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LABOUR LAW LECTURE SLIDE IN SUMMARY
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SUMMARY OF LABOUR LAW NOTES PREPARED BY THE LECTURE
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LABOUR LAWUNIT 1- INTRO
Deals with relationships:
Employer + a worker: Employment relationship
(based on contract of employment)
Employer / employer’s organisation + trade union: Collective bargaining relationship
Employer + employer’s organisation: Membership relationship
Trade unions + workers: Membership relationship
State + citizens / group of citizens: Harder to classify – no name
Individual labour law Collective labour law
Focuses on relationship btw employer + individual Relationships btw collective entities / groups
employee
Includes: Includes:
Conclusion, contents, enforcement & termination of Bargaining btw employers + trade unions; strikes +
contract of employment lock-outs by no. Of employees for work-related
purposes
INDIVIDUAL LABOUR LAW
UNIT 2 – EMPLOYMENT CONTRACT
DEFINITION
Voluntary agreement
Btw 2 parties; in terms of which
One party (the employee) places his / her labour potential
At disposal + under control of other party (the employer)
In exchange of some form of remuneration
Must comply with requirements for a valid contract to be binding + enforceable
Remuneration = can be money / provision of another benefit (i.e. payment made in kind) – CL doesn’t
prescribe what form remuneration must take
Reciprocal = employee works in exchange for remuneration + employer remunerates employee in exchange
for employee offering to place his/her labour potention at disposal + under control of employer
Element of control NB = Employer needs merely the right to exercise control over activities of employee –
fact that employer doesn’t exercise this right doesn’t mean this right is absent + that it can’t be applied +
enforced
EMPLOYEE =
Definition NB because most protective labour legislation applies only to employees
1
,In LRA, “employee” includes:
Employees in public service + in education sector (State is now regarded as an employer)
Domestic + farm workers
LRA, BCEA + EEA refers to a person who “in any manner assists in carrying on or conducting” employer’s
business =
Liberty Life Association of Africa:
“assistance” = form of assistance rendered by an employee, though the person he assists may not
necessarily be his employer + doesn’t include kind of assistance rendered by independent
contractor’s
S3(1)(b) of BCEA = Employee excludes unpaid volunteers working for an organisation serving a charitable
purpose
S 83(1) of BCEA = Minister of Labour may deem any category of person’s to be employees for purposes of
the whole / any part of BCEA or any other labour legislation or for purposes of any sectoral determination
made by Minster ito BCEA
Tests developed by court to distinguish employee from independent contractor =
Control =
Right to control is more extensive in employment contract – if there is no control by one party over
another, then there’s no contract of employment
Case law:
Colonial Mutual Life Assurance Society = Master must have right to prescribe workplace = manner in work is
to be done
Organisation =
Extent to which a worker is integrated into organisation of the employer / if worker is performing work
inside organisation of another
Case law:
Rejected by AD in 1979 as being too vague = not always possible to measure extent of integration and/or
know the degree of integration sufficient to qualify as an employee
Multiple / Dominant impression (Most popular) - Indicia (factors) are examined =
Right of supervision employer has ito worker;
Extent worker depends on employer in performance of duties;
Worker is or is not allowed to work for another;
Worker required to devote specific time to his work;
Worker obliged to perform duties personally;
Worker paid according to fixed rate / commission;
Worker provides his own tools / equipment;
Employer’s right to discipline worker
Case law:
Minister of Health & Another =
One should have regard to all indicia which would contribute towards indication whether contract is
one of service or work + react to the impression one gets upon consideration of all such indicia
2
,Smit =
Presence of right of supervision + control is not the sole indicia but merely one of them, albeit an
important one + there may also be other NB indicia to consider depending on provisions of the
contract as a whole
Held that object of contract wherein Smit was employed as an “agent” for an Insurance Company
was one of work + not service because:
Agent receives no remuneration for his activities unless one of his proposals is accepted by the
company;
Lack of supervision + control; and
Remuneration was by commission
MASA =
Held that part-time district surgeons were employees of the State because:
Rendered personal services;
Expected to be at beck + call of employer, 24 hrs a day + give priority to official duties over those of
their private practices;
State obliged to pay contractual salary, even in the absence of any actual work being performed, as
long as doctors availed themselves to do the work; and
Provincial administration has some control over way services rendered by doctors, despite doctors
being professionals
SABC =
Despite criticism – test consistently followed by the courts – some NB characteristics of contract of
employment and one of independent contractor (IC) are:
Object:
o Employment = personal services
o IC = perform specific work / product specific result;
o Employee typically required to be at beck + call employer – contractor not obliged to
perform work / produce result himself;
Services to be rendered:
o Employment = at disposal of employer
o IC = bound to perform specific work / produce specific result in time fiexed by contract /
within reasonable time
o Employee is subordinate to will of employer
IC is his own master:
o Notionally on footing of equality with employer – not under employer’s control / any
obligation to obey orders of employer re manner work must be performed
Termination of contract:
o Employment = Death /expiration of period of service
o IC: completion of specific work / production of specific result
Linda Erasmus Properties =
Labour Court overruled decision of CCMA + held that estate agent was employee of agency at time
she was dismissed + considered following:
Contents of agreement – required estate agent to keep all correspondence at agency’s offices;
restraint of trade; and exit interview required if agent left agency
Economic / Productive capacity =
Independent contractor “sells the job” – Employee “sells his hands”
Case law:
Liberty Life Association of Africa (discussed above)
3
, New presumption added in 2002 to LRA: (Section 200A)
Rebuttable presumption: If one or more of following factors present, person presumed employee unless +
until contrary proven =
Manner person works is subject to control / direction of another;
Hours of work are subject to control / direction of another;
Person forms part of the organisation;
Person worked for other for avg of 40 hrs / month over last 3 months;
Person economically dependent on other;
Person provided with tools / work equipment by other; or
Person only works for / renders services to one person
Unless = Person earns in excess of amt determined by the Minster ito BCEA –
If proposed / existing work arrangement involves amts equal to / below amts determined by
Minister ito BCEA, any contracting party can apply for award on whether person constitutes an
employee
NEDLAC (National Economic Development and Labour Council) must prepare + issue Code of Good
Practice that sets out guidelines for determining if persons, including those earning in excess of amt
determined by Minister are employees
Catlin case:
Court must consider provisions of contract before applying above presumptions
When employment commences:
Jack case:
Contract binding & enforceable once parties reached agreement on all essential terms
Wyeth case:
Any person who has concluded a contract work shall enjoy protection against dismissal ito LRA
Where parties choose for worker to be a contractor =
Denel case:
A court should not decide the question of whether there was an employment relationship + a
dismissal solely on what the parties have chosen in their agreement because it may have been
convenient to both parties to leave out some NB matters in the agreement / the agreement may
not reflect the true position
Court must have regard, not to labels but to the realities of the relationship btw the 3 parties –
substances rather than form must determine the relationship
It is possible that an owner of a company / cc may still be found to be an employee of another entity
Labour appeal court held that G, who was an owner of a company which had an agreement to
provide services to D was in reality an employee of D
State IT Agency case:
F could not be lawfully employed by S, as such; parties agreed that F rendered services to S through
a CC - Subsequently, S terminated its contract with CC - F approached CCMA claiming he’d been
dismissed
Labour Appeal Court held F was employee of S + dismissed + entitled to compensation – when
determining whether there was an employment relationship, Court to work with 3 criteria:
1. Employer’s right to supervision + control;
2. If employee forms integral part of employer’s organisation
3. Extent to which employee was economically dependent on employer
CC was merely a mechanism to make it possible for S to obtain F’s services - F was part of S’s
organisation - There was a relationship of economic dependency btw F + s
Categories of employees:
4
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