100% satisfaction guarantee Immediately available after payment Both online and in PDF No strings attached
logo-home
mrl3702-labour-law-notes. $2.82   Add to cart

Exam (elaborations)

mrl3702-labour-law-notes.

 9 views  2 purchases
  • Course
  • Institution

mrl3702-labour-law-notes.

Preview 4 out of 89  pages

  • June 20, 2023
  • 89
  • 2022/2023
  • Exam (elaborations)
  • Questions & answers
avatar-seller
lOMoAR cPSD| 11763056




LABOUR LAW NOTES
**** YOU BETTER PASS!!!!***

CHAPTER 1: OVERVIEW

GENERAL:

Labour law consists of two main components:

1. Individual labour law
2. Collective labour law

INDIVIDUAL LABOUR LAW:

• Includes topics such as the formation of the employment relationship, the content of the
relationship, and the termination of the relationship.
• The assumption here is that the employment relationship exists between two single entities
i.e. between a single employer and a single employee

COLLECTIVE LABOUR LAW:

• Focuses on relationships on a collective level, in other words a number of people are acting
together (collectively) to influence this relationship
• Collective labour law looks at groups, for example collective entities such as trade unions and
employer’s organisations

THE MOST IMPORTANT LEGISLATION REGARDING LABOUR LAW IS:

• Labour Relations Act 1995 (LRA)
• Basic Conditions of Employment Act 1997 (BCEA)
• Employment Equity Act 1998 (EEA)
• Skills Development Act 1998 (SDA)
• Occupational Health and Safety Act 1993 (OHSA)
• Mine Health and Safety Act 1996 (MHSA)




Page 1 of 89




Downloaded by GEOFREY GEOFFREY (geoffreyngugi.gk@gmail.com)

, lOMoAR cPSD| 11763056




LABOUR LAW NOTES


CHAPTER 2: EXCLUSIVE PROTECTION FOR EMPLOYEES IN TERMS OF LEGISLATION

WHAT IS AN EMPLOYMENT CONTRACT?

The contract of employment:

• is a voluntary agreement between two parties in terms of which
• one party (the employee) places his or her labour potential at the disposal and under the
control
• of the other party (the employer) in exchange for some form of remuneration

WHO IS AN EMPLOYEE?

The LRA, BCEA, EEA and SEA all use the same definition of an “employee”, and employee is:

(a) Any person, excluding an independent contractor, who works for another person or for the
State and who receives, or is entitled to receive, any remuneration; and
(b) Any person who in any manner assists in carrying on or conducting the business of an
employer

Part (a) of the definition includes both employees:

• in the private sector (“who works for another person”)
• and the public sector (“or for the state”)
• the definition also includes domestic and farm workers as employees

Part (a) incorporates the common-law contract of service (locatio conduction operarum) and
excludes the contract of work (locatio conduction operis), which relates to the contract of work

Part (b) includes any person who in any manner assists in carrying on or conducting the
business of the employer, it should be noted that this part is couched in broader terms and can
include various categories of workers, which complicates the matter as far as the distinction between
an employee and independent contractor is concerned.

Such categories include:

• permanent employees
• temporary employees
• casual workers
• contract workers
• part-time employees
• self-employed people
• and others such as seasonal workers

The difficulty in determining who qualifies as an employee and who does not has prompted
the courts to formulate various tests to distinguish between them, the various test are:

• the control test,
• the organisation test, and
• the dominant impression test




Page 2 of 89




Downloaded by GEOFREY GEOFFREY (geoffreyngugi.gk@gmail.com)

, lOMoAR cPSD| 11763056




LABOUR LAW NOTES


Control Test Organisation Test Dominant Impression Test

The test looks at the control: This test looks at whether the This test is favoured by the
• over the type of work person is: courts and considers:
the person does, • part and parcel of the • the employment
• the manner in which business relationship as a
the work must be done • the person’s work is whole rather than
and integrated into the concentrating on one
• when the work must business of the factor
be done employer and not just
an accessory to the
business


These tests help clarify the concept of “employee”, but were not sufficiently clear to solve a problem

As a result, the LRA and BCEA were amended in 2002 to include rebuttable presumption as to who
would be regarded as an employee

The presumption applies that as soon as one of the factors listed in section 200A of the LRA or
section 83A of the BCEA, is found to exist in the relationship between two parties, there is presumed
to be an employment relationship

The other party then has the opportunity to show, on a balance of probabilities that no such
relationship exists

The presumption will however not apply:

• to any person earning more than the amount determined by the Minister in terms of the
BCEA, and
• to a work arrangement involving persons who earn amounts equal to or below the amount
determined by the Minister

Section 200A of the LRA reads as follows:

“Until the contrary is proved, a person who works for, or renders services to, any other person is
presumed to be an employee, if any one or more of the following factors are present:

(a) manner in which the person works is subject to the control or direction of another person;
(b) person’s hours of work are subject to the control or direction of another person;
(c) the case of a person who works for an organisation, the person forms part of that
organisation
(d) person has worked for that person for an average of 40 hours per month over the last three
months;
(e) person is economically dependent on the person for whom he or she works or renders
services;
(f) person is provided with tools of trade or work equipment by the other person, or
(g) person only works for or renders services to one person”

Section 200A and 83A should be read with the Code: Who is an Employee?

The Code incorporates the three tests developed by the courts, but goes further and provides
guidance for the possible interpretation and application of these tests in a modern context




Page 3 of 89



Downloaded by GEOFREY GEOFFREY (geoffreyngugi.gk@gmail.com)

, lOMoAR cPSD| 11763056




LABOUR LAW NOTES


For example, as far as the control test is concerned the Code determines:

• control includes the right to determine what work the employee will do, in what manner and
that the employees working hours will be, and
• control may be a term of the contract, but even where it is not specified in the contract, it does
not necessarily mean there is not a contract of employment

As far as the organisation test is concerned the Code states inter alia that:

• the traditional workplace no longer exists and the employee does not need to work from the
employer’s premises to indicate that there is an employment relationship, and
• the tools of trade provided by the employer should not be interpreted narrowly and may range
from a modem or a cell phone package to a set of screw drivers

As far as the dominant impression test is concerned, the Code confirms the importance of this test

• it states that there is no single decisive factor to determine the existence or absence of an
employment relationship
• therefore all factors should be taken into account when determining the type of relationship
• a table has been developed from case law on the subject and can be used as part of the
application for the dominant impression test:

Employee Independent contractor

Object of contract is to render personal services Object of contract is to perform specified work or
produce specified results

Employee must perform services personally Independent contractor may usually perform
through others
Employer may choose when to make use of Independent contractor must perform work (or
services of employee produce result) within period fixed by contract
Contract terminates on death of employee Contract does not necessarily terminate on the
death of the employee
Contract also terminates on expiry of period of Contract terminates on completion of work or
service in contract production of specified results


It can be safely stated that the courts are generally in favour of the purposive and expansive
interpretation than the restrictive approach to the definition of an “employee” in recent years

WHAT IS AN IDEPENDANT CONTRACTOR?

“Independent contractor” means:

• a person who works for or supplies services to a client or customer
• as part of the person’s business undertaking or professional practice
- as amended by the Labour Relations Amendment Bill and proposed by the BCEA




Page 4 of 89



Downloaded by GEOFREY GEOFFREY (geoffreyngugi.gk@gmail.com)

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

Guaranteed quality through customer reviews

Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.

Quick and easy check-out

Quick and easy check-out

You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.

Focus on what matters

Focus on what matters

Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!

Frequently asked questions

What do I get when I buy this document?

You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.

Satisfaction guarantee: how does it work?

Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.

Who am I buying these notes from?

Stuvia is a marketplace, so you are not buying this document from us, but from seller KATLEGOO. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy these notes for $2.82. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

81989 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy study notes for 14 years now

Start selling
$2.82  2x  sold
  • (0)
  Add to cart