops, it would appear prima facie that these types of agreement do infringe the employee's freedom of association. Particularly in the case of a closed shop, an employee is no longer free not to associate: The employee must belong to a specific trade union. Employees are no longer free to choose which union they want to belong to, or even if they want to belong to a union at all. If the employee is not a member of a particular trade union, or if he loses his trade-union membership in terms of the union's constitution, the employee may end up out of a job.

It has been argued, accordingly, that the closed-shop agreement amounts to an infringement of the employee's freedom of association, as protected by sections 18 and 23 of the Constitution. The situation is different in the case of agency shops: The employee still has the freedom to choose whether or not he wants to belong to the union which is party to the collective agreement—"that is if the employee wants to belong to a union in the first place."^[78]

Industrial action

The right to strike is clearly protected in South Africa through the Constitution, which guarantees that "every worker has the right [...] to strike."^[79] The Constitution does not give employers the right to lock out employees.^[80] Employers’ right to lock-out is implied in the Constitution's express protection of the right to bargain collectively.^[46] The LRA provides, however, in section 64(1), that every employee has the right to strike, and that every employer has recourse to a lock-out.

In the past few years, South Africa has seen a high level of industrial action. The Department of Labour has reported that working days lost to work stoppages in 2010 were the highest ever, with approximately 20,674,737 working days lost from about 74 work stoppages; in 2009, there were only 51.^[81]

Notes

[1]
s 23(1).
[2]
2003 (24) ILJ 305 (CC).
[3]
2003 (24) ILJ 95 (CC).
[4]
(1999) 20 ILJ 2265 (CC).
[5]
Section 83A of the BCEA contains a provision similar to section 200A of the LRA.
[6]
LRA s5.
[7]
s 79.
[8]
"Increase to BCEA minimum threshold (with effect from 1 July 2013)".
[9]
Nagel, CJ (2016). Commercial law. Pretoria: Lexis nexis. pp. 652–657. ISBN 9780409123968.
[10]
s 9.
[11]
s 6.
[12]
s 6(3).
[13]
s 5.
[14]
s 7.
[15]
s 6(1).
[16]
s 7(2).
[17]
See EEA, Schedule 4.
[18]
s 19.
[19]
s 20.
[20]
EEA, s 16.
[21]
Act 66 of 1995.
[22]
s 185.
[23]
s 192(1).
[24]
s 192(2).
[25]
s 186(1)(a).
[26]
s 186(1)(b).
[27]
s 186(1)(c).
[28]
s 186(1)(d).
[29]
s 186(1)(e)-(f).
[30]
186(1)(e).
[31]
See LRA, ss 197, 197A.
[32]
s 186(1)(f).
[33]
McGregor and Dekker Labour Law Rules! p. 159.
[34]
s 213 of the LRA.
[35]
McGregor and Dekker Labour Law Rules! p. 160.
[36]
Grogan Collective Labour Law 4.
[37]
Pretorius, Fransjohan (2014). A History of South Africa: From the Distant Past to the Present Day. Hatsfield, Pretoria: Protea Book House. ISBN 978-1-86919-908-1.
[38]
Grogan Collective Labour Law 6.
[39]
Grogan Collective Labour Law 7.
[40]
Grogan Workplace Law 308.
[41]
Grogan Collective Labour Law 11.
[42]
s 23(2)(c).
[43]
s 23(2)(a).
[44]
s 23(4)(c).
[45]
s 23(3)-(4).
[46]
s 23(5).
[47]
Steadman, Felicity. "Workplace Forums in South Africa: A Critical Analysis." Indus. LJ 25 (2004).
[48]
If the association is one of students, for example, it clearly does not meet this definition.
[49]
s 95(4)
[50]
s 2(a).
[51]
Budeli, M. "Understanding the right to freedom of association at the workplace: components and scope." (2010) 16.
[52]
Two fundamental ILO conventions on freedom of association have been ratified by South Africa: Convention 87 and Convention 98.
[53]
See South African National Defence Union v Minister of Defence & Another (1999) ILJ 2265 (CC); SANDU v Minister of Defence & Another [2003] 9 BCLR 1055 (T).
[54]
Budeli "Understanding" 16.
[55]
Budeli "Understanding" 19. "The right to associate concerns an individual as an active participant in social activities and it is in a sense a collective right in so far as it can be exercised by a plurality of individuals" (19–20).
[56]
Budeli "Understanding" 17.
[57]
Budeli "Understanding" 18, citing Olivier "Statutory Employment Relations in South Africa" in Slabbert, Prinsloo, Swanepoel and Backer (eds) Managing Employment Relations in South Africa (1999) 5-60.
[58]
Budeli "Understanding" 20.
[59]
See DA Basson South African Interim Constitution Text and Notes (1994) 40.
[60]
Budeli "Understanding" 19.
[61]
ss 18, 23(2).
[62]
s 4(1)(b).
[63]
Basson Essential Labour Law 252.
[64]
s 4.
[65]
Again, it is worth emphasising that the protection of freedom of association accorded by section 5(2) applies also to prospective employees.
[66]
s 2.
[67]
Non-uniformed members of the Defence Force are civil servants; they fall under the LRA.
[68]
Basson Essential Labour Law 254.
[69]
Independent_Municipal_and_Allied_Trade_Union_&_others_v_Rustenburg_Transitional_Local_Council (2000) 21 ILJ 377 (LC).
[70]
s 23(6).
[71]
s 36(1).
[72]
Basson Essential Labour Law 286.
[73]
Haggard Compulsory Unionism, the NLRB and the Courts (1977) 13.
[74]
Budeli "Understanding" 31.
[75]
Budeli "Understanding" 32.
[76]
See Budeli "Understanding" 29-31 and the sources there cited.
[77]
See the Venezuela case (Case 1611).
[78]
Basson Essential Labour Law 287.
[79]
23(2)(c).
[80]
Section 27(5) of the Interim Constitution, 1993, included the right of employers to have "recourse to a lock-out," but this right was not included in the final Constitution.
[81]
Department of Labour Annual Report, Industrial Action Report^{[permanent dead link]} (2010) 3.

Parties

Labour Relations Act 1995 s 200A

Duties

Basic employment rights

Hours

Sundays

Meal intervals

Maternity leave

Family-responsibility leave

Remuneration

Variations

Harassment

Sexual harassment

Other remedies

Medical testing

HIV/AIDS

Affirmative Action

Designated employers

Employment-equity plans

Common law

Labour Relations Act

History

Industrial Conciliation Act (1924)

Wiehahn Commission

Labour Relations Act (1995)

Sources

Common law

Constitution

Labour Relations Act

Freedom of association

Union security arrangements

Controversy

Industrial action

Cases

Legislation

Related Articles