,ABR 410 (2020) Marissa Badenhorst
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FACTS A PPLICABLE TO THE COURSE AS A WHOLE
The following set of facts integrate most aspects covered in the Study Units:
Temogo Fredericks (TF) is a coloured person who comes from a poor background. He lives in the
Western Cape. After matric he joined the Brick and Mortar Company (BMC) where he has worked for
the past 10 years in different capacities. TF completed a diploma in Project Management on a part-
time basis after hours. BMC employs 100 workers and two trade unions have recruited members at the
workplace.
During the first three years, TF worked as a brick layer and was only paid for the completion of each
building project. However, one year after commencement, BMC provided TF with a vehicle and he
became a supervisor of projects. Although TF attended staff meetings on each Friday of the week and
BMC’s disciplinary code applied to him, BMC always referred to him as an independent contractor
during the first three years. He was not entitled to paid leave and he did not report for work on fixed
hours.
At the beginning of year 4, BMC offered TF a fixed-term contract with the following terms: duration of
one year; remuneration of R200 000; hours of service – Monday to Friday 7:00 till 18:00 with 30 minutes
lunch break; paid leave (12 days paid vacation leave for the year and 5 days sick leave); 24 hour
notice of termination; restraint of trade limiting TF not to do similar work in the Western Cape region for
a duration of 3 years subsequent to termination. TF accepted the fixed term appointment.
During the 4th year of service TF used BMC’s vehicle to travel to friends during working hours. After
viewing a soccer game on TV and enjoying refreshments, TF drove into incoming traffic and crashed
into Mr Boxer (Mr B). TF was under the influence of alcohol and the accident caused R50 000 damages
to Mr B’s vehicle. Back at work, BMC issued TF with a written warning without investigating the matter.
TF feels aggrieved because he was not given the opportunity to state his case and there were previous
incidents of drunk driving and vehicle accidents that were not addressed by the employer.
TF was appointed on an indefinite contract of employment in year 5. In year 6 he applied for promotion
to Senior Head of Projects. Three candidates were shortlisted. Jack, a white male, had the highest
qualification (BSC Building degree), but shortest work experience. TF had the longest and most
appropriate work experience. Sipho Ndo (Mr S), an african person, had a matric and the second
longest work experience. The interview panel awarded TF with the highest score. However, Mr S was
promoted. TF asks reasons why he was not promoted and © 2020 University of Pretoria 12
BMC replied that they applied national demographics only and that they were underrepresented in
the category of african workers.
In year 7 TF joined trade union XYZ. They represented 40 of BMC’s 100 workers. The rival trade Union
ABC represented 51 of the 100 workers. TF was keen to become a trade union representative (shop
steward). Ms S, TF’s supervisor, did not like the idea of him being active in trade union activities and
fabricated a set of lies against TF. It was alleged that TF circulated racist and derogatory emails to
fellow employees.
TF was issued with 48 hours’ notice to attend a disciplinary enquiry. During the enquiry he was not
allowed the opportunity to appoint a legal representative to assist him in the proceedings. TF was
frustrated by the fact that BMC did not follow a formal and court-like procedure during the enquiry.
While awaiting the outcome of the enquiry, the aggrieved TF arranged a trade union meeting and
the members decided to call out a strike. A dispute was referred to the Building Industry Bargaining
Council and a certificate of non-resolution was issued. Upon receiving the certificate, all members of
the trade union XYZ withdrew their labour with immediate effect.
BMC is concerned that this may be an unprotected strike and issues a one hour ultimatum for the
workers to return to work. Having failed to adhere to the ultimatum, BMC dismisses the workers with
immediate effect.
The 40 dismissed workers are keen to refer the dispute to the appropriate dispute resolution institution.
TF approaches you for advice regarding a number of issues that he has with BMC.
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STUDY UNIT 1: INTRODUCTION TO
LABOUR LAW
CHAPTER 1
Compulsory study material
1. Van Niekerk and Smit Law@work (2019) Chapter 1
2. Cohen & Moodley “Achieving ‘decent work’ in South Africa” 2012 PER/PELJ 320-569
WHAT IS “LABOUR LAW”, WHAT LEGAL SOURCES DOES IT CONSIST OF AND DOES IT
HAVE CLAIM TO AN INDEPENDENT DISCIPLINE?
• It is not based on a single legal concept and it consists of many components: contract,
delict, constitutional law and international law. It is a dimension of life
o There are two other reasons why labour law warrants consideration as a stand-
alone topic:
1. Work is fundamental to definitions of self and provides status, esteem
and meaning to those persons sufficiently fortunate to be engaged in it
2. At a social, political and economic level, work remains the principal
means through which economic activity is conducted
• Labour law is linked to social and political power – trade unions
have made and broken governments and have played a very
NB role in forming our constitutional democracy
• The regulation of the labour market is a contentious social and political issue as there
is a high unemployment rate and low job creation
o This is especially so in an environment where government seeks to provide
decent work for all
• The traditional role/function of labour law is to establish a more equal balance →
generally employers have the most power, thus huge potential of exploiting employees
e.g. through unequal treatment of men and women, unsafe working conditions, child
labour etc. and therefore the purpose of labour law is to develop some form of justice
and address this imbalance
o However – it could be problematic when too much power is granted to
employees as it could deter job creation – it is therefore necessary to strike a
balance
LABOUR LAW SERVES AS “COUNTERVAILING FOR CE” TO EMPLOYERS’ SUPERIOR
SOCIAL POWER. WHAT DOES THIS ENTAIL?
• The traditional role of labour law is to establish a more equal balance
o The main object of labour law is to be a countervailing force to counteract the
inequality in bargaining power which is inherent in the employment relationship
• Labour law has sought to serve as a countervailing force in two ways:
① Intervention in a substantive sense by imposing minimum standards (through
regulation – setting of floor of rights)
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▪ The BCEA adopts this mechanism by fixing statutory basic conditions of
employment
▪ The NMWA establishes a national minimum wage which cannot be
waived
▪ The LRA establishes protection for individual employees against
employer action in the form of unfair dismissal and unfair labour
practices
② Through recognition and promotion of collective bargaining – recognition and
fostering of collective bargaining (trade unions)
▪ The LRA guarantees employees the right to join trade unions and
participate in their activities
• New forms of work in gig-economy
o Is labour law sufficient to protect labour relations?
▪ The standard contract of employment is no longer the primary means
through which work is performed → nowadays work can be performed
by someone who works from home, receives instructions online etc.
• These forms of engagement generally offer less protection to
workers than does the traditional model of employment
▪ This erosion of the standard contract of employment as the primary
means by which work is performed has extended to the essentials of the
employment relationship itself
▪ 4th industrial revolution creates debates ito re-evaluating the purpose of
labour law to continue playing a relevant role:
• One of the arguments is to rethink the contract of employment
as the basis for the legal regulation of work and to shift the focus
from contract to a consideration of the nature of protection that
should be afforded to different categories of work
• Others consider a theory of justice as an appropriate basis for
labour law
• Some regard labour rights as a subset of human rights and that
some of these rights are available to persons engaged in
working relationships but who are not parties to a contract of
employment
• Capability approach → framework for labour law founded on
what people are able to do and to be; the capacity to lead a
life that they have reason to value; labour law is seen as a means
to advance human capabilities
• There are two ways in which labour law can continue playing a relevant role:
o Labour rights are human rights and thus higher than other laws
1. Section 10 of the LRA states that the LRA has higher status than other
legislation
2. Capability approach has been adopted founded on what people are
able to do and to be – thus the only guarantee to get workers is to
develop workers
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EXPLAIN THE DIFFERENCE BETWEEN THE “LIBERTARIAN APPROACH” AND THE “SOCIAL
JUSTICE PERSPECTIVE”. WHICH APPROACH DO YOU SUPPORT?
Social
Libertarian
Justice
Approach
Perspective
Law is a tool to achieve greater
Free market model - emphasises
social justice and, ultimately, labour
freedom of contract (capitalist
peace
view)
Trade unions are important and
labour law is used as a tool to
Deregulation - flexibility, increased counteract the inequality of
competitiveness and investment; no bargaining power of employers
collective bargaining platform
Sir Otto Kahn-Freund (one of the
fathers of labour law): voluntary
collective bargaining. Legal
Absence of legislative interference regulation plays a secondary role
will benefit both workers and
broader society Trade union membership has
declined significantly and
globalisation erodes collective
No empirical proof to show linkages bargaining
between lowered labour standards
and increased competitiveness in
global market i.e. that their Collective bargaining plus social
unemployment numbers are higher rights more modern version of the
social justice perspective
Also - Member of the international
SA has a human rights approach
Labour Organisation (ILO) and
and legislation gives effect to
modern Constitution
constitutional rights
• SA follows the social justice perspective as mandated by the Constitution
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• The libertarian perspective:
o The libertarian/free-market model regards the contract of employment and the
individual bargain that it represents as the only legitimate mechanism to
regulate the employment relationship
o Proponents of this view regard labour legislation with disdain and argue that
laws intended for the protection of employees have the unintended
consequence of protecting the employed at the expense of the unemployed
o Any statutory regulation of the labour market is regarded as inconsistent with
what is referred to as the right to work under any conditions
o This implies that the real choice for policy makers is between allowing
employees to work on any conditions they are willing to accept and forcing
them to be unemployed against their will
o The only legitimate protection for employees is afforded by the effective and
adequate common law
o Abolishing labour legislation will have beneficial consequences for employees
and for the broader society
o There are a number of reasons why this approach is inappropriate for labour
market regulation in SA:
1. There is no empirical evidence to support the view that gains in trade
performance or foreign direct investment are associated with lower
labour standards
• Core labour standards do not play a significant role in shaping
trade performance
• There appears to be no comparative advantage to be had
from the denial or violation of core labour standards
2. SA is a constitutional state in which the Constitution recognises labour
rights, in particular the right to fair labour practices, as fundamental
rights
• The constitutionalisation of labour rights implies that social justice
is a necessary precondition for creating a durable economy
and society and places obvious limitations on the policy choices
• A social justice perspective:
o This perspective regards law as a tool to further the interests of social justice and
focuses on the role of labour law in setting the distribution of wealth and power
in society
o Trade unions are regarded as a primary vehicle through which to achieve social
justice
o In the 1960s Sit Otto Kahn-Freund developed a conception of labour law as a
means to counteract inequality of bargaining power between employers and
employees
▪ The purpose of labour law was to maintain equilibrium between
employers and workers, a purpose best achieved through voluntary
collective bargaining
▪ In this approach, law plays a secondary role: it regulates, supports and
constrains the power of management and organised labour, but leaves
the process of bargaining and its outcomes to be determined by the
interests and power of the parties themselves
• However, this system was in need of adjustment
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o A more contemporary social justice perspective might therefore acknowledge
collective bargaining as an important means to define and enforce protection
for workers, but recognise rights as a complementary and perhaps more
significant medium to promote social justice in the workplace
DISCUSS THE PRE-1995 LABOUR LAW ERA AND THE DEVELOPMENT OF THE NOT ION OF
THE “UNFAIR LABOUR PRACTICE”.
• The development of trade unions and employers’ organisations occurred during a
period of rapid industrialisation after the discovery of gold and diamonds in SA
o Many of the foundations of the LRA were laid in response to the events in 1922
when white workers in the mining industry came out on strike, protesting against
attempts by the industry to reduce wage levels
o One of the consequences of the strike was the enactment of the 1924 Industrial
Conciliation Act
▪ However → this Act only applied to white workers!
• In 1977, the government appointed a commission of enquiry, chaired by Professor Nic
Wiehahn (the Wiehahn Commission) to report on and make recommendations
concerning the existing labour legislation
o Trade union rights were extended to black employees
o Amended LRA also covered black workers
• Industrial Court – definition of “unfair labour practice” → a jurisprudence emerged from
the Court in which it developed and applied the concept of fairness to the
employment relationship
o The Industrial Court interpreted the unfair labour practice definition
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DISCUSS THE POST-1995 LABOUR LAW ERA AND EXPLAIN THE MAIN PURPOSES OF THE
LRA, THE BCEA AND TH E EEA.
Know the names of the main pieces of legislation and their purposes
•First legislation post 1994
•Most NB Act
•Governs collective labour law, trade unions and the right
to strike and individual labour law protection against
Labour Relations unfair dismissal and the establishment of the CCMA
Act (LRA) •Regulates collective labour law and how to register a
trade union, difference between protected and
unprotected strikes
•Also deals with unfair dismissals
•It establishes the CCMA and labour courts
•Establishes basic conditions of employment
•Minimum standards - hours of work; leave; maternity
Basic Conditions of
leave; notice of termination; and notice pay
Employment Act
(BCEA) •Also establishes mechanisms for the variation of basic
conditions through individual agreement, collective
agreements and sectoral agreements
•Came into operation on 1 Jan 2019 and establishes a
national minimum wage
•The Act also establishes a national minimum wage
National Minimum commission, which is required to review the natioanl
Wages Act minimum wage and recommend adjustments
(NMWA)
•The national minimum wage = R20 per ordinary hour
•Domestic workers and farm workers gradually pushed up
•Establishes a floor of rights
•Prohibition of discrimination, sexual harrassment etc. and
promotion of affirmative action
Employment Equity
Act (EEA) •Requires larger employers to formulate employment
equity plans and to submit reports to the Department of
Employment and Labour
• Although we have a very advanced Constitution and ILO influenced labour laws – the
implementation thereof still has shortcomings due to structural problems, e.g.
insufficient education
• Labour law’s biggest limitation is that it only applies to employers and employees
o How do we give social protection to vulnerable groups of workers?
▪ Unemployment insurance schemes?
▪ Giving human rights even if not employee?
▪ Through specific legislation such as legislation applicable only to Uber
drivers or domestic workers?
WHAT IS NEDLAC, THE CCMA AND BARGAINING COUNCILS?
KEY LABOUR MARKET INSTITUTIONS:
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• NEDLAC → The National Economic Development and Labour Council
o Came into existence in Feb 1995 consequent to the NEDLAC Act
o The Act establishes 4 NEDLAC chambers – a public finance and monetary
chamber, a trade and industry chamber, a labour market chamber and a
development chamber
o Overarching institution – social partners (representatives of government,
organised business, trade unions)
• CCMA → Commission for Conciliation, Mediation and Arbitration
o The CCMA is the centrepiece of the LRA = it serves as the principal statutory
dispute resolution body for those employers
and employees who do not fall within the
jurisdiction of a bargaining council
o Approximately 130 000 – 140 000 cases annually
o No appeals – only review
o Quick and efficient
o The CCMA has important functions beyond
those of conciliation and arbitration: its
statutory functions include conducting
research, issuing guidelines, providing advice
and conducting training
• Bargaining Councils
o The LRA promotes collective bargaining at sectoral level
o The most NB institution through which this purpose is achieved is the bargaining
council
o Bargaining councils are voluntarily established statutory institutions that
conclude collective agreements for the sectors for which they are registered
and once accredited, resolve certain disputes that arise in that sector
o Like mini parliaments that exist in every industry - where employers negotiate
for their particular industry
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