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MRL3702 PORTIFOLIO EXAM QUESTIONS AND ANSWERS 2021
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MRL3702 PORTIFOLIO EXAM QUESTIONS AND ANSWERS 2021
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lOMoARcPSD|7704021NAME & SURNAME: Anthony Sterne
COMPANY NAME: RM Solutions
PORTFOLIO OF EXERCISES
- DIPLOMA IN LABOUR LAW -
INSTRUCTIONS:
This document contains all the modular questions from your course material. Your task is to
complete the relevant questions after attending each study block. The objective is to test your
level of understanding, establish problem areas in time and to assist with your examination
preparation.
SUBMISSION DATE:
To be submitted on the examination date at the examination venue.
This is an individual assignment. The assignment is compulsory and part of the programme
requirements.
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BLOCK 1
The following questions are compiled from the modules covered in block one.
MODULE ONE
Questions
(a) The common law contract of employment has often been described as a recipe
for exploitation. What view is this based on?
Early employment contracts and statutes were referred to as “Master and Servant’
laws, and although they imposed legal obligations on both employer and
employee, with criminal penalties for default, they were heavily weighted in favour
of the employer. The very nature of the terms, ‘Master’ and ‘Servant,’ gives
credence to this.
Worldwide labour law transpired as both common law, and the law of contract,
had shortcomings in that the playing field and balance of power was too in favour
of the employer. Additionally there was a need to incorporate certain human rights
that came into effect as countries developed constitutions.
This unbalanced situation meant that employers could exploit the employee in a
number of areas and thus the shortcomings of common law and contract law
meant that employees could be exploited in a number of ways, the following of
which would be the most evident:
• In the absence of minimum wage agreements, employers would be able to
grossly under pay and exploit this, as the prospective employee, who in
desperate need for work, would be “forced” to accept the rates on offer.
The desperate need for employment affects the very core of supply and
demand economic principles, thus favouring the employer rather
dramatically.
• The common law simply infers rights and obligations on the employee, the
manner of discharging these obligations, very much controlled by the
employer. With no regulation of working hours the employee would literally
be a ‘slave.’ And exploitation would be rife.
• The common law fails to give employees legal rights to demand better
working conditions and the very nature of freedom to contract rights, does
not discourage exploitation.
• Most significantly, the common law provides no effective protection against
termination of services and thus job security is essentially obliterated. The very
nature of the law of contract would allow an employer to terminate the
contract immediately for just about any breach, and the employee would
have no recourse to a remedy.
(b) Given that most aspects of the employment relationship (e.g. hours of work, sick
leave, protection against unfair dismissal etc.) are now regulated by statute, is
there any point to entering into a detailed written contract of employment?
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Although there is a plethora of statutes and legislation governing or determining the
employment relationship, the very nature of the workplace environment requires
flexibility. Hence legislation protects the employee from exploitation, by entrenching
basic rights and obligations, but by the same token offers the employer the option to
structure the workplace terms and conditions in order to have an effective and
productive business.
Thus a contract of employment avoids vagueness, ambiguity and confusion by
addressing issues that are not defined or set in stone by legislation. This in turn attempts
to avoid parties from being in a continual state of dispute, which would be disruptive
to the work environment.
Importantly, the very rights inferred by the various statutes and legislation, only apply to
the parties to an employment contract, that being the employee and employer.
(c) Name three kinds of dispute in which the terms of the individual contract of
service may be legally relevant.
• Restraint of trade
• Share Options
• Relocation costs
MODULE TWO
Questions
(a) In what respects has the BCEA limited the contractual freedom of
employers and employees?
The BCEA sets forth a minimum standard on a number of key issues relating to the
employment relationship. The contractual freedom is impeded in that only terms or
conditions that is more favourable than those laid down in the BCEA can supersede
the BCEA.
So although an employee or potential employee might be willing to accept terms
or conditions that are less favourable than those laid down in the BCEA, it is not
permissible to contract outside of the law and this may render the contract void.
(b) May an employer make an applicant’s undertaking that he will not claim
pay if he is off sick a condition of appointment?
No. The pay for sick leave may however be reduced by agreement provided that the
number of days allowed is increased commensurately. In addition the days wage must
be at least 75% of the wage ordinarily payable had the employee worked on that
day.
Not withstanding the above the employee is bound by the BCEA as well as
individual companies Policies and Procedures whereby the failure to observe
certain procedures would effectively mean the forfeiting of the right to payment,
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e.g., where the employee fails to provide a sick certificate after two days absence
(c) What remedies are available to an applicant for employment if an
employer insists that he should work hours longer than those permitted by
the BCEA?
The first issue is if an applicant for employment is an employee and therefore entitled
to rights under the act. Section 79(1) expressly widens the definition of “employee” to
include applicants for employment, thus all rights inferred under Part C, relating to the
protection of employees against discrimination, are applicable to applicants for
employment.
Where an employer is insisting an employee to work longer hours than those permitted
by the BCEA, and the employee would probably refuse to take up employment, said
employee could turn to the CCMA or a Council, if the parties are in the registered
scope of that council.
The employee would seek to exercise their rights as inferred by subsection 2(c) (i);
Prejudice an employee because of a past, present or anticipated-
Failure or refusal to do anything that an employer may not lawfully permit or require an
employee to do;
The employee can further invoke subsection 3, No person may favour, or promise to
favour, an employee in exchange for the employee not exercising a right conferred
by this part………..
These two sections read together would give the employee the right to refer a dispute
for conciliation, should the dispute remain unresolved it may be referred to the labour
court for adjudication. Does the employee have the right to strike, as this matter
cannot be referred for arbitration???
(d) Which basic conditions of employment may be changed by individual
agreement?
Individuals may agree to certain variations on the BCEA. Where there is a collective
agreement however that would supersede the individual agreement. The following
are terms and conditions of an individual contract that may be altered by a written
agreement:
• Extension of ordinary hours where employees serve the public
• Paid leave in lieu of overtime
• Compressed working week
• Reduction or suspension of meal intervals
• Reduction in daily rest periods, where employee resides on premises
• Reduction in weekly rest periods
• Time off in lieu of Sunday work
(e) Which basic conditions of employment may be changed by collective
agreement?
Collective agreements can be concluded in two spheres, within the scope of a
bargaining council or concluded between a majority union and the employer or
employer’s organization.
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