Faculty of Law

INTRODUCTION TO LABOUR LAW

CHAPTER 1
INTRODUCTION
• The regulation of labour and employment relations entered a new arena 20 years
ago when the Labour Relations Act 66 of 1995 (LRA) came into force.

• The LRA introduced, among other things, a new labour dispute resolution system in
the form the CCMA, the Labour Court (LC) and Labour Appeal Court (LAC).

• While the LRA can be rightly regarded as the cornerstone of SA labour regulation, it
is not the only law impacting on employment and labour relations in SA.

• The Constitution and other legislation such as the Basic Conditions of Employment
Act (BCEA), Employment Equity Act (EEA), Skills Development Act (SDA) and the
Occupational Health and Safety Act (OHSA) all impact on labour relations.
• The relationship between an employer and an employee is an important one.

• This relationship is regulated by law.

• The first relationship regulated by the law is the relationship between an individual
employer and employee. This relationship comes to existence when the contract of
employment is concluded between the parties.

• Nature of the relationship (the relationship is characterised by) – unequal

distribution of power (bargaining power of the individual employer is much more
stronger). As a result of this, the individual employee’s can be exploited by their
employers.

• The contract of employment contains duties and obligations which are formulated
by the employer – contract is not the product of true negotiations between the
parties.
• Consequently, the State has to intervene to protect employees by providing
minimum-standards legislation:
 LRA – protection of employees against unfair dismissals;
 BCEA - establishes minimum conditions of employment;
 EEA – protection of employees against unfair discrimination; and
 OHSA - obliges employers to adhere to minimum safety requirements.

• Often more effective protection is given to employees as a result of effective

trade-union organisations and collective bargaining.
• In South Africa, the law embraces trade unionism and collective bargaining
as an effective means of the balancing of power.
• The Constitution and the LRA provide for the right of freedom of association
and the LRA provides organisational rights for trade unions, structures for
collective bargaining and provides for the enforcement of collective
agreements.
• Therefore, labour law can be defined as that branch of law which regulates the
relationship between individual employer and employee (individual labour law),
the relationship between employers, employers’ organisations and trade unions
(collective labour law) and the relationship between the State, employees,
employer, employers’ organisations and trade unions.

individual labour law

employer employee

employers
collective labour law

employers’ organisations trade unions

THE DEVELOPMENT OF LABOUR RELATIONS AND LABOUR LAW IN SOUTH AFRICA

• The right to freedom of association is the cornerstone of labour relations in SA = it

enables the working class to unite and freely form organisations to effectively
engage in combined efforts to acquire additional rights in the workplace.

• Without such an association, workers would not be able to exercise their collective
power to engage with their establishments and to challenge certain governmental
policies.

• The right to freely join a trade union was not always an established right – the
influence of the collective effort of workers was realised early only by mining
companies and later by the National Party government.

• The suppression of unionism was driven by a profit and regime driven agenda.

• The historical development of our labour relations must be considered in each

historical period.
1. Period of colonialism – agricultural working class

• Prior to the discovery of minerals in Southern Africa – economic activities in SA primarily

comprised of agriculture.

• Many workers worked on white-owned farms – they were subjected to harsh working
conditions and only worked for the right to settle on the farm.

• Nature of employment relationship – “master and servant” – Master and Servant Act.

2. The mining industry – industrial working class

• Discovery of diamonds and gold led to the rapid development of the mining industry in SA.

• Mining industry consisted of capitalist companies with main goal of maximization of profits –
thus, requiring large scale, cheap black labour.

• Mine and Works Act of 1911; Native Labour Regulations Act; Industrial Conciliation Act.
3. The apartheid government – black working class

• In 1948, the National Party government came into power and introduced their
agenda of racial exclusion.

• During apartheid, the government relied on labour legislation to further their

political policies and secure white prosperity.

• Repealed the Industrial Conciliation Act of 1924 and passed the new Industrial
Conciliation Act in 1956.

• Government passed racially exclusive legislation – tougher control of black

labourers – jobs reserved for white workers – prohibited registration of black trade
unions.

• Post 1976 – freedom of association granted to all persons (Wiehahn Commission

recommendation), regardless of race and sex = registered black trade unions
recognized by law and could represent workers freely.
3. The apartheid government – black working class

• Registered black trade unions recognized by law – freely represent black workers at
the workplace and industrial councils.

• The government made comprehensive changes: dissolution of job reservations for

whites, the formation of a National Manpower Commission and the establishment
of an Industrial Court to resolve industrial litigation.

• Most of the Wiehahn Commission recommendations were accepted by the

National Party government and thus amended the Industrial Conciliation Act of
1956. In 1981, the name of the legislation changed to the Labour Relations Act 28
of 1956.
4. Democratic dispensation – liberated working class

• SA transitioned into a Constitutional democracy during the early 1990’s, resulting in

the enactment of the Interim Constitution in 1993.

• The Constitution changed our legal system and incorporated a new labour
dispensation – relevant labour legislation had to be coherent with new
Constitution.

• Labour Relations Act was enacted in 1995.

• Final Constitution passed in 1996.

• Various other forms of legislation developed during this period – BCEA (1997), EEA
(1998).

• Labour Relations Act – developed through amendments in 2002 and 2014.

 The Constitution

International
Labour THE SOURCES OF LABOUR LAW Legislation
Standards

Common Law Collective Agreements

1. THE CONSTITUTION

• The Constitution is the supreme law in this country. It provides the framework
against which all other law (legislation and common law) must be tested.

• Section 23(1): “Everyone has the right to fair labour practices.”

• Section 23(2): “Every worker has the right to form and join a trade union. Every worker has the right to
participate in the activities and programmes of a trade union. Every worker has the right to strike.

• Section 23(3): “Every employer has the right to form and join an employer’s organisation. Every
employer has the right to participate in activities and programmes of an employer’s organisation.”

• Section 23(4): “Every trade union and every employer’s organisation has the right to determine its own
administration, programmes and activities. Every trade union and every employer’s organisation has the
right to organise. Every union and employer’s organisation has the right to form and join a federation.”

• Section 23(5): “Every trade union, employer’s organisation and employer has the right to engage in
collective bargaining. National legislation may be enacted to regulate collective bargaining.”
• The resulting scope of section 23 of the Constitution is exceptionally
comprehensive, protecting both employers and employees in the formation of
employment relations.

• These constitutional rights form the basis of labour relations in South Africa.

• The Constitution thus forms the ultimate and primary source of labour legislation in
South Africa and any promulgated legislation must be consistent with the
Constitution.
2. THE INTERNATIONAL LABOUR STANDARDS

• South Africa is a member state of the International Labour Organisation (“ILO”) and
thus it acquires obligations from the ILO. This formulates an important source of
labour law within our legislative structure.

• The ILO was founded under the Treaty of Versailles in 1919, with the principle
purpose of regulating international labour matters and the settings of standards.

• The setting of standards entails the adoption of conventions and recommendations

by the International Labour Conference of the ILO. The adoption of these
conventions creates various legal consequences and obligations for the member
states that ratify them.

• The ratifying states are obliged to take such action that would be necessary to
affect the conditions of the adopted convention. This would result in incorporating
the convention into national legislation.
• The international labour standards relate to a wide variety of universal labour
matters within the workplace.

• The international labour standards have a core focus on basic human rights,
minimum level of conditions of employment, the freedom of association,
industrial relations, occupational health and safety and the elimination of
discrimination.

• South Africa is a member state, thus it is bound by the conventions of the ILO.

• The LRA amongst others, thus give effect to these international labour
standards.
3. LEGISLATION

• Labour Relations Act 66 of 1995 – most important piece of labour legislation. It

entrenches the Constitutional rights of fair labour practices, freedom of association
and the right to strike.

• Basic Conditions of Employment Act 75 of 1997 – regulates fundamental

conditions of employment. It also regulates working hours, leave, remuneration and
factors such as child labour.

• Employment Equity Act 55 of 1998 – rectifies disparities in employment,

occupation and income, caused by injustices of the past, e.g. affirmative action.

• Skills Development Act 97 of 1998 – develops and improves skills of workforce.

• Skills Development Levies Act 9 of 1999 – establishes compulsory levies scheme for
the purpose of funding education and training in terms of the SDA.
• Unemployment Insurance Act 30 of 1966 – regulates compulsory insurance
scheme for employees, e.g. unemployed workers may receive monthly payment

• Occupational Health and Safety Act 85 of 1993 – makes provision for the health
and safety of people at work, e.g. regulates the use of plant and machinery in
construction and mining industries to ensure protection of third parties against
hazards to health and safety.

• Compensation for Occupational Injuries and Diseases Act 130 of 1993 – provides
for the compensation of disablement or death caused by occupational injuries or
disease sustained in the course of employment.
4. COMMON LAW

• The common law forms part of the national legal framework, and unlike statutes,
was never adopted through the legislative process.

• The common law, in broad terms, entails the development of Roman-Dutch, English
and customary law by the judiciary and subsequent formulation into South African
legal jurisprudence.

• Although the majority of our labour laws are contained in legislation, the South
African common law remains relevant.

• In the employment context, the common law implies certain terms into an
employment contract even though the parties have not inserted them. For
example, employees are under a common law duty to act in good faith in the
context of the employer’s business and refrain from misconduct.
5. COLLECTIVE AGREEMENTS

• Collective agreements are written agreements between trade unions, employers or

employers’ organisations.

• The LRA formulates a framework for collective bargaining, enabling employers or

their employer organisations and respective and respective trade unions to
determine wages, terms and conditions of employment and other matters of
mutual interest within a particular industry, e.g. manufacturing industry.

• Such collective agreements bind the parties and their members to the agreement
and supersede any other terms and conditions individually agreed upon by the
employer and employee.

• Collective agreements are an important source of labour law.