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Summary LRM2601-Notes for examination Workbook 05
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- University Of South Africa (Unisa)
Notes on Workbook 05
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LRM2601 – EXAMINATION PREPARATIONWORKBOOK 05
South African’s statutory labour relations system (Labour Relations Act 66 of 1995)
1. Individual Contract of Employment
• Individual agreement (the employment contract) which regulates the relationship between the
individual employer and the employee.
• A bilateral agreement between an employer and a worker. The worker offers his or her potential to
work to the employer, and in exchange the employer remunerates the worker for his or her labour.
• The contents of the employment contract are decided upon by the employer and the worker, but other
Acts and agreements affecting minimum conditions must also be taken into account.
• Parties may not accept conditions which are less favourable than those for which provision has been
made in the Basic Conditions of Employment Act (BCEA) 75 of 1997, in bargaining council agreements,
or than conditions set by the Occupational Health and Safety Act 85 of 1993.
• It subordinate to the various labour laws in South Africa, this means in practice that if an employment
contract is silent about, for instance, sick leave, the BCEA will “override” the employment contract and
the employee will be covered by the specific section of the legislation (BCEA).
In terms of their employment contract, both employer and employee are understood to have specific duties.
The employee sells labour to the employer, but the employer also has a lot to offer in the employment
relationship.
Duties of the employer (at common law):
● Pay the employee
● Provide safe and healthy working conditions
● Provide work for the employee
● Not make the employee do work junior for what he/she was employed
● Not contract the employee’s services to another employer without consent
Duties of the employee (at common law):
• Perform his/her work faithfully and diligently
• Obey reasonable orders given in the normal course of employment
• Not deal dishonestly with the property of the employer
• Not compete in his/her private capacity with the business of the employer
Contract must comply with the requirements set for all valid contracts:
• The parties must have contractual capacity.
• Performance of the contract must be possible (e.g. if a foreign national does not have a valid work
permit, he or she may not be employed).
• The contract may not be contra bonos mores (against public moral values, e.g. prostitution).
• The contract must comply with any formalities which may be prescribed (e.g. all temporary employment
contracts must be in writing).
• The parties must reach consensus on the essential terms of the engagement (e.g. salary, supervision by
the employer and the nature of the functions to be performed).
Contract can be terminated in a number of ways:
➢ when a fixed-term contract expires at the end of the agreed period
➢ if the employer becomes insolvent
➢ through resignation by
➢ retirement of the employee
➢ by dismissal by the employer
Diluted forms of employment, such as subcontracting, part-time employment, temporary employment, home-
based employment and telework, also referred to as atypical employment.
, • Prohibition on employing someone who earns less than the earnings threshold determined by the Minister
of Labour from time to time (at the time of writing this was R205 433.30 per year) in a part-time or
temporary capacity for more than three months unless there is a justifiable reason for it
• Absence of such a reason, temporary employees are regarded as permanent employees of the employer,
entitled to the same terms and conditions of employment and benefits as permanent employees.
• If there is a justifiable reason for employing someone for longer than the three-month period on a
temporary basis, he or she is entitled to the same terms and conditions of employment and benefits as
permanent employees from the fourth month on.
2. Main elements of the South African system of employment relations
External environment, NEDLAC and the Department of Labour play a significant role in influencing and shaping
the labour laws of our country, therefore it is important to note that the specific brand of employment relations
exercised in South Africa emerged from negotiations and compromises at NEDLAC, and continues to evolve as
conditions change in the external environment.
The LRA does not apply to members of the:
- National Defence Force,
- National Intelligence Agency and
- South African Secret Service
- Previously excluded groups, for example domestic workers and agricultural workers, are now included.
Constitutional rights in terms of labour relations (Section 23)
1. Everyone has the right to fair labour practices
2. Every worker has the right
a. To form and join a trade union
b. To participate in union activities
c. To strike
3. Every employer has the right
a. To form and join an employers’ organisation
b. To participate in employers’ organisation activities
4. Every trade union and employers’ organisation has the right
a. To determine its own administration, programmes and activities
b. To organise, and
c. To form and join a federation
5. Every trade union, employers’ organisation and employer has the right to engage in collective
bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that
legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
6. National legislation may recognise union security arrangements contained in collective agreements. To
the extent that the legislation may limit a right in this Chapter, the limitation must comply with section
36(1).
, Employees cannot directly rely on the Constitution in legal claims against their employers, but have to rely on
legislation derived from it. For example, dismissed employees cannot rely on section 23 of the Constitution if they
believe they have been dismissed unfairly, but must rely on the unfair dismissal provisions in Chapter VIII of the
LRA. The position is different for those excluded from labour legislation, such as secret service employees and the
military.
The right to strike is written into section 23 but that it is silent on lock-outs by employers. Although this is not
catered for in the Constitution, however, the LRA does grant employers recourse to lock employees out under
certain circumstances. The lock-out is by no means a universally accepted right, however. Some countries prohibit
it outright, while others only allow for so-called “defensive” lock-outs (i.e. in response to a strike). In South Africa,
employers may engage in both defensive and “offensive” lock-outs.
Section 9 of the Constitution specifies that
❖ everyone is equal before the law and has the right to equal protection and benefit of the law.
❖ provides protection against direct or indirect discrimination against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth.
This protection has found expression in the form of the EEA, which prohibits unfair discrimination in the workplace
and requires “designated” employers (employing more than 50 employees or whose turnover exceed a prescribed
threshold) to implement employment equity measures, including affirmative action.
Section 17 of the Constitution stipulates that
❖ everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present
petitions. The right to petition/picket is not an unfettered right.
The Regulation of Gatherings Act 205 of 1993 states that organisers of an event must give authorities (police)
seven days’ notice, together with the names, place and purpose of the event. In 2014 amendment to the LRA now
allows for trade unions, subject to certain conditions, to organise peaceful pickets in public places, such as
shopping malls, if the employer against whom the protest has been organised is situated inside.
Section 18 of the Constitution provides for
❖ freedom of association and thereby allows workers to join together and form trade unions. This right is
extensively dealt with in Chapter II of the LRA, which also allows for the limitation of the right by way of
closed shop agreements.
Section 32 states that everyone has the right to information the government has and to information needed to
protect an individual’s rights.
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