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Summary Mercantile Law 193 - Labour law Section A (S2)
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Detailed and complete summary of the entire section A: Labour Law, of semester 2 of the module.
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SECTION A – LABOUR LAWCHAPTER 1 – Intro to labour law & sources of labour law
Introduction to labour law
• Labour law:
Þ Regulates activity of the working
Þ Regulates a tri-partite relationship between the state, employers and
employees
• Dynamic branch of law
Þ Influenced by social, economic, financial and political factors
Þ Also influences social, financial and political decisions (daily life)
Þ Does not operate in isolation and is constantly changing
• The relationship between employer and employee is based on the employment
contract
Þ Employment contract is regarded as a species of the contract of lease
(employee leases time and services in exchange for wages from employer)
• Standard principles regarding contract law still apply
e.g. principle of freedom of contract
• BUT the bargaining position of employer and employee do not balance (high
unemployment in SA, oversupply of employees)
• Common law relating to labour law focuses on lawfulness (does not mean
fairness)
• Legislation was therefore enacted to bring more fairness into the relationship
• Five fairness mechanisms introduced:
1. Minimum conditions of employment
2. Collective bargaining
3. Protection against unfair dismissal
4. Protection against unfair labour practices
5. Protection against unfair discrimination
• In 2018: national minimum wage introduced
Individual and collective labour law
Individual labour law Collective labour law
• Relationship between individual VS • Collective relationships between
employee and their employer employer and trade union
• e.g. employment contract (representatives of a group of
employees)
• Advantages = Increased
bargaining power for employees,
easier negotiation for employer
,Sources of South African labour law
Legislation:
• The Constitution
Primary sources
• The Labour Relations Act (LRA)
of labour law
• The Basic Conditions of Employment Act (BCEA)
• The Employment Equity Act (EEA)
• The Occupational Health and Safety Act (OHSA)
• The Compensation for Occupational Injuries and Diseases Act (COIDA)
• The Unemployment Insurance Act (UIA)
• International and foreign law
• Common law
• Case law
• Collective agreements
• Contract of employment
The Constitution
• Binding on all persons including the state, juristic persons and natural persons
• Indirectly and directly influences relationship between employer and employee
• Important Bill of rights sections:
Þ Right to equality (section 9)
Þ Right to human dignity (section 10)
Þ Prohibition of slavery (section 13)
Þ Right to privacy (section 14)
Þ Right to assemble, demonstrate, picket and petition (section 17)
Þ Right to freedom of association (section 18)
Þ Right to freedom of trade, occupation and profession (section 22)
Þ Right to fair labour practices (section 23) – provides expressly that every
worker has right to strike, can participate in trade union activities and
employers may join an employer’s organization, collective bargaining
Labour Relations Act 66 of 1995 (LRA)
• Applies to all employers and employees
• BUT certain individuals excluded – SADF, SAPS, National Intelligence Agency
(specialized legislation together with common law)
• Deals with:
§ Registration of trade unions
§ Framework for collective bargaining
§ Regulates collective bargaining
§ Framework for law of dismissal and resolution of labour disputes
, Basic Conditions of Employment Act 75 of 1997 (BCEA)
• Regulates minimum standards of employment including:
Þ Working hours (max number)
Þ Types of leave
Þ Payment for overtime work or work on public holidays/Sundays
Þ Payment when contracts of employment are terminated
• Prescribed standards may be varied by collective agreement, individual
agreement, Ministerial variation or sectoral determination
(collective agreement – terms can be less favourable than min standards,
individual agreement – terms cannot be less favourable)
Employment Equity Act 55 of 1998 (EEA)
• Promotes right to equality in employment context
• Prohibits discrimination on various grounds
• Aims to redress the effect of past discrimination through affirmative action
Occupational Health and Safety Act 85 of 1993 (OHSA)
• Strengthens and confirms common law duty on employer to provide safe working
conditions
• Regulates health and safety at work, protection of public against hazards to
health or safety arising out of activities in the workplace
e.g. personal protective equipment Covid-19
• Criminal liability for employer non-compliance
Compensation for Occupational Diseases Act 130 of 2993 (COIDA)
• Payment of compensation for loss of earnings if employee is injured/killed in
course of employment or if employee contracted occupational diseases
• COIDA excludes common law claim against employer, as employee must now
claim from Compensation Fund
• All employers obliged by law to contribute to Compensation Fund an amount
(differs) calculated with reference to wages/salaries of employees and economic
sectors in which employer operates (higher risk = higher % contribution)
Unemployment Insurance Act (UIA)
• All employees and all employers legally obligated to contribute 1% of employee’s
wage/salary to the Unemployment Insurance Fund (UIF) (2% total)
• UIF provides benefits to individuals during periods of unemployment, illness,
maternity and adoption or benefits to dependents due to death of employee
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