A Practical Guide to Labour Law Ninth Edition Authors JV du Plessis BALLBLLD (Unisa) Advocate of the High Court Emeritus Profesor of Mercantile Law MA Fouché Bluris LLB NHD PSE Aadvate of the High Court Profesor of Labour Lao Senior Comnisioner ofthe CCMA end bargaining councils @ LexisNexisCOMMON LAW[1] INTRODUCTION, 1.1 Background Labour Law is divided into individual and collective labour law, Historically, the employ rent contract was regarded as a form of leaxe (sce Chapter 2) and, in keeping with the individalisie nature of Roman-Datch law, dealt with only the individual aspecis ofthe em ployment relationship, This relationship fell squarely within the private domain and, with the exception of employment in the cil service, was regulated by the common la rules soverning contracts Collective labour law, on the other hand, does not have its roots in Roman-Duteh law bus regulated largely by lesislation. Collective labour law concerns itself withthe relation. ships between employers and wade unions, bexween employes ine se and between trade unions inte se The product of eollective barguning, i. negotiations between trade unions and employers or employers’ organisations, collective agreements which take precedence over the promsions contaned i individual contracts of etaployment . The individualistic and voluntary’sights-based regulation of the employment relationship has changed dramatically since the emergence of trade unionism and the increased intr ‘enon of the State i the sphere of employment by means of legislation, Although the Port of entry into the employment relationship remains the common law contract of eth ployment, regulated mostly by principles derived from Private Law, it may well be argued that he conduct ofthe paris fs regulated largely Dy state law and rules created in terms of those statutes, such a8 the Basie Conditions of Employment Act (BCEA) and collective agreements in terms of the Labour Relations Act (LRA) It is for this reason that some authors question the nature ofthe modern employment relationship, iit purely contrac: ‘wal (a consenstal) relationship or should it be viewed as one of status? A contractual relasionship is one in which the parties enjoy great freedom to reach agreement on the content of the rules that are to govern thei respective rights and obliga tions in tems ofthe contract entered into, Drawing on the analogy of marrage, the status view holds that, once the partes have voluntarily entered into the relationship, the law automatically imposes rights and duties on them without their having much say in formu lating the rules that will govern their relationship. To a large extent the regtlation of the employment relationship has moved into the pubic law domain, although fs origins were and remain in Private Lv Common law places the individual employee in a weak position vis-is his employer and offers litle oF no protection o the employee. Common law, for example, docs not provide for maximum working hours and patd leave. The common law rule of ao works ho pay prevail. In terms of common law a job applicant, having the freedom to contract, has the choice to commit himself contractually to work for, for example, seven days a week, 15 hours per day and with no provision for paid holiday or sick leave. Labour legisation is thus necessary to provide better protection for an employee and to caunter this kind ofMat od ‘s9[nx pur sa9.n0s Jo 19p4o Te "yS a80up Jo aeDAOx9 ap UO su Sea soyer yoru uonepsiay ase on panonre 43 me] SoU ep sommMNOD ypu ~ SUI Jo UN on uur poun we sigur sou “span. cy rosmoud ayp pue S940 pantinp ‘1 Sopued #1 saqnu 0 sonied om dq o1ay pasmiua dterunjon “De ‘Geupi0 we se (wncnafo enmpuod wexmom)) Yenu09 -uawudoydas ayy omoqa ma y01 90nd seu ay yshowpyE APA poste ot st amg oup ney stesu sm 9 suojswosd peuoniins ped pur woIntroduction 5 It's thus necessary, in every situation where a multiplicity of laws governs the employment relationship, to determine which of those laws take precedence. An overview of the hierarchy eee eae labour laws is provided here to facilitate an understanding of which rules apply Bill of Rights Core righisin terms of the BCEA’ and he national mini ‘mrum wage in terms of the NMWA, Bargaining council collective agreements Collective agreements (other than counell agreements) “Sectoral and ministerial determinations Tndividal agreements {contracts of employment) From the above diagram the following is clear E*Slommnon ew applies as the default option where no odie: rule applic im « partion jndividwal eantracts of employment override the common law; the BCEA takes precedence over common law and a contract of employment, Howes), aoe contiact of employment provides more favourable conditions of employment than deans Contained in the BCEA, the contract will prevail and not the BCEA: collective agreements concluded outside a bargaining council take precedence over ceitaion law priniptes, contracts of employment and the BCEA (except for the core rights): “The cove right a dhe lowing consined i the REA the arrangement of woking ime With ue aa eee ley and fanty reponse (7); the maximum of 45 hours ordinary wong Tezaro Mea yt protection florea to employees who perform real night work (17) time er week (9); Ie Petree s 22-24), materi leave (2), paren leave (+254), adoption (2h the saucer Mecning parental ave (© $50); the enement wo anual lene (2), Neve (#58) an cova clccve agreement be reduce w@ tr weeks pet Year, and hs Pro although annual ee yor toe BCEA relating to the prohibition of eld labour and forced labour, Bon soning clung vo parental, adoption and conmiwioning parental eave have Dot et eo a cot clay print une 201). Once ure Labour Lawe Amendment Act 10 of bis comes into operation these prossons will app 2 Si(e) ofthe BCEAA Practical Guide to Labour Lae * mintsterial determinations and sectoral determinations take precedence over the com= ‘mon lavs, contracts of employment and the BCEA; * collective agreements, concluded in a bargaining council take precedence over all the preceding provisions. A council collective agreement may, of course, not vary the core Tights contained in the BCEA, except that annual leave may be reduced to ovo weeks per * the core rights in the BCEA and the national minimum wage are subject only to constitu- | tional norms. A contract, collective agreement of sectoral determination may deviate from the prescribed minimum, provided it is more favourable. ‘The following guidelines may prove useful when determining which set of laws apply Sizp I: Determine the agreed terms and conditions of employment, that is the employment conditions the employer and employee agreed upon in their contract of emplay ‘ment (whether verbal or writen), Siep 2 Determine whether the provisions of the BCEA apply. In the majority of instances the RCEA will apply, but in a few exceptional case all or some of the provisions of the BCEA do not apply, such as in the case of a person who earns in excess of the [BCEA threshold amount (determined by the Minister in terms of section 6(3) of the BCEA) or a senior managerial employee Step 3: Ifthe BGEA or some of its provisions are applicable, compare the relevant provisions with those contained in the contract of employment. The most favourable provision takes precedence. For example, if the employment contract provides for 22 days annual leave, it will prevail because itis more favourable than the 21 days provided for in the BCEA, Conversely, ifthe contract provides for 18 days’ leave, the BCEA takes precedence because ils provision of 21 days’ leave fg the minimum standard and is more favourable. Susp # Determine whether a ministerial or sectoral determination is applicable. I tis, the relevant prosisions of the BCEA and contract of employment can be ignored became | 1 determination takes precedence, regardless of whether itis more or less favour | able. A determination may, of course, not vary the core rights of an employee. If t | | does. the prosision in the determination varying a cere right i null and wad and the provisions of the BCEA in this regard will apply. Siep 5: Determine whether a collective agreement regulates the issue in question, Ifso, the collective agreement tahee precedence over all the other provisions, regardless of whether the provision in the collective agreement is more oF less favourable than any of the other provisions. A collective agreement may, of course, not vary the core rights of an employee, except that a collective agreement conclided ina ar gaining council may reduce annual leave to two weeks per year. Any provision in a collective agreement that varies a core right in contravention of the BCEA may be ‘ignored. The BCEA will prevail in such an instance. Sup & Ifa collective agreement is in existence, determine whether the agreement was con- | cluded in a bargaining council or at plant level, A council collective agreement always takes precedence over a collective agreement canchided outside bargain ing couneil Sup 7 If none of the above applies, refer to the common law rules. The above diagram does not reflect sector specific legislation, such as the Merchant Ship- ping Act 57 of 1951 and various statutes regulating employment in the public sector (e nursing, education, SAPS and correctional services). As a general rule, the sources in the 8. $49 of the BCEA 85190 of the LRAIntroduction diagram apply only ifone ofthe sector specie Aes dues not cater fora patculy raion srerior apecific Acts take precedence over the illustrated sources, but remain subor Tce othe Bll of Rights which remains the supreme law of the land. Furthermore, i 2 Greson inva sector specific Act (or any oer employment law) isin conflict with the Fijevant provisions inthe LRA, the LRA applies (s 210 ofthe LRA). Finally, the fact that common law appears atthe bottom of the hierarchy must not lead Oa eon that i is relevant. The contiiued relevance of the common lave, despite ane corte of to many other sources of Labour Law, can be ascribed to the fact that the Cecdition require the cours to interpret common law principles in accordance with con eae atuce thereby ensuring thatthe common lv retains its dynamic abibity to adapt sree pumping society. Furthermore, common law remains relevant because it provides the Fae veclern day contract of employment. It is in terms of common law that the i for Concluded and that the parties derive a number of rights and obligations, Com: soit sal regulates breach of contract and, to a large extents remedies for breach 0 rane eNeemination ofthe contract and a variety of other issues, The next chapter deals with ee errr contract of employment and, because the common law cannot be ignored, ieshould be studied with care. Questions 7 ; D \gor, We: 4 Question §—Q2- Ge an Cx pusiin ah Hho Youn Se Piety explain which of he follwing spptesin the event of confit berween their prove Br tne contac of employment and a collective agreement ey 32 the contract of employment and common lav @) ‘a acollective agreement and the Basic Conditions of Employment Act Q Question 2 Shoe Diy was employe asa factory worker at Unisex Clothing Manufacturers (Py) Ltd Pc a oo roner gonchuded a contract of employment sn terms of wih Billy wowl ae and ered to 21 consecutive days" annual lave. (This provision isin accordance aa os ofthe BCEA) Approximately two years after Bill's appointment he eae nett Textiles Workes Unto. Bau di won andthe comony (i he jae Morganton it belonged to) were paris (0 he bargaining coun foe employers oven pares to the council then negotiated a collective agreement which te der coeetve day annua leave Explain wheter Billy would be ented Bron 85 consecutive days annual leave. PS o Question 3 Jonas is an employee at a private security company He works sx days per weck Ines Jone an cmpesmployment he is required to work eightancehalf hours per day, he contra onal working Inu to a maximum of 45 hours per week and clght hens a dan'a secal determination, promulgated in term ofthe BCE ali sn Proves per day wean of 40 hours per week andl seven Tours per day. Which of these provisions Me applicable wo Jonas? Motivate your answer. P @ Question 4 John's contract of employment provided for better motor vehicle benef an ost Fer Johns conrad flectine agreement entered into between his employer and the union, When Jaina om the benefits as pe his contract, dhe employer refuses to gran hese ho fits, John ine welecie agreement. Jo fels hat thsi unfair because nothing Prevents Gp8 A Practical Guide to Labour Laws an employee and an employer from entering into a contract that provides better benefits than those provided for in a collective agreement. The agreement in question provides for ‘actual benefits and other conditions of employment rather than just the minima. Explain, ‘with reference to case law, which provisions should take precedente. (19) Hint See Ekushuleni Metropolitan Municipality Germiston and Van Rooyen (2002) 28 IL] 1104 (ARB); The National Bargaining Council fr the Road Pright Industry & Another v Carlbank Mining Contract (Pty) Led & Another unreported, JA 52/10, 20 March 2012 (LAC).