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NOTES BY THE LECUTRE SLIDE IN INDUSTRIAL LAW
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SUMMARY OF LABOUR LAW NOTES PREPARED BY THE LECTURE
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Comparative Labour Law Literature (Book Labour and the Law in Europe)
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1LABOUR LAW – STUDY NOTES 2013
STUDY UNIT 1 (CHAPTER 1) – GENERAL OVERVIEW
1. Draw a clear distinction between individual labour law and collective
labour law.
- Individual labour law: concerns the relationship between employer & an
individual employee. Conclusion, contents, enforcement & termination of
employment contract.
- Collective labour law: concerns the relationship between an employer or
employer’s organisations (collective entities) and trade unions. Bargaining betw
employers & trade unions; strikes & lock outs (negotiations)
2. Mention four sources of employment law in South Africa.
- Legislation
- The Constitution
- Case law precedents
- International Labour Organisations (ILO Conventions)
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STUDY UNIT 2 (CHAPTER 2) – EXCLUSIVE EMPLOYEE PROTECTION
1. Draw a distinction between an employee and an independent contractor.
In your answer you must discuss the three different tests used by the
courts and what they entail.
Independent contractor is contracted to perform a certain task or to produce a
specific result, may perform the task through others, must perform within a
certain period and such contract terminates on completion of the work he was
contracted to do or expiry of the given time.
Employee is appointed to render personal services to the employer in terms of
the job description. The employer may choose when to use the employee, and
the contract expires on death of the employee or on the expiry of period of
service.
Definition of employee:
Sec 213 LRA, Sec 1 EEA, and Sec 1 BCEA = definition of employee:
“an employee is:
(a) any person, excluding an independent contractor, who works for
another person or the State and who receives, or is entitled to
receive any remuneration; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an employer…”
(a) incorporates:-
An employee includes the common-law contract of service (locatio
conduction operarum), and
excludes the contract of work (locatio conduction operis) which relates to
an independent contractor.
(b) includes:-
Any person who in any manner assists in carrying on or conducting the
business of the employer.
, 3
Courts have formulated various tests to distinguish between employees and
independent contractors:
TESTS: Control Test, Organisation Test, Dominant Impression Test
CONTROL TEST ORGANISATION TEST DOMINANT IMPRESSION TEST
Looks at the control over the Looks at whether the person is This test is favoured by the courts
work the person does, the part and parcel of the business. and considers the employment
manner in which the work must The person’s work is integrated relationship as a whole, rather
be done and when the work into the business of the employer than concentrating only on one
must be done. and is not just an accessory to the factor.
business.
Right to Control is more
extensive in the employment
contract – if there is no control
by one party over another, then
there is no contract of
employment.
Smit v Workmen’s Compensation:
Presence of right of supervision and control is not the sole indicia, but merely
one of them, albeit an important one and there may also be other important
indicia to consider depending on the provisions of the contract as a whole.
Held, that object of the contract wherein Smit was employed as an “agent” for
an Insurance Co. was contract of work and not of service because:
- Agent received no remuneration for his activities unless one of his
proposals were accepted by the Co.;
- There was a lack of supervision and control over agent;
- Remuneration was on commission basis
Therefore, contract of work = Independent contractor.
Niselow v Liberty Life:
As part of “Dominant Impression test”, court added so-called ‘Economic
Capacity test’, which holds that an employee dedicates his/her sole income-
earning capacity to the employer. (Not to be treated as separate 4th test, but
part of Dom Impression Test)
, 4
Section 200A LRA: (Definition)
“Until the contrary is proved, a person who works for, or renders a service 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 a 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 other person for an average of at least 40hrs
per month over the last 3 months;
(e) person is economically dependent on the other person for whom he/she
works or renders a service;
(f) person is provided with tools of the trade or work equipment by the other
person; or
(g) person only works for or renders a service to one person.”
Code: Who is an employee? Item 32 – Use as part of application of Dominant
Impression Test
EMPLOYEE INDEPENDENT CONRACTOR
Object of contract: to render personal services Object of contract: to perform specified work or
produce a specific result
Employee perform services personally May usually perform through others
Employer choose when to make use of services of Perform work(produce result) within a fixed period
employee contracted to
Contract terminates on death of employee Contract not necessarilt terminate on death of
Indep Cont.
Contract also terminates on expiry of period of Contract terminates on completion of work or
service in contract production of specified result
Definition of employer:
- Any person or body which employs any person in exchange for
remuneration , and
- Any person who permits any person to assist him/her in conducting its
business.
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