LABOUR LAW

ARR 214
Introduction &
Theme 1
Introduction (Lecturer)

LECTURER: ADV D M Smit

CRS 27
Telephone: 401-3593 (W)

smitdm@ufs.ac.za
INTRODUCTION (MATERIAL)

• A Practical Guide to Labour Law (PGL) Du

Plessis & Fouche (sixth edition– 2006
Butterworths).

• Principles of Labour Law (PLL) Van Jaarsveld &

Van Eck. (Third edition 2005 -Butterworths)

• Workplace Law (WL) Grogan (Tenth Edition

2009 – Juta )
 INTRODUCTION (FACILITATION OF
LEARNING)

• A lot of studying is done on their own although the lecturer will

be available when guidance or assistance is needed.
• During each lecture or seminar, your lecturer will identify and
prescribe sections of the work you have to study at home for the
next session. The lecturer expects learners to study these
sections on their own and to know the contents for the next
lecture or seminar session.
• Note that the lecturer will assume that you are already familiar
with the prescribed section of work when you come to class.
Therefore the lecturer will structure the teaching facilitation in
class according to the knowledge you should have of the topic.
• The lecturer will also expect learners to describe and discuss
any problems they have experienced while studying on their
own.
• Please attend tutorials.
THEME 1

THE HISTORICAL
D E V E L O P M E N T, S O U R C E S
A N D N AT U R E O F L A B O U R
L AW I N S O U T H A F R I C A
PGL (2006: 3-8);WL (2009: 1-12) PLL (2005: 6-29;
2 0 4 - 2 11 )
THEME 1 (LEARNING OUTCOMES)
• Sketch the relevant historical development of both
individual labour law and collective labour law.
• Elucidate the meaning of the concept of labour law.
• Distinguish between the concepts of individual and
collective labour law.
• Explain the sources of labour law in South Africa and
also discuss the lexical order of these sources and
rules.
• Elucidate the relationship between an employer and an
employee, including the state.
THEME 1 (BACKGROUND OF THE
DEVELOPMENT OF LABOUR LAW IN
SA)
• Labour law
o Individual labour law Roman and Dutch law (common law)
basis. Form of lease agreement – law of contract. Individual
relationship between employer and employee.
o Collective labour law Based on LRA. Collective relationship
between employers/er-organisation and unions.
• Individual rights-based relationship changed by
unions and legislation (by State). Result of
collective bargaining takes preference over
individual agreements.
• Employment relationship = Private law v Public
law
• Common law contract = little protection.
Legislation.
THEME 1 (DEVELOPMENT OF LABOUR
LAW IN SOUTH AFRICA I)
• Industrial Conciliation Act in 1924
• The Industrial Conciliation Act of 1956 contained
the following provisions:
othe regulation of separate development in respect of
trade unions;
othe creation of an Industrial Court;
ostatutory recognition of the concept of “closed shop”;
and
oblack people were prohibited from joining registered
trade unions.
THEME 1(DEVELOPMENT OF
LABOUR LAW IN SOUTH AFRICA II)
• Pursuant to recommendations of the
Botha Commission the Wages Act of
1957 and the Regulation of Black Labour
Relations Act of 1953 were promulgated.
• In 1973 provision was made for a system
of committees at workplaces and in 1975
there were approximately 2,750
committees with a total membership of
approximately 608,000 Black employees
pursuant to this system.
 THEME 1 (DEVELOPMENT OF
LABOUR LAW IN SOUTH AFRICA III)

• During the 1940’s the following statutes were

promulgated:
• Factories, Machinery & Building Work Act of 1941
(Occupational Health and Safety Act of 1993);
• Workmen’s Compensation Act of 1941 (Compensation for
Occupational Injuries and Diseases Act of 1993);
• Apprentices Act of 1944 (Included in Manpower Training Act
of 1981 – now Skills Development Act of 1998);
• Unemployment Insurance Act of 1946 (Unemployment
Insurance Act of 1966 – as amended);
• Shops and Offices Act (Basic Conditions of Employment Act
of 1997).
 THEME 1 (DEVELOPMENT OF
LABOUR LAW IN SOUTH AFRICA IV)
The position between 1977 and 1982
• Most important event was recommendations of Wiehahn
Commission, most of them having been accepted by
Government and many of them having appeared in new
legislation. A few recommendations, were inter alia:

o a new industrial court should be established;

o a national manpower commission should be established;
o provision should be made for legislation concerning fair labour
practices;
o labour laws and practices should correspond with international
conventions and codes;
o bargaining rights of workers’ councils be statutorily laid down;
o basic labour rights be extended to the public sector;
o specific legislation should be adopted regarding unfair labour
practices;
o conditions of employment and working circumstances of female
employees should be considered with a view to revision.
THEME 1 (DEVELOPMENT OF
LABOUR LAW IN SOUTH AFRICA V)

80’s and 90’s

• Political unrest
• Renewed consultations
• Codesa
• New political dispensation
• Constitution
• New legislation
oLRA
oBCEA
oEEA
oSkills
THEME 1 (SOURCES OF LABOUR LAW)

1. Common Law
2. Provisions of a contract of
employment
3. Legislation
4. Collective agreements
5. International Labour Law and
standards
6. Custom and Practice
7. Constitutional provisions
 THEME 1 (LEXICAL ORDER OF
SOURCES AND RULES I)
• Some sources take precedence over others.
• Bill of Rights is highest in lexical order. Common law is lowest.
• Guidelines to determine which rules are applicable in certain
situation:
o Determine whether employee is covered by Basic Conditions of
Employment Act (BCEA).
o Determine whether issue in question, such as leave, is covered by
minimum standards prescribed by BCEA.
o Determine whether employment condition in question is in
contravention of core rights as specified in BCEA.
o If it is in conflict with BCEA, determine whether there is a council
agreement, ministerial or sectoral determination or another collective
agreement in existence which may limit the core rights.
o Compare employee’s contract of employment and BCEA to determine
whether contract may vary conditions of employment.
o If none of the above rules applies, refer to the common law rules
THEME 1 (LEXICAL ORDER OF
SOURCES AND RULES II)

Constitution

Core Rights

Collective agreements inside council

Ministerial and sectoral determinations

BCEA

Collective agreements outside

council
Individual agreements

Common law
THEME 1 (NATURE OF LABOUR LAW)
• Remember that there are three parties involved
in Labour Law:

oThe employee,
othe employer and
othe State (the state can also
be an employer!)

• You should be able to distinguish between

individual and collective labour law and explain
the interaction between the employee and
employer.
NEXT LECTURE
• The Individual Contract of Employment and Other Related Contracts.
• Duties of Employers