SOUTH AFRICAN EMPLOYMENT LAWS
LET’S GET READY WEEK
THE FUNDERMENTALS OF EMPLOYEMENT RELTIONS IN SOUTH AFRICA
FROM INDUSTRIAL RELATIONS TO EMPLOYMENT RELATIONS: AN EVOLVING FIELD
OF STUDY IN SEARCH OF ITS IDENTITY
Nel & Kirsten (2020:6–7) summarise the early development of employment relations as follows:
“According to Kaufman (2008: 319), the academic (or intellectual) roots of the field of industrial
relations can be traced back to the late 1800s and the early 1900s in Britain: The works of intellectuals
like Beatrice and Sidney Webb and Max Weber are mentioned as examples. It is shown, however, that
“the actual institutionalization of the field in British universities occurred later than in the USA”.
It is explained that whereas industrial relations as a field of study only became institutionalised in
British universities during the mid-1930s, in the US, the “first free-standing [industrial relations]
academic unit was created in 1922” at Princeton University
“In South Africa, Swanepoel (1991; 1994; 1996) convincingly argued for the need to reconsider what
the focal point and scope of this field of study, practice and theory is or should be. It has been
demonstrated through empirical research and the pragmatics of this field that a broader, more
inclusive approach to defining and demarcating this field is preferable. In doing so, the cornerstone of
this field has been shown to be the employment relationship” (Nel & Kirsten, 2020:7)
Labour Relations is the discipline that includes such different topics as collective bargaining, collective
agreements, administration and grievance settlement, wage determination, fringe benefits,
employers’ organisations and trade unions, labour pool/workforce (‘manpower’), human resource
management, minimum working standards, industrial health and safety, the quality of working life,
State labour policy, industrial conflict, etc.
Employment relations (ER) refers to a complex, open system of formal and informal, and individual
and collective relationships, and interactions between employers, employees and the State, and the
representatives of these primary role-playing parties, together with their related institutions,
concerning aspects that emanate from, relate to or may impact on the contemporary employment
relationship in its organisational and broader societal context where the satisfaction of the needs of
all members of society is a primary concern.
Activity:
Briefly explain what is meant with ‘employment relations’ as a concept. Specifically indicate how it
relates to the concepts ‘labour relations’ and ‘industrial relations’.
Activity Memorandum:
Industrial Relations (IR) refers to a complex system of individual and collective actions, as well as
formal and informal relationships existing between the State, employers, employees and related
institutions, concerning all aspects of the employment (Nel & Kirsten, 2020).
IDEOLOGICAL, THEORETICAL PERSPECTIVES ON THE CONFLICT/COMMONGROUND DYNAMICS IN EMPLOYMENT RELATIONS
3.1. THE PLURALIST PERSPECTIVE
It views the organisation as consisting of competing groups and individuals with diverse objectives,
values, and interests.
It focuses on conflict because of the differing roles of managerial employees and worker groups.
Competitive conflict between management and labour is seen as rational and inevitable.
If groups have equal power, some form of compromise will be reached between them.
Willingness to compromise is in turn dependent on the existence of common interest.
The pluralist approach legitimises the use of power by one party as a means of exerting pressure on
the other party.
It encourages the formation of Trade Unions and employers’ organisations.
The pluralist perspective concentrates on how to regulate and institutionalise conflict to contain and
control its impact on the parties and their relationships.
3.2. THE UNITARIST PERSPECTIVE
It views the organisation as an integrated group of people having a unified authority structure with
common values, interests, and objectives.
It promotes the idea that the organisation is a cohesive whole in which all should work together for
the common good.
It focuses on co-operation.
No real conflict of interests exists between employers and their employees. Conflict is explained as a
product of bad communication, lack of understanding or the actions of agitators (e.g., trade unions).
No power play exists between the parties.
Trade unions and employers’ organisations are unnecessary. From a unitarist point of view, trade
unions are often viewed as troublemakers who cause unnecessary conflict between employers and
their employees.
3.3. THE RADICAL PERSPECTIVE
This approach is also known as the Marxist or class (group) conflict perspective. It views workers as
being oppressed for the sake of capitalist interests.
The cause of class conflict originates from the inequality in the distribution of, and access to,
economic power (mainly between those who own capital and those who supply their labour).
The nature of society’s social and political institutions stems from this inequality and reinforces the
position of the dominant establishment group (e.g., unequal access to education, the media and
employment in government).
The organisation reflects the wider society (i.e., it appears to consist of a number of competing
groups, but the production is privately owned, and profit is the key influence on the company policy).
Industrial conflict is endemic (widespread). All conflict is believed to stem from the division in society
(between owners and labourers or ‘haves’ and ‘have-nots’).
Trade unions are part of the class struggle. They are therefore required to bring about fundamental
changes in the nature of the economic, political, and social systems. They enhance the industrial
power of the working class and focus its political activities.
3.4. CORPORATISM AND CONCERTATION
Two potential variations on the above mentioned three traditional perspectives (pluralist, unitarist,
radicalism) are:
Societal corporatism:
It is an extension of pluralism and is also referred to as tripartite co-ordination or co-operation.
The two primary parties or role players (business and labour) are no longer viewed as interacting on a
purely competitive basis. Interdependence between all three parties is acknowledged.
Conflict and common ground are blended, and a mutually gainful long-term view is favoured over
above short term, win-lose modes of interaction.
State corporatism:
This is where the state imposes its will on the labour movement.
It emphasises shifts from tripartite coordination and cooperation to a situation where the state moves
into a paternalistic or authoritarian mode to demobilise and co-opt organised labour into government
structures.
This perspective is closer to unitarist than to pluralist.
A CONTEMPORARY SOUTH AFRICAN PERSPECTIVE ON EMPLOYMENT RELATIONS
AS A FIELD OF STUDY
The roots of employment relations are embedded in the relationships between employers and
employees, and these parties are integral to modern society.
The primary process of interaction between these groups or collectives is collective bargaining. In
collective bargaining, the parties, through their respective representatives, negotiate issues related
to, or affecting, the employment relationship in its organisational and broader societal context.
Through the use of power and communication processes, they conclude collective agreements to
regulate their relationships and balance their partly individual and partly common interests and
objectives.
In short, employment relations as a field of study and theory and employment relations as an area of
practice are built mainly around the various forms of the employment relationship. This relationship
is, in turn, a key feature of our modern society, where organisations that consist of people (and other
resources) deliver the products and services that are required by the people of any society.
Employment relations is thus multidimensional, with an economic dimension at its core, and further
entailing both individual and collective dimensions, as well as formal and informal dimensions and
dynamics.
THE ROLE PLAYERS IN THE EMPLOYMENT RELATIONSHIP
Nel & Kirsten (2020:16) state that “A complex and dynamic open system of formal, informal,
individual and collective relationships and interactions between a range of role-players and
stakeholders, including the two most direct and actively involved parties of employers and their
representatives on the one side, and workers and their representatives on the other side, but with the
State, and its representatives and relevant institutions also being a key party.” (See Table 1 below)
T A B L E 1 – R O L E - P L A Y E R S I N T HE E M P LO Y M E N T R E LA T I O N S H I P
Key roleplayers
Employers and their representatives
(employers’ organisations)
The company
The owners
The board of directors
Employees and their representatives (trade Various types of
unions and trade union federations)
employees
Trade unions and trade
union officials
State and their representatives (Minister of Minister of
Employment and Labour, NEDLAC)
Employment and
Labour
Labour Court
Other role- Customers
players
Competitors
Therefore, Nel & Kirsten (2020:22) make the following interesting statement: “We believe that a
‘multipartite’ perspective will be more appropriate.”
ACTIVITY:
Discuss this statement by Nel & Kirsten (2020): “Employment relations is multidimensional, with an
economic dimension at its core, and further entailing both individual and collective dimensions, as
well as formal and informal dimensions and dynamics.”
Activity Memorandum:
This statement refers to the fact that the employment relationship develops around the relationship
between the employer (who provides the work) and the employee (who provides his/her service).
Within this relationship, there are individuals, who are represented on a collective basis by various
bodies, such as the employers’ organisations, trade unions, etc. This relationship can be informal –
marked by daily interactions, but it is also formal, as provided for in the labour legislation.
THE CENTRALITY OF PERCEPTIONS OF JUSTICE IN EMPLOYMENT RELATIONS
The perception of justice (re: organisational resources and activities) plays an important role in
shaping the interaction between the parties in employment relations. Nel & Kirsten (2020:24–30)
discuss this concept, and make provision for three dimensions of justice, i.e., distributive justice,
procedural justice and interpersonal (also referred to as ‘interactional’) justice. Dunaetz (2020) makes
provision for a fourth dimension, i.e., informational justice. These dimensions could be summarised as
follows:
DISTRIBUTIVE JUSTICE
This refers to the perceived fairness in the distribution of resources, especially in relation to effort and
pay (equity theory).
Perceived unfairness could lead to poor work performance, high absenteeism rates, high staff
turnover, and even an increase in industrial action.
PROCEDURAL JUSTICE
This refers to the perceived fairness of the processes and procedures followed in reaching certain
decisions/outcomes.
Important criteria for a fair procedure includes:

Consistency, i.e., applying the same procedures to all employees over time

Bias suppression, i.e., the prevention of self-interest in the decision-making processes

Accuracy, i.e., to base decisions on accurate information

Correctability, i.e., to correct decisions if necessary

Representativeness, i.e., all stakeholders concerned should be involved in the various
processes of decision-making

Ethicality, i.e., integrity
This could have an influence on both the formal and informal dimensions of the employment
relationship.
Legislation such as the Employment Equity Act (no. 55 of 1998) and the Labour Relations Act (no. 66
of 1995) play an important role in this regard.
INTERPERSONAL JUSTICE
This refers to the manner in which outcomes are communicated to employees at an interpersonal
level, i.e., the perceived fairness of treatment by decision-makers.
Important aspects include:

Interpersonal treatment – the treatment of employees received from decision makers
(respect, courtesy, and friendliness)

Adequate causal accounts – the use of adequate explanations for the outcome or decision
reached
Important elements to interpersonal justice include:

Neutrality, i.e., elimination of bias in terms of using facts and accurate information (openness
and honesty)

Trust, i.e., the degree of perceived fairness and compassion of the decision maker

Standing, i.e., respect and courtesy shows the employee the decision maker values him/her
as a person with certain rights
CONFLICT DYNAMICS
Conflict is well known to most people, and it is very common in modern society. However, it is often
not a fully grasped concept. Conflict essentially involves some form of competition, differences, or
tension. It is important to keep in mind that conflict forms an inherent part of the interaction
between parties in employment relations. That said, conflict is a process, which is dynamic, and it has
to do with change.
It is usually associated with something negative, such as negative emotional qualities and behaviour,
such as anger, threats, and lack of co-operation. It is the sensational aspects that are mostly covered
by the mass media. It is thus quite a common perception that conflict is destructive and undesirable.
A number of issues have been identified that may be regarded as causes of conflict, including the
following:

Different values, attitudes, or perceptions

Different objectives or methods of achieving them.

Differences in information or communication blockages

Lack of resources (scarcity)

Skewed distribution of resources (structural imbalances)

Personality differences
POWER DYNAMICS
“Power is a further central component of the dynamics underlying the interaction between the roleplayers in employment relations” (Nel & Kirsten, 2020:32). Trade unions, the government and the
employer parties draw on differential power bases in their interactions with one another. Power, in
this case, can be seen as a medium through which divergent aims and interests are mediated and
resolved. Power is thus closely linked to the processes of addressing and resolving conflict.
As early as 1959, French and Raven identified the following five bases of power, which are still used
commonly today:

Legitimate – This comes from the belief that a person has the formal right to make demands,
and to expect others to be compliant and obedient.

Reward – This is the result from one person's ability to compensate another for compliance.

Expert – This is based on a person's high levels of skill and knowledge.

Referent – This is the result of a person's perceived attractiveness, worthiness and right to
others' respect.

Coercive – This comes from the belief that a person can punish others for noncompliance.
THE INTERPLAY BETWEEN EMPLOYMENT RELATIONS AND ITS BROADER
ENVIRONMENT
Employment relations do not exist or function in isolation. It is an open system, which implies that
employment relations dynamics are heavily influenced by and in turn have an influence on other
subsystems of society (Nel & Kirsten, 2020:34). Changes in the macro environment of an organisation
could have a spillover effect and may ultimately influence the quality of employment relations in the
workplace. On the other hand, what takes place in the workplace (positive or negative) could spill
over to the external environment and the country at large. (See Figure 1 below.)
Employment in the workplace is also influenced by organisational-level factors such as:

General management-related factors

Structural factors

The organisation context
Figure 1 – Employment relations
Source: (Nel & Kirsten, 2020:34–44).
Activity:
Explain the interplay between employment relations and the environment in which they manifest,
with specific reference to macro-external factors and organisation-level factors.
Activity Memorandum:
Socio-economic factors:
Factors such as, but not limited to, a country’s economic growth rate, inflation, taxation and interest
rates may have an effect on employment relations. These factors affect employment and salary levels.
Social and political dynamics:
With the advent of the political change in South Africa in 1994 the new government introduced
several pieces of legislation which impact the employment relations field. In addition to these
changes, trends, such as the following trends have been observed:

Political democracy has resulted in demands for workplace democracy

Growing levels of expectations among workers and the unemployed

Pressure on the private sector to combat poverty and raising standards of living

Crime has spilled over into the workplace arena

Demands in terms of education and training

Changes in value systems
Organisational factors include:

Prerogatives have been challenged relative to entering new markets, expanding the
organisation and cutbacks.

Changes in structures relative to operational processes and technologies used in production
hold employment relations implications.

Contextual factors, such as ownership, size, geographic distribution and location of the
organisation also have an impact on labour relations.
CHAPTER 2: ROLE PLAYERS AND STAKEHOLDERS IN EMPLOYMENT
RELATIONS
ROLES OF PARTICIPANTS IN TRIPARTITE RELATIONSHIP
Management
•
Representative of employers.
•
Must see to it that the right things are done in the right way in order to realize the ultimate
objectives of the enterprise.
•
Represented by employers’ organisations.
Employees
•
Workers “sell” or “hire out” their labour potential to the employing party to perform a specific
task.
•
They are represented by employee organisations (trade unions) which may be members of
umbrella trade union federations such as NACTU or COSATU
The State
•
The government plays role of both master and servant of the two primary participants
(management and employees).
•
Master: it makes the laws that ensure that ER is practiced in such a way that the general order
in society is not disrupted.
•
The government institutions that play a role through law enforcement include the Department
of Labour, the CCMA, and the Labour Court.
•
Servant: because it helps both primary parties to conduct their relationship in orderly fashion.
ADDITIONAL PARTICIPANTS IN THE PENTAGONAL RELATIONSHIP
Competitors
•
No organisation can survive in the long run without taking cognizance of what other
organisations are doing, since they can deliver new or alternative products that threaten the
organisation’s success.
Customers
•
The way employees treat customers and what customers think of the products of an
organisation that are sold via employees are major additional considerations in the employment
relations environment.
•
Customer behaviour holds potential implications based on how employees treat the customer.
MANAGEMENT AND EMPLOYERS’ ORGANISATIONS
GENERAL
•
•
•
Entrepreneurs: people who risk their money to start enterprises that provide goods
and services to satisfy people’s needs.
They are the owners of the business who use their money and expertise to start
and maintain satisfying the needs of consumers and users of service.
Often the owner cannot manage or organize all the production factors singlehandedly and must obtain the assistance of other people.
EMPLOYERS ORGANISATIONS
Definition: An employer’s organisation is a formal, voluntary grouping of employers set up to advise,
defend or represent the interests of affiliates, not only in their dealings with organized labour, but
also to lobby and influence the state or other relevant organizations (Finnemore 2009: 149).
 Individual employers do not formally have collective representation in the industry in which
they work.
 It is common practice to form organisations that can represent employers in a collective
manner concerning all issues that affect them BECAUSE the individual employee is more
powerful than the employer acting in a collective manner through an employee organisation
such as a trade union.
 Their objectives often include all activities relating to the regulation of their relationship with
the employee trade union, such as the settlement of disputes and the promotion of legislative
measures.
SECTORAL EMPLOYERS’ ORGANISATIONS
 •
Although an employer’s organisation may be sectoral, it can also operate nationally,
depending on the type of industry being represented, such as engineering.
 •
Employers’ organisations may form part of a bargaining council through which
collective agreements are published in the Government Gazette and then become delegated
legislation.
 •
On joining a particular employer’s organisation, the employer is bound by any terms,
conditions or collective agreements which have been entered into.
COLLECTIVE INTERESTS GROUPS
 •
The common factor among all employers’ organisations is that they represent the
common and collective interests of their members.
 •
Therefore individual employers’ views are subject to the consensus view of the group.
 Employers’ organisations mobilize the community to ensure that their views are presented in
accordance with those of other decision makers and to lobby government.
 Policy decisions are taken by a governing body, which is supported by a number of specialist
committees to deal with issues such as labour affairs, social policy, economic policy and small
business development.
 There was a need for a joint national umbrella organisation which would represent all
employers’ organisations throughout South Africa to deal with the collective strength of trade
union federations such as COSATU and FEDUSA.
TOP LEVEL ORGANISED EMPLOYER BODIES
•
•
•
•
Employer parties which form and/or join collective employer bodies.
These bodies are general by nature, operating at national level mainly, representing
the interests of their member organisations.
Top level employer bodies are similar to organized labour who create unity at top
level by forming federations and confederations of trade unions.
A single integrated umbrella body = Business Unity of South Africa (BUSA)
BUSINESS UNITY OF SOUTH AFRICA (BUSA)
 It is an integrated body for organized business created on 11 October 2003 when BSA
and the Black Business Council (BBC) were replaced by BUSA.
 BUSA is fully representative of business in all sectors of economic activity in South
Africa.
 Current membership: 49 business associations and employers’ organisations.
 Vision: To be a unified and fully representative organisation that contributes to South Africa’s
vibrant, transforming and growing economy.
 Mission: To ensure that organized business plays a
constructive role, within the context of the country’s
goals for economic growth, development and transformation,
in creating an environment in which business of all sizes
and from all sectors can thrive, expand and be competitive,
both nationally and internationally.
BUSA PURSUES THIS VISION AND MISSION BY:
 –
Acting as the principle representative of business in South Africa in its national,
subcontinental, continental and international spheres of activity to ensure a primary and
consistent representation of the views of the South African business community
 –
Promoting broad-based black economic empowerment (BBBEE)
 –
Advancing and promoting initiatives aimed at job creation and the alleviation of
poverty
 –
Acting for and representing the views of its members at national, subcontinental,
continental, and international levels
 –
Enabling business to play a meaningful strategic role in South Africa’s overall
development
 BUSA manages the processes of social dialogue on behalf of business in NEDLAC.
 BUSA is a mechanism that enables one entity to speak on
behalf of South African businesses as a whole on appropriate issues and on a mandated basis.
TRADE UNIONS
GENERAL
 •
A voluntary organisation of workers
 Definition: A trade union is regarded as a continuing permanent organisation created by
workers to protect themselves at their work, to improve the conditions of their work through
collective bargaining, to seek to better the conditions of their lives, and to provide a means of
expression for the workers’ view on matters of society.
 Trade unions are membership organisations.
 •
They exist because of their members, they serve their members’ interests and they
are governed by the members themselves.
 •
Trade unions serve and protect the interests of their members through:
 –
Bargaining with employer representatives
 –
Challenging unfair managerial decisions by means of various processes
 –
Generally representing workers in interactive processes about er and broader
sociopolitical, economic and other matters
 Trends that may impact the union movement negatively:
 Globalisation: intense competitive pressure in product markets
 More insecure employment: subcontracting, outsourcing and hiring of temporary workers are
becoming more common
 Small business: smaller companies are undertaking more of production through new forms of
industrial organisation
 Geographic dispersion of production: production is geographical dispersed outside the urban
labour market
 Skills composition: the changing skills composition of the workforce may reduce union
solidarity
 Women workers: the entry of women workers changes the priorities and agendas of unions
 Increased unemployment: unemployed may undermine union solidarit
TRADE UNIONS
OCCUPATIONAL UNIONS
Derive their members from
employees in certain
occupation.
Members work in variety of
industries and can be
described as horizontal in
character.
Examples of occupational union
types:
•
craft unions
•
promotion unions
•
unions for unskilled &
semi-skilled workers
•
white-collar unions
INDUSTRIAL UNIONS
For specific industries or
groups of industries.
Members work in industry,
irrespective of trade or
profession.
Examples of industrial trade
unions:
•
mineworkers (NUM &
AMCU)
•
autoworkers
(SATAWU)
•
steelworkers (NUMSA)
GENERAL UNIONS
Do not restrict membership in
terms of skills or industry.
Function on the principle of
communality of worker
interests.
Strive to absorb all workers
(the working class in general).
A FOURTH IDENTIFIABLE TYPE OF TRADE UNION:
•
ENTERPRISE OR COMPANY TRADE UNIONS
–
Membership based around a particular employer party’s organisation
–
Also referred to as ‘in-house’ trade unions
–
Also be categorized as in-house white-collar trade unions
CRAFT UNIONS (TYPE OF OCCUPATIONAL UNION)
•
Thrust or focus on specific skill.
•
Appropriate skills can only be obtained by completing an apprenticeship.
•
Among traditional craft unions are carpenters, plumbers, painters, and bricklayers.
•
Membership is gained by specific craft irrespective of industry
PROMOTION UNIONS (TYPE OF OCCUPATIONAL UNION)
•
An apprenticeship is not required.
•
Specific skill is still required, however skills are achieved by on-the-job training and
promotion.
•
Similar to industrial unions.
•
Strength lies in the strategic importance and skill of the workers they represent.
UNIONS FOR UNSKILLED AND SEMI-SKILLED WORKERS (TYPE OF OCCUPATIONAL UNION)
•
To fill the void left by craft and promotion unions.
•
Do not have the strategic power of craft and promotion unions.
•
Power lies in numbers.
WHITE-COLLAR WORKERS (TYPE OF OCCUPATIONAL UNION)
•
These will organise only workers in a particular industry, such as the Professional Educators
Union (PEU).
Employers and Trade Unions
BUSINESS UNITY SOUTH AFRICA [BUSA]
BACKGROUND TO BUSA
An integrated body for organised business in South Africa was created in 2003 to represent all
employers’ organisations throughout South Africa to deal with the collective strength of trade union
federations like COSATU and FEDUSA. This body is known as Business Unity South Africa (BUSA),
which is a non-racial, umbrella business organisation. BUSA’s focus is to represent South Africa’s
multifaceted business community on macro-economic and other issues that affect it at national and
international levels.
STRATEGIC OBJECTIVES
See BUSA’s mission and vision in Nel & Kirsten (2020:78–79).
BUSA represents business in NEDLAC on issues such as taxation, labour legislation, and business
participation in and support for BEE strategies and processes. BUSA is also the principal
representative of South African employers in international, sub-continental and continental
organisations, such as the International Labour Organisation (ILO) and the World Trade Organisation
(WTO).
ACTIVITY
How important is it for businesses in South Africa that these two bodies work together?
It is important the answer reflects that businesses need to unite – their ultimate objective should be
to represent the interests of all employers in South Africa.
BUSA AND BBC
It is important to note that BUSA represents individual employer-party organisations such as:

ABSA

Investec Ltd

Sanlam Life Insurance Ltd

BMW South Africa (Pty) Ltd

Nissan South Africa (Pty) Ltd

SAPPI Ltd

SAB Ltd

MTN (Pty) Ltd

Vodacom
However, the Black Business Council (BBC) is a separate, independent membership-based
organisation, which represents several professional, business associations and chambers with the
purpose to advocate for transformation in the South African economy. “The main purpose of the BBC
is to represent the interests of black business in the mainstream economy by uniting all affiliates
behind a common vision and purpose and creating and driving programmes of action that position
black business at the centre of economic growth and participation” (Nel & Kirsten, 2020:79).
TRADE UNIONISM
ACTIVITY:
The Labour Relations Act (no. 66 of 1995) defines a trade union as:
“An association of employees, whose principle purpose is to regulate relations between employees
and employers, including any employers’ organisations”.
The definition of a trade union as defined in your textbook (Nel & Kirsten, 2020:83):
“A trade union is a voluntary but deliberately formed organisation, created for and by employees to
enhance organisational and social justice through serving the interests of the working classes in
society and of the employees at their workplace in their employing organisations and industries or
sectors, so as to improve the total work-related experiences, by making use of methods such as
representation advocacy and collective bargaining, and to seek to enhance the quality of their lives,
among others through providing a means of expression of the views of the working classes on matters
of society.”
Nel & Kirsten (2020:89) state that, “at the heart of trade unionism lies the decision of the individual to
join it, take part in its processes and support it.” The reasons for joining a trade union include the
following:

For the protection provided for the employee, i.e., in terms of unfair dismissals, unfair labour
practices, job security, etc.

For the services provided for the employee, i.e., in terms of retirement plans, bursaries
available for dependents of trade union members, financial services, etc.

For the improvement of employment conditions of the employee, i.e., in terms of negotiating
improved conditions of employment, such as maternity/paternity leave, annual leave,
working hours, wages, etc.
Figure 4 – Trade union slogan
Source: https://i.pinimg.com/236x/5e/c3/9c/5ec39cbe321698dd6a15cbeaf0018f8c-labor-unionposter-designs.jpg
The trade union slogan in Figure 4 illustrates the principle of collectivism, on which trade unionism is
built.
It is important to note that “many workers join unions partly because of their political beliefs” (Nel &
Kirsten, 2020:90). After 1994, many unionists went on to hold prominent positions in the newly
elected government. These included (to mention a few):

Mr Cyril Ramaphosa – South Africa’s current President, who was the first secretary of NUM
(National Union of Mine workers)

Mr Jay Naidoo, who was the founding general secretary of COSATU (Congress of South
African Trade Unions), before he became the Minister of Post, Telecommunications and
Broadcasting

Mr Gwede Mantashe, the current Minister of Mineral Resources and Energy at National
Executive used to be the regional coordinator of NUM
TRADE UNION GROUPINGS
Trade unions are grouped into three different types according to their nature and character. They can
broadly be classified into three categories, namely: occupational unions, industrial unions, and
general unions (Bendix, 2015)
OCCUPATIONAL UNIONS
Occupational unions organise and recruit their members from employees in certain occupations –
thus in accordance with their skills (Nel & Kirsten, 2020:87–88). These trade union members
therefore work in a variety of industries or sectors, or they may form part of a particular sector or
industry. They are grouped into different occupational unions:

Craft unions
Craft unions organise people in a certain trade with a specific occupation, for example, electricians,
plumbers, and carpenters. Their main aims are to protect the status, standard of training, restrict
apprenticeships and ensure that defragmentation of employees’ jobs do not occur.

Promotion unions
These unions have been formed to represent unskilled and semi-skilled, blue-collar workers within or
across certain related industries. These unions develop their own strategic power around the number
of workers they organise and mobilise and become somewhat like general unions.

White-collar unions
These are unions that mostly look after the interests of white collared workers by protecting their
professional standards and status. Examples include academics, bankers, and teachers.
INDUSTRIAL UNIONS
Industrial unions aim to organise workers from a well-defined type of industry, for example, food,
textile, chemical, but not by the job performed. Industrial unions comprise primarily of semi-skilled
blue-collar workers (e.g., NUMSA).
GENERAL UNIONS
General unions do not restrict membership in terms of skill or industry but are determined by their
constitution. This type of union functions on the principal of communal worker interests. It strives to
absorb all workers; thus, the working class stands united against the owner’s class – labour against
capital (Swanepoel & Slabbert, 2012).
TRADE UNIONS SERVE THE INTERESTS OF THEIR MEMBERS
Trade unions are membership organisations. They are therefore there to represent and protect the
interests of their members.
THE EMPLOYEE AND TRADE UNIONS
The employee is a primary party to the tripartite relationship. Employees are often collectively
represented by trade unions and so the employer-employee relationship is also frequently referred to
as the management-union relationship.
ORIGINS OF SOUTH AFRICAN TRADE UNIONS
The role of trade unions in dismantling apartheid legislation and practices in the workplace remain
one of their major achievements. During the apartheid era, they succeeded in showing employers the
benefits of negotiating with employees through their representative unions. The fruits of these
negotiations included agreements on union recognition, wages, conditions of service, workplace
restructuring and retrenchments.
Trade unions are recognised in the Constitution, which provides for the right of workers to join trade
unions, and for unions to collectively bargain and strike. The Labour Relations Act has given workers
and their unions redress through mediation, conciliation, and arbitration. South Africa accepts that
strong trade unions are necessary for effective collective bargaining, which is an important way of
regulating industrial relations and of determining workers' wages and benefits (Nel & Kirsten, 2020:
83–84). Trade union representation is now an accepted facet of industrial practice. Almost all sectors
of the economy, including the public service, have representative unions which engage employers
over issues affecting their workforce.
All workers and active job seekers have the right to join and be active in trade unions. And they are
legally protected against discrimination by employers for being union members.
THE ROLE OF THE SHOP STEWARD IN THE WORKPLACE
As part of the organisational rights of a majority, registered trade union, the Labour Relations Act (no.
66 of 1995) makes provision for the election of trade union representatives (also known as shop
stewards). The trade union representatives operate on plant level, and they can be either full time or
part time. They are selected by their members to represent them in various situations.
STIPULATIONS FOR SHOP STEWARDS
A trade union may contain the following stipulations with regards to shop stewards. A shop steward
shall always:

Be responsible to an executive committee for their actions and always conduct themselves in
a manner worthy of a representative of the union

Apply themselves to bring about and to promote the best possible relationship and good
cooperation between the members in their section and their sectional heads

Confine themselves strictly to the affairs of their section and shall under no circumstance
discuss matters concerning the policy or principals of the union with management or any
other representative

Report all grievances, complaints, and suggestions for improving working conditions in their
section that was reported to them

Call for assistance from the union when they are not able to arrive at a mutual satisfactory
solution

Be highly sensitive to the branch committee and the local officer

As far as possible attend all branch committee meetings of their branch so that they can reply
directly to any questions which may be raised in connection with the handling of any matter
entrusted to them

Present written reports every month to their branch committee on all matters entrusted to
be dealt with by them
THE SHOP STEWARD’S MAIN ROLE AND FUNCTION
The primary role of the shop steward is to ensure and maintain the equilibrium in relations between
management and labour within the framework of existing rules, regulations, and customs, since it is
precisely the role that creates efficient liaison between the interests of management and workers
(Nel & Kirsten, 2020:94).
Apart from their main function, a shop steward has seven further functions (Nel & Kirsten, 2020:95):

They must carry out their duty as a member of the branch committee team and be
responsible for the effective organisation of their branch and report to the branch
committees on all problems that may arise among members, or between management and
members.

They are responsible for enrolling members for their trade union, and in the case of any close
shop agreements, they must ensure that workers and management adhere strictly to
procedures.

As shop stewards are fully aware of the regulations of their trade union’s constitution,
particularly in matters pertaining to membership and benefits, they will inform and assist
members when completing and submitting claims for appropriate benefits.

The shop steward must encourage members to attend trade union meetings regularly and to
actively participate in discussions.

They are responsible for keeping their trade union informed about the needs of their fellow
workers and the general conditions in the trade, insofar as these matters affect the workers’
position.
In the work situation, they guard the interest of members and see to it that:

Both parties (sides) adhere to the stipulations of the agreement

All activities comply with the relevant safety regulations

The first-aid cabinet is fully stocked

All procedures are followed in the case of injuries or trade illnesses

Workers regularly consult the official notice board to be informed of any new developments

Advise and assist members in matters concerning statutory and bargaining council benefits
Liaison functions performed by a shop steward involve:

Discussing valid complaints with management through the correct channels and obtaining
finality on the matter

Ensuring management uses at least one of the official languages which the member can
understand and be understood.

Discussing resolutions of management with workers
ACTIVITY:
Figure 5 – Types of trade unions
Source: (Nel & Kirsten, 2020:87–89).
Compare and contrast between White collar and Craft unions.
White collar unions were the first trade unions that were established. These trade unions were
created by skilled workers to maintain the privileged positions they held in society. They predated
factories in Britain in the form of ‘trade clubs’ to which skilled members of a specific craft belonged.
These clubs:

Were used for entertainment

Acted as friendly societies (workers banded together to help each other during crises)

Acted as an employment exchange

Were used to protect working status (to fight for higher wages, to maintain wage
differentials, customs, and craft standards)
Craft unions realised the necessity of ‘keeping their work scarce’ by:

Maintaining control of the number of apprentices in training (limiting number of artisans)

Insisting on high levels of qualification and training

Disallowing the performance of section of their work by members of other unions, or workers
with different skills (job demarcation)
THE ROLE OF THE STATE IN THE TRIPARTITE RELATIONSHIP
The employee and the employer are the main parties to the employment relationship, the State is a
secondary partner and fulfils a regulatory and protectionist role (Nel & Kirsten, 2020:104). However,
there is one instance where the State becomes a full partner in the employment relationship, and
that is when it also fulfils the role of employer in the public sector.
The State is made up of three parts (see Figure 6 below):

Executive – This refers to the government, made up of the elected political leaders. The
Executive is therefore responsible for ruling the country through different departments or
ministries. Each department is responsible for a different issue – for example, there is one for
health matters, one for education, and one for sport. The Executive is a committee of all the
heads of these departments. This is called the Cabinet.

Legislature - To legislate means to ‘make laws'. The legislature, or Parliament is where our
elected representatives, the members of Parliament (MPs) meet to discuss matters and
decide on new laws. The word Parliament comes from the French word for "to speak". So, the
Parliament will also develop the legislation to regulate the employment relationship, for
example, the Labour Relations Act (no. 66 of 1995), the Basic Conditions of Employment Act
(no. 97 of 1997), etc. – which will be discussed in Week 6 and 7.

Judiciary - The Judiciary is the court system. This is the part of government that has to make
sure that those who do not keep the law are punished. There are different levels of courts, for
example, the Labour Court and the Labour Appeals Court.
(See ‘South African History Online. n.d. Structure of Government in South Africa. [Online] Available
at: https://www.sahistory.org.za/article/structure-government-southafrica#:~:text=The%20South%20African%20government%20is,and%20Judiciary%20the%20courts [Ac
cessed on: 25 September 2022].)
Figure 6 – The three parts that make up the State
(Source: https://www.parents.com/thmb/CX3kdHv0AOT7y11xxC2fNS4AdQ=/2000x1333/filters:fill(auto,1)/The-Three-Branches-of-Government-Explained-for-Kids-2000e26328ac3cc74419a7618ab564e59622.jpg)
How does the State regulate employment relations?
The South African State provides for the regulation of employment relations primarily through two
contributions (Nel & Kirsten, 2020:106):

Including labour rights in the country’s Constitution and ensuring the observance of these
rights through the development of a labour legislation

Setting up the National Economic Development and Labour Council (NEDLAC) where
“employees, employers and the state regulate the employment relationship through
cooperating, negotiating, and making decisions together”
THE ROLE OF THE DEPARTMENT OF EMPLOYMENT AND LABOUR
“The Department of Employment and Labour play a pivotal role in South African employment
relations, as it is the government institution responsible for the execution of labour policy” (Nel &
Kirsten, 2020:107). It is important to note that the Minister of Employment and Labour has to:

Oversee the functions and activities of the Department

Must balance economic pressures, labour demands and disputes between the primary
participants (employees and employers) to obtain a workable consensus for the good of the
country as a whole
You will be able to find a detailed description of the workings of the Department of Employment and
Labour in Nel & Kirsten (2020:107–110).
[NEDLAC] NATIONAL ECONOMIC DEVELOPMENT AND LABOUR COUNCIL
NEDLAC is the acronym for the National Economic Development and Labour Council and comprises
the State, trade unions and employer organisations.
NEDLAC (Nel & Kirsten, 2020:112):

Promotes economic growth, participation in decision making and social equality.

Strives for consensus and to come to agreements on matters affecting social and economic
policy.

Considers all proposed legislation relating to labour market policy before it is presented to
Parliament.

Considers all important changes to social and economic policy before they are implemented
or presented to Parliament.

Encourages and promotes the formulation of coordinated policy on social and economic
affairs.
The four major stakeholders in South African society that participate in NEDLAC are (Nel & Kie,
2020:113):

Organised labour, represented by COSATU, NACTU and FEDUSA

Organised business, represented by BUSA

Government, represented by the Department of Employment and Labour, Department of
Trade and Industry, and Department of Public Works, as well as National Treasury

A number of organisations that make up the community representation, such as the National
Women’s Coalition, the South African National Civics Organisation, the South African Youth
Council, Disabled People of South Africa, the National Cooperatives Association of South
Africa, and the Financial Sector Campaign Coalition
It is important to note that the Minister of Employment and Labour is the link between NEDLAC and
government. “All NEDLAC agreements, reports and findings are made public and tabled in parliament
by the responsible minister” (Nel & Kirsten, 2020:113). All amendments to existing legislation would
therefore be discussed at NEDLAC and referred to parliament by the Minister of Employment and
Labour for final decision.
Activity:
Who is the current Minister of Employment and Labour?
Mr TW Nxesi was appointed as Minister of Employment and Labour on 30 May 2019. He was Minister
of Public Works from 27 February 2018 to 25 May 2019.
CHAPTER 3: DEVELOPMENT OF SOUTH AFRICAN EMPLOYMENT
RELATIONS
THE ORIGINS OF SOUTH AFRICAN LAW
Race is a fundamental variable shaping and affecting the context in which employment relations in
South Africa exist. Historically, race in South Africa determined one’s political rights, one’s location in
the labour market, and thus one’s income, the quality of one’s education and also one’s sense of
identity (Nel & Kirsten, 2020:132–133).
The early part of the Industrial Revolution was not experienced in South Africa, as Europe is
geographically far away. Although the Industrial Revolution had started in England during the 18th
century, it was 150 years later that South Africa started feeling the effects of this revolution (Du
Plessis & Fouche, 2012).
The history of South Africa is marked by immigration and ethnic conflict. Following the colonisation of
the Cape in the 17th century, slavery was an important source of labour. Notwithstanding the freeing
of slaves during 1834, aspects of the slave system were introduced in the subsequent system of free
labour (Du Plessis & Fouche, 2012).
TOWARDS AN INDUSTRIAL CONCILIATION MECHANISM
The first unions came to South Africa at the end of the previous century, just after the discovery of
gold and diamonds on the Witwatersrand in 1879. The first South African trade union (based on the
British model – Guild System) came into being in 1892, but for the local population it proved to be a
foreign concept. Workers gradually realised, however, that the trade union was a valuable means of
maintaining their socio-economic position.
As the mining industry on the Rand grew to be the major industrial and economic centre of South
Africa, so did the form of trade unionism on the Rand become the dominant force in trade union
politics and leadership in the country. Mining companies now had to compete on high wages to
attract the necessary skills for the mines, while the unskilled work was done by the Africans (Du
Plessis & Fouche, 2012).
THE 1900S TO THE 1970S
Trade unionism in South Africa at that stage was only for the skilled and highly paid labour. By 1910
there were only 3 800 trade union members in the country. By 1920, union membership had
increased to 135 000 and there were 90 unions.
Some historical dates and events during that period (Du Plessis & Fouche, 2012):

1904 to 1909 – Chinese labour was used in the mines.

In 1920, the first major strike was recorded in the mining industry when 71 000 workers took
part at one time or another over a period of a week. The strike was essentially over low wages
and the pass system. The strike was started by the secretary, Clement Kadalie, (a Malawian by
birth) of an organisation of black and coloured railway and harbour workers in Cape Town.

In 1922, the Rand Revolt Strike took place (the Rand Revolt) because white employees felt
that they were not being adequately paid for their work. The white employees were also
afraid that employers might take on more cheap black labour. The 1922 Rand Revolt Strike
can be seen as a white reaction in order to protect their own interests.

The first trade union for black workers was the Industrial and Commercial Workers Union of
Africa (ICU). This was essentially a Cape organisation that was started in 1923. By 1927, the
ICU was established in all four provinces. In 1928, Kadalie resigned, and due to some other
problems, the union was discontinued.

The Industrial Conciliation Act of 1924 was passed by government. Laying down principles of
industrial self-government. This law did provide unions with legal protection and status which
many of them sought. Black workers, however, were excluded.

The 1930s was marked by the Great Depression.

During 1941, various union groupings established the Council of Non-European Trade Unions.
And by 1945, they claimed some 158 000 black members.

An African Mine Workers Union came into existence in 1941 and by 1945 they had some
25 000 members. Their demands in those days ranged from regular wage increases to the
living conditions on the mines.

1946 saw another major strike in the mining industry, the State stepped in and arrested and
tried most of the leading figures in the Communist Party.

Through the 1920s, 1930s and 1940s, another development was also taking place in that
Afrikaners slowly started coming into the industry and English-speaking workers were no
longer the holders of the better jobs.

In 1948, the National Party won the election and came into power and South Africa’s labour
laws were tightened up even more so as to exclude black people from advancing in industry
and threatening the jobs of white people.

In 1952, the Black Labour Relations Regulations Act appeared, prohibiting strikes by black
workers, while making negotiations possible between management and black workers in
Works and Liaison Committees. These regulations did not, however, allow negotiations to
take place on a level comparable with that of trade unions. The Industrial Conciliation Act of
1956 provided for separate trade unions and for job reservation. Since black trade unions
could not register with the Department of Labour, they could not participate in Industrial
Council proceedings and were generally rejected by most employers.
According to this legislation White, Coloured and Asian people, under the Industrial Conciliation Act,
could belong to a trade union of their choice. This trade union would represent these employees
when negotiating with employers who belonged to the Employer Federation. This whole system was
under the Industrial Council system with the Minister of Labour being the highest authority.
Black people, however, were not covered under the Industrial Conciliation Act and were not allowed
to belong to a registered trade union. This was not fair as black people made up 70% of the South
African labour force and they also wanted recognised union membership. Because black people were
not covered under the Industrial Conciliation Act, there was another law called the Black Labour
Relations Act, which was only for black people. This act allowed black people to form either Liaison or
Works Committees, which were seen by the Government as a replacement for unions. These
committees would negotiate with the employer on all matters and were controlled by the Central
Black Labour Board.
These committees, however, did not really work well, as they were a very poor replacement for
proper trade unions. Trade unions get their strength from their membership and independence from
the employer, and the liaison/works committees did not have ‘members’ and were also not
independent from employers and management. Professor Nic Wiehahn recognised the weaknesses of
the committee system, and he proposed that both the Industrial Conciliation Act and the Black Labour
Relations Regulation Act be done away with and combined into one law that would be for all race
groups.
Over the years up to the 1970s, more and more trade unions were developed which catered mainly
for white employees. One or two catered for black and Coloured employees. The law defined the
meaning of ‘employee’, which excluded black people, and meant that only White, Coloured and Asian
people, could belong to trade unions, but not black people. The situation changed in the 1970s due to
several reasons (Du Plessis & Fouche, 2012):

Serious strike activity in Natal in 1973

The Oswego riots of 1976

Pressure for companies with head offices outside South Africa to improve working conditions
and wages of black employees
Both the Natal strikes and the Oswego riots forced the government to reconsider aspects of
governmental policy. One of the aspects that was considered was the subject of trade unions for black
people. Even during the 1920s, black people were pushing for recognition of their right to belong to
trade unions.
The pressure from companies with head offices outside South Africa took the form of Codes of
Employment Practice. An example of such a code is the Sullivan Code drawn up by the Reverend Leon
Sullivan from America. Many American companies operating in South Africa apply this code. All these
codes focused on ensuring that black and Coloured employees received equal and fair treatment
compared to white employees.
The Government’s decision to rethink the subject of recognising trade unions for black people gave
rise to the Wiehahn Commission in the late 1970s. Because of pressure from black people for trade
union rights, and because of much labour unrest, Professor Wiehahn was appointed to do an in-depth
study of the laws affecting Labour Relations in South Africa, and to make recommendations about
changes to the laws.
Activity:
Discuss the features of the first five-year plan to transform the labour market.
Activity Memorandum:

A commitment to the creation of a social partnership between the private sector and
government

A commitment to dismantling protective economic barriers

A commitment to the alleviation of unemployment
EMPLOYMENT RELATIONS IN SOUTH AFRICA AFTER 1994
In 1994, the first democratic elections took place in South Africa. Read Nel & Kirsten (2020:148–154).
Highlight the most important events and discuss in the class how South Africa’s transition to
democracy impacted on employment relations.
Important points to consider:

The Constitution was adopted in 1996. The lockout clause in the Constitution resulted in mass
protest and shop floor conflict.

The Truth and Reconciliation Commission (TRC) was launched.

The first non-racial local government elections were held.
Look at the dates of these acts – all within the 5 years following the change in government:

Labour Relations Act (no. 66 of 1995)

Basic Conditions of Employment Act (no. 75 of 1997)

Employment Equity Act (no. 55 of 1998)

Skills Development Act (no. 97 of 1998)

Skills Development Levies Act (no. 9 of 1999)
THE PERIOD FROM 1994 TO 2004
COSATU formed a tripartite alliance with the ANC and the South African Communist Party (SACP),
which enhanced the prominent position of the federation in both the labour relations and socio-
political spheres. Dominated by the ANC, the newly elected Government of National Unity (1994) was
seen as pro-labour, as many unionists took up positions in it. The country’s new Constitution
(Constitution Act no. 105 of 1996) also reflected Government’s position as far as this was concerned.
The National Economic Development and Labour Council (NEDLAC) was formed in 1995 to promote
consultation between government, labour, and business on economic and labour issues. The newly
elected Government revised all existing labour legislation to bring it into line with the international
standards of the International Labour Organisation. The following labour laws were promulgated
under the new Government:

Labour Relations Act (no. 66 of 1995)

Basic Conditions of Employment Act (no. 75 of1997)

Employment Equity Act (no. 55 of 1998)

Skills Development Act (no. 97 of 1998)

Skills Development Levies Act (no. 9 of 1999)

Unemployment Insurance Act (no. 63 of 2001)
The trade unions’ focus was no longer on the liberation struggle but more on the initiation and
formulation of employment policies. Union membership increased in 1997 to 3.2 million (22.2% of all
employees), with Cosatu dominating the union movement.
Strike activities continued, with the two most significant ones being:

The Eskom strike in 2001 – wage increases

National strike against privatisation by the Cosatu federation in 2001 – involved about
1 million workers
“The question of Aids and related problems became a major area of focus in employment relations in
South Africa. The programme announced by Daimler Chrysler South Africa in 2002 in partnership with
Numsa became a model of cooperation to deal with this pandemic” (Nel & Kirsten, 2020:152).
The labour legislation introduced by the ANC has been widely criticised as generally interfering too
drastically with market forces by (Finnemore & Van Rensburg in Nel et al., 2012:95):

Giving too much power to employees and trade unions

Stifling small businesses by imposing centralised bargaining agreements on them

Providing too much protection for employees from dismissal for misconduct or incapacity

Promoting affirmative action and creating new inequalities, inefficiencies, and tension in the
workplace

Placing too many requirements on employers, leading to disincentives to employ labour, and
resulting in a shedding of labour, which contributes to high unemployment

Failing to prevent strikes, which was its intention

Doing too little for the unemployed
On the other hand, a report on what the ANC-led government achieved in the first decade reflect the
following (Nel & Kirsten, 2020:153–154):

1.8 million hectares of land had been redistributed

The previously racially divided education system had been integrated

More than 70% of households had been electrified

An additional 9 million people had been given access to clean water

More than 1.6 million houses had been built for the poor

More than 1.9 million housing subsidies had been provided
FROM 2004 TO TODAY
Nel & Kirsten (2020:154–155) state that the trade unions became more militant and there was an
increase in strikes, e.g.:

In 2005 – 2 627 953 days lost due to strike activities

In 2006 – 4 152 563 days lost due to strike activities

In 2010 – over 20 million days lost due to strike activities (keeping in mind the 2010 World
Cup Soccer was hosted by South Africa)
“All of the strike action had by now damaged the government’s profile… President Zuma was criticised
as failing to lead towards speedy changes, including those on the macroeconomic front. NUM’s
general secretary, Frans Baleni, for instance, said that the government under Zuma’s leadership has
not inspired confidence in the battle against materialism and corruption. Some ministers are driving
around with cars worth over R1 million” (Nel & Kirsten, 2020:157). During this time (2010), South
Africa were still faced with the persistent problems of poverty, high unemployment, and inequality,
and in addition to this, the crime and corruption levels were becoming alarmingly high.
Even though there was political empowerment, it seems that the majority of South Africans did not
benefit from the transition. The inequalities within the black population of the country became more
and more widespread, while the white/black wealth gap had been shrinking.
“South Africa has the worst labour-employee relations in the world, ranking 137 out of 137 countries,
according to the World Competitiveness Report 2017-2018 released by the World Economic
Forum” (Cillié, 2022).
In 2019 at the State of the Nation Address, President Ramaphosahad to acknowledge that South
Africa remained “…a highly unequal society, in which poverty and prosperity were defined by race and
gender. Poverty and unemployment levels were rising, and inequality persisted… Radical economic
transformation, aimed at improving the position of especially black women and communities, was
also prioritised and the implementation of a national minimum wage was confirmed” (Nel & Kirsten,
2020:163–164).
Cillié (2022) warns that “the efficiency of a country’s labour market is directly linked to GDP, longterm growth, overall prosperity, and competitiveness on a global scale. The unhealthy state of our
labour-employee relations will have a direct impact on organisational performance which can
seriously threaten our ability to create a sustainable, lucrative, and productive future for the next
generation.”
Activity:
The RDP was introduced to address the imbalances of the past. Briefly discuss the three phases the
RDP went through.

A realisation that the economy was not big enough to support development

The implementation of the presidential projects, which included inter alia, free hospitalisation
for children under 6 and pregnant mothers; and a school feeding scheme which failed

Disenchantment by deprived communities when the government shifted its focus to
economic growth
CHAPTER 4: CORE LABOUR LEGISLATION IMPACTING ON THE
EMPLOYMENT RELATIONSHIP.
Various Contracts in the Employment Relationship and the Background to the Labour Relations Act (no.
66 of 1995)
THE EMPLOYMENT RELATIONSHIP: LEGAL PERSPECTIVES
Important points to keep in mind when considering the background of the employment relationship:

The principles of common law were laid down before the 19th century and were based on the
old Roman Dutch Law.

The Industrial Revolution introduced the concept of ‘collectivity’.

Common law was only applicable to the individual – industrial legislation had to build the
collective aspect of the employment relationship (e.g., collective agreements, trade unions,
etc.).

Contract of employment serves as the foundation of every employment relationship – public
and private sector; individuals and groups.

Parties who agree that one will work for another and be paid a certain amount have entered
into a contract, and this will be governed by common law and hence will have certain rights
and duties which will be enforced by the civil court.

The contract of employment must comply with the requirements set for all valid contracts.
REQUIREMENTS OF A VALID CONTRACT
Table 2 – Requirements for a valid contract
Requirements for all valid contracts
The parties must have contractual capacity.
Performance of the contract must be possible (i.e., if a person professes to be a
welder, he should be able to weld according to a certain acceptable standard).
The contract may not be contra bonos mores (against public moral values).
The contract must comply with any formalities which may be prescribed (e.g., all
apprenticeship contracts must be in writing).
The parties must intend to be bound by the contract and reach consensus on the
essential terms of the contract (e.g., salary, working hours, etc.)
Source: Nel & Kirsten (2020:180)
CONTRACT OF EMPLOYMENT
A contract of employment comes into existence as soon as one person agrees to work for another. It
is important to note that it doesn’t need to be a written, formal contract. If a verbal agreement has
been reached, the parties to the agreement will be expected to abide by the terms of that agreement.
If an individual works for some time under certain conditions, these conditions in the absence of any
statement to the contrary, implicitly become the terms of his/her contract. It is, however, preferable
that a written contract is concluded. This is specified by the terms of the Basic Conditions of
Employment Act (no. 75 of 1997). Should the employee be illiterate, the terms and conditions of the
contract of employment need to be explained in a language that he/she understands.
The contents of the contract of employment usually include the following:

Job description

Remuneration (basic salary, overtime, and bonuses)

Working time per day and per week

Leave in terms of annual leave, sick leave, maternity leave, paternity leave, family
responsibility leave, study leave, etc.

Benefits, such as pension or retirement fund, medical aid, housing, etc.

Protection of the company’s interests (confidentiality and restriction of trade)

The period of the contract (see the different types of contracts below), retirement age and
period of notice

Requirements for closed-shop agreements or agency shop agreements (discussion on this
follow later)

Occupational health and safety regulations

Disciplinary rules

Any relevant procedural or substantive agreement between employer and trade union
In terms of their contract of employment, both the 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 (Nel & Kirsten, 2020:180).
It is important to keep in mind that the contract of employment is subordinate to the various labour
laws in South Africa. The parties may therefore not accept conditions which are less favourable than
those for which provision has been made in:

The Basic Conditions of Employment Act No 75 of 1997

Bargaining council agreements

Any other collective agreements

Conditions set by the Occupational Health & Safety Act No 85 of 1993
WHO IS AN EMPLOYEE?
Employee
Employee can be defined as (Nel & Kirsten, 2020:522):

Any person, excluding an independent contractor, who works for another person or for the
State, and who receives, or is entitled to receive, any remuneration

Any other person who in any manner assists in carrying on or conducting the business of an
employer
Section 83A of the BCEA goes further in the definition of "employee”. It states that:
A person who works for, or renders services to, another person, is presumed, until the contrary is
proved, to be an employee, regardless of the form of the contract, if any one or more of the following
factors is present:

The way the person works is subject to the control or direction of another person.

The person's hours of work are subject to the control or direction of another person.

In the case of a person who works for an organisation, the person is a part of that
organisation.

The person has worked for that other person for an average of at least 40 hours per month
over the last three months.

The person is economically dependent on the other person for whom that person works or
renders services.

The person is provided with tools of trade or work equipment by the other person.

The person only works for or renders services to one person.
INDEPENDENT CONTRACTOR
Arnold (2021) states the following:
“Independent Contractors provide a service and are hence paid to render that particular service. An
Independent Contractor is not subject to the control or direction of the organization or company or
person, which would be called his, her or its client. Essentially, the Independent Contractor is doing
the work as part of his or her or its own business. On the contrary, Employees enter into a contract of
employment with an Employer which creates an employment relationship and not a service provider
relationship.”
An independent contractor can therefore be characterised by:

The manner of the person’s work is not directed or controlled by another.

The person’s work hours is not directed or controlled by another.

The person does not form part of the organisation.

The person works less than 40 per month for the other.

The person is financially/economically independent.

Does not get provided with the necessary tools or equipment to perform his/her duty.
See the checklist to determine whether an individual is an “employee” or an “independent
contractor” in Nel & Kirsten (2020:388).
DIFFERENT TYPES OF CONTRACTS
There are only two types of contracts of employment, i.e., a permanent and a fixed term (temporary)
contract.
Permanent contracts – Stipulate date of commencement but not of termination.
Temporary or fixed term contracts – Work is of a temporary nature, i.e., start on a specified date and
end at a specified date or for a specific event – therefore no notice period.
It is important to make mention of labour brokers. Nel & Kirsten (2020:182) write that, “the concept
labour broking (“temporary employment services” or TES, according to the LRA and BCEA) was
created to allow organisations to use labour supplied by outside agencies (labour brokers/TES)
without becoming the employers of the labour so supplied.”
BACKGROUND TO THE DEVELOPMENT OF THE LABOUR RELATIONS ACT (NO. 66 OF
1995)
After South Africa’s first free and fair elections, the newly elected Cabinet approved the appointment
of a task team in July 1994 to investigate the laws regulating labour relations and overhaul the laws
regulating labour relations. This team identified the following problems:

The multiplicity of laws – too many different laws were governing labour relations in SA

The need for an overall framework of labour law – no orderly distinction between the
regulation of collective labour relations and the individual labour relationship

Conflict of policy – different laws conflicted with each other

Post hoc rulemaking – the broad discretion of the Industrial Court to determine unfair labour
practice

Statutory dispute resolution – ineffective, lengthy, complex, and full of technicalities

Haphazard collective bargaining – no orderly relationship between bargaining at different
levels

No statutory support for employee participation in decision making – like workplace forums

Cost of unfair dismissal law – adjudication of unfair dismissals was lengthy and expensive

Breaches of public international law – statutes did not comply with international law
obligations – the requirements of the ILO

Compliance with the country’s interim Constitution (April 1994) – the interim Constitution
changed the constitutional basis of the South African legal system completely and new
legislation was therefore inevitable
The above was identified as part of the process of drafting the Labour Relations Act (no. 66 of 1995).
THE LRA COVERS THE FOLLOWING ASPECTS:

Rights of employees to form and join a union

Rights of employers to form and join an employers' organisation

Rights of trade unions in the workplace

Collective bargaining

Bargaining Councils and Statutory Councils

The establishment of workplace forums that allow employees to participate in management
decisions at work

What are fair and unfair labour practices

Procedures that must be followed for dismissals to be fair

Dispute resolution structures and procedures, including the Commission for Conciliation,
Mediation and Arbitration (CCMA)

Industrial action
Collective Agreements
What it is This is a simple
agreement between
Bargaining Councils
Statutory Councils
Bargaining council
agreements cover a wide
This is a weaker version
of a bargaining council,
employers (e.g.,
range of issues (e.g., wages, as it cannot be extended
Chamber of Mines) and a benefits, and grievance
to parties outside of the
union or unions (e.g., the procedures) and extend to all council without the
National Union of
employers and employees
Minister of Labour’s
Mineworkers). The
within the council’s scope of approval.
agreement only affects representivity, as long as
these two parties.
certain requirements are
met.
Conditions Both parties must agree To establish a bargaining
to a collective
council there must be
agreement.
enough representation in
both the unions and the
employers’ organisations.
Representation must be
acceptable to NEDLAC (the
National Economic
Development and Labour
Council).
Rights
To establish a statutory
council, there must be
30% representation on
both sides. This means
that at least 30% of the
employers in the sector
must employ at least 30%
of the workers.
Bargaining council agents
Unions that are members
monitor and enforce any
of a statutory council will
collective agreements and
enjoy organisational
have the power to issue
rights of access,
compliance orders, to publish meetings, ballots and
the contents of collective
stop-order facilities, even
agreements and to conduct in a workplace that has
investigations into
no union members.
complaints.
REFERRING DISPUTES
Any party may refer a dispute in writing within 30 days of the date of the dismissal to a council
(includes a bargaining council, and a statutory council formed in terms of Chapter 3 of the Labour
Relations Act) if the parties fall within the registered scope of that council. If no council has
jurisdiction, the dispute may be referred to the Commission for Conciliation and Mediation (CCMA).
The party who refers the dispute must satisfy the council or the CCMA that a copy of the referral has
been served on all the other parties involved. The council or the CCMA will then try to resolve the
dispute through conciliation.
RIGHTS OF THE EMPLOYERS AND THE EMPLOYEES
It is important to draw your attention to the following:
Freedom of association
Both the employee and the employer have the right to freedom of association, which means they are
free to associate with any group, to form a group, and to find a trade union/employers’ organisation.
Employee’s right to freedom of association:

Expanded by the Labour Relations Act (no. 66 of 1995)

May take part in legal trade union activities

May take part in trade union elections

May make him/herself available for election and occupy the position of official/office bearer –
can stand for a shop steward.

(If the employees are not allowed to join a trade union, collective bargaining would be
impossible – at the heart of the LRA).
Protection:
An employee or job seeker must not be expected to:

Give an undertaking of not becoming a trade union member

Terminate his/her trade union membership
An employee or job seeker must not be disadvantaged as a result of his/her trade union membership.
Nobody is allowed to favour, or promise to favour, an employee or job seeker if he/she undertakes
not to practise the right to freedom of association.
Employers’ right to freedom of association:
Employers have the right to sound, join or take part in the legal activities of an employer organisation.
This right is protected by a general provision that nobody is allowed to discriminate against an
employer for exercising any right granted by the act, including practising the right of freedom of
association.
ORGANISATIONAL RIGHTS
“Trade unions may be awarded certain organisational rights depending on their level of
representation in the workplace” (Nel & Kirsten, 2020:194). These could be summarised as follows
(see Table 3):

Majority membership (50% + 1 member): They are entitled to specific organisational rights
(also includes already acknowledged trade unions through collective agreements)

Sufficiently representative: Significant membership, but not majority (no stipulation)
Table 3 – Organisational rights of trade unions
Sufficiently Representative
Majority Representative
Sufficiently representative trade
union 1 which is part of a bargaining council
has the right to:
Representative trade union1 with majority members in
the workplace has the rights in and, in addition to, the
right to:

Enter the employer’s premises for
the purposes of recruitment and
communication2

Hold meetings with employees
outside working hours

Conduct a ballot

Deduct trade union subscription

Leave for its office bearers

Elect shop stewards

Help in grievance procedures and disciplinary
hearings

Monitor the employer’s compliance with the
law

Take paid time off for trade union activities
and training (reasonable)

Obtain access to information2

Establish thresholds of representativeness
1 Trade unions must be registered.
2 Domestic workers – trade unions must obtain permission from the employer to enter the employer’s house and the right to the disclosure of information
does not apply in the domestic sector.
COLLECTIVE BARGAINING STRUCTURES
Collective bargaining usually refers to those interactions between management and trade unions
where representatives of labour and of the employer negotiate collective agreements, which can
include (Nel & Kirsten, 2020:278):

Procedures relating to discipline, grievances, and redundancies

Substantive matters such as salaries, working hours, working conditions, etc.

The way this agreement must be administered in the future
Main aim of collective bargaining is to reach collective agreements. It is important to note that the
LRA supports collective bargaining but does not set it as a legal requirement.
BARGAINING LEVELS
Collective bargaining between the trade union and the employer can take place on the following
levels:

Centralised - this occurs when a union or unions bargain with the representatives of
employers (employers’ association) in a particular industry or sector.

Decentralised - this occurs when a union or unions bargain only with management at a
particular workplace.
The choice of bargaining level depends on where a particular party believes it can exert most power.
For example, in the early 1980s, most unions who are now part of COSATU chose to bargain at plant
level. The main reason was that most trade unions were not sufficiently representative of employees
in the various industries. Presently, trade unions are strongly in favour of centralised bargaining
because they have extended their organisations across industries.
The LRA provides for two institutions which can promote centralised collective bargaining:
Bargaining Councils:
“Bargaining councils are voluntary institutions established between one or more registered trade
union(s) and one or more employers’ organisations for a sector, or area in order to facilitate collective
bargaining” (Nel & Kirsten, 2020:201).
Their objectives are to:

Reach collective agreements by means of centralised collective bargaining – binding on all
employers and employees in the specific sector/area where the council operates

Settle disputes which may arise in this sector/area (sector – an industry or a service; area –
geographic area or any number of areas)
Statutory Councils:
“Statutory councils fulfil only some of the functions performed by the bargaining councils and may
only be established in sectors and areas where no bargaining council has been established” (Nel &
Kirsten, 2020:206).
The main difference between bargaining and statutory councils are (Nel & Kirsten, 2020:201-208):
Statutory councils:

May (like bargaining councils) perform dispute resolution functions, promote, and establish
education and training schemes, pension, medical aid, and unemployment schemes, etc.

Do not usually conclude collective agreements

Can be formed by trade unions that represent 30% of the employees
Bargaining councils:

Can perform all the above functions

Can be formed by any registered TU

Conclude collective agreements
Bargaining councils in the public service:
The LRA makes provision for the establishment of a bargaining council for the public service as a
whole – Public Service Coordinating Bargaining Council (PSCBC) (Nel & Kirsten, 2020:206). A
bargaining council can be established for a particular sector within the public service – as indicated by
the Public Service Coordinating Bargaining Council or the President.
COLLECTIVE AGREEMENTS
“A collective agreement is defined as a written agreement concerning terms and conditions of
employment or any other matter of mutual interest concluded by one or more registered trade
unions on the one hand, and one or more employers or employers’ associations on the other” (Nel &
Kirsten, 2020:209). The main aim of collective bargaining is to reach collective agreements. An
essential and important feature or requirement is that a collective agreement must be put in writing.
It is important to note that the collective agreement enjoys priority over the individual contract of
employment. The following are important aspects concerning collective agreements:

Only collective agreements reached with registered trade unions will be protected by the LRA.

Collective agreements reached at workplace or shop-floor level have the same recognition as
those entered into at the level of industry (e.g., bargaining, and statutory councils).

Collective agreements must deal with rules and conditions of service and could be extended if
required.

Collective agreements are binding to the parties to the agreement (employer and trade
union).

Collective agreements could apply to non-trade union employees if the following
requirements are met:
o
The employees must be identified in the agreement.
o
The agreement must specifically be binding on those employees.
o
The trade union must represent the majority of the workers appointed by the
employer in the workplace.
TYPES OF AGREEMENTS
The different types of collective agreements are discussed by Nel & Kirsten (2020:210–214) and could
be summarised as follows:
Substantive agreements:

Usually deal with the financial implications of the employment relationship

It regulates the rights and obligations of the parties to the employment relationship –
payment for services rendered
Procedural recognition agreements:
Covers all factors concerning ways in which the organisation/management and trade union agree to
deal with issues affecting the employment relationship, such as:

The bargaining unit

Scope of application

Disciplinary and grievance procedures

Retrenchment procedures

Dispute resolution procedures
Transformation agreement:

Unique and distinctive to South Africa

Deals with challenges and changes the parties are faced with in South Africa’s unique
circumstances – e.g. Affirmative Action
Union security arrangements:
These are usually the products of collective bargaining and result in the form of specific collective
arrangements, such as agency shop agreements and closed-shop agreements.
Agency shop agreements
A majority registered trade union or trade unions which jointly form the majority in a workplace or
sector, can institute an agency shop by reaching an agreement with an employer or employers’
organisation. Non-members of a trade union (known as ‘free-riders’) pay an amount (not more than
the trade union subscription fee) into a fund kept and administered by the trade union. This money
can be used to meet the costs incurred in the promotion of the socio-economic interests of the
workers – not used to contribute to political parties or political candidates (e.g., this money is not
allowed to be used for political rallies).
The aims of the agency shop agreements are to:

Ensure that non-members contribute to the negotiations which the trade union enters on
their behalf

Ensure stable and orderly collective bargaining
Closed shop agreements
All employees covered by the agreement must become a member of the majority (registered) trade
union or face dismissal. However, the LRA (Section 26(7)) states in this regard that:

Employees, at the time when a closed shop agreement takes effect, cannot be dismissed for
refusing to join a trade union.

Employees may not be dismissed for refusing to join a trade union that is party to the closed
shop agreement on the grounds of conscientious objection.

Only post-entry closed shops are allowed.
Procedural steps: A ballot has to be held of the employees who will be covered by the agreement and
2/3 of the employees must vote in favour of the agreement.
Activity:
Divide the class into small groups and discuss the following:
1. Do you think closed shop agreements infringe on the employee’s right to freedom of
association? Motivate your answer.
2. What do you suggest trade unions could do to prevent ‘free riders’?
BASIC CONDITIONS OF EMPLOYMENT ACT (NO. 75 OF 1997
THE INTEGRATION OF LABOUR LEGISLATION AS PART OF THE EMPLOYMENT
RELATIONS SYSTEM IN SOUTH AFRICA
The most important acts which govern specific issues in the employment relationship are:

Collective bargaining – The Labour Relations Act (no. 66 of 1995)

Employment conditions and wages – The Basic Conditions of Employment Act (no. 75 of
1997)

Safety of employees – The Occupational Health and Safety Act (no. 85 of 1993 and the Mine
Health and Safety Act (no. 29 of 1996) for employees in the mining sector

Protection of employees – The Compensation for Occupational Injuries and Diseases Act (no.
130 of 1993) and the Unemployment Insurance Act (no. 63 of 2001)

Training – The Skills Development Act (97 of 1998) and the Skills Development Levies Act (no.
9 of 1999)

Equity in the workplace – The Employment Equity Act (no. 55 of 1998)
THE BASIC CONDITIONS OF EMPLOYMENT ACT (NO. 75 OF 1997)
The Basic Conditions of Employment Act (no. 75 of 1997) prescribes certain minimum conditions of
employment, which employers have to adhere to. These conditions ensure that employees are
treated fairly in the workplace.
PURPOSE
The main aim of this act is to promote and advance economic development and social justice through
the institution and enforcement of basic conditions of employment.
This is applicable to all employees, except for members of:

The National Defence Force

The National Intelligence Agency

The South African Secret Service

Unpaid charity workers
More favourable conditions can be negotiated by the employee/trade union/bargaining council
(where applicable).
The basic conditions of employment established by the act form part of every contract of
employment unless they have been replaced, varied or excluded in accordance the act or unless the
employee has contracted to more favourable terms of employment.
WORKING HOURS
Section 7 of the BCEA, the working hours of employees must be arranged so as not to endanger their
health and safety and with due regard to their family responsibility.
It is important to note that the following categories of employees are excluded from the limitations
on working hours, overtime and work on Sundays and public holidays:

Senior management

Sales staff who travel.

Employees who work less than 24 hours a month

Those doing emergency work are excluded from certain provisions.
In situations where the organisation needs to provide a 24-hour service (such as security companies,
hospitals, homes for the aged, etc.), the limitation of 45 hours per week and overtime provide serious
problems. The act, however, makes provision for these situations. It stipulates that these hours may
be averaged over a period of up to four months, but it needs to be covered by a collective agreement
between the parties involved.
ORDINARY WORKING HOURS:

Maximum hours per week = 45 hours

5 days per week = maximum 9 hours per day

6 days per week = maximum 8 hours per day
OVERTIME:

Only by arrangement, but the employee cannot be unreasonable

1½ normal wage or, by arrangement, paid leave equal to the value of the overtime

Maximum = 12 hours on any day (collective agreement can make provision to increase the 10
hours to 15 hours per week – only allowed for 2 months in a 12-month period)
EXTENDED ORDINARY DAILY WORKING HOURS:

By agreement, 12 hours per day without overtime (not more than 5 days per week)

Normally average over 4 months – not exceeding 45 hours per week and 5 hours overtime
per week
MEAL BREAKS:

60 minutes after 5 hours worked (can be reduced by agreement)

If the employee needs to be available during his/her lunch break, she/he needs to be paid for
that period
DAILY AND WEEKLY REST PERIOD:

Daily – 12 hours between ending and starting of work

Weekly – 36 hours per week (consecutively)
NIGHT WORK:
Provision is made for two kinds of night work.

Work done between 18:00 and 06:00:
Employees must be reimbursed by being paid an allowance or by having their working hours
reduced. Transport must be available for them.

‘Regular’ work done between 23:00 and 06:00:
The employer must also inform such employees about the health and safety hazards of night work
and provide them with a free medical examination on request. ‘Regularly’ means at least five times a
week or 50 times a year.
WORK ON SUNDAYS AND PUBLIC HOLIDAYS:
The act distinguishes between the following two categories of employees working on a Sunday:

Employees who do not work normally on a Sunday.
They should be paid double their usual rate but (notwithstanding the hours worked) may not be paid
less than one day’s wages or may be paid (by agreement) by granting paid leave in proportion.
This time is considered overtime and is subject to the overtime maximum of 10 hours per week.

Employees who work normally on a Sunday
They should be paid only at 1½ times their usual rate but (notwithstanding the hours worked) may
not be paid less than one day’s wages or may be paid (by agreement) by granting paid leave in
proportion,
This time should be included in and subject to the maximum of 45 hours per week.
It is important to note that where the greater part of a shift falls on a Sunday, the employee is paid at
Sunday rates for the entire shift.
All employees must receive their normal salaries for public holidays which fall on a working day. An
employee cannot be expected to work on a public holiday, except by agreement. Work on public
holidays must be paid at double the usual rate, or the normal daily rate plus the total for actual time
worked, whichever is the greater.
EMERGENCY WORK:
The restrictions on ordinary and overtime working hours and the requirements in respect of meal
breaks and rest periods do not prevent emergency work from being done. According to section 6 (2)
of the act refers to work is required to be done without delay owing to the circumstances for which
the employer could not reasonably have been expected to make provision and which cannot be
performed by employees during their ordinary work hours.
LEAVE
ANNUAL LEAVE:

Three weeks fully paid after every 12 months continuous employment

Cannot pay out leave

Leave owing to the employee must be paid out on termination of employment (with notice)
SICK LEAVE:

Six weeks paid leave for every 3 years of continued employment

During first 6 months – entitled to 1 day paid sick leave for every 26 days worked

Normally – medical certificate after 2 consecutive days or if there is a pattern (organisation’s
policy can make provision otherwise)
MATERNITY LEAVE:

Four continuous months unpaid leave (4 weeks before and 6 weeks after)

Night shift/dangerous work – provide alternative while employee is pregnant or breastfeeding
and 6 months after
RIGHTS OF A WORKING BREASTFEEDING MOM:
According to the Code of Good Practice on the protection of employees during pregnancy and after
the birth of a child, arrangements should be made for you to have 2 breaks of 30 minutes per day for
breastfeeding or expressing milk. This should be arranged for every working day for the first 6 months
of your child's life.
A clean, hygienic, private space should be provided for the mother to express milk or to breastfeed –
the toilet is not appropriate.
PATERNITY LEAVE
Fathers are entitled to 10 consecutive days unpaid paternity leave. You will have to claim from the
Unemployment Insurance Fund (UIF) for those unpaid days.
This is applicable to fathers who adopt a child under 2 years old. This leave can be taken from the
date that the adoption order is given or when the child is placed in the care of the adoptive parents.
The employer should be notified in writing when the leave will be taken unless you’re unable to do so.
Family responsibility leave (only applicable to employees who work 4+ days per week):

Three days paid leave per year

Employer can request reasonable proof (e.g., death certificate)
Domestic workers who have been employed by an employer for longer than four months and who
work at least four days a week for that employer are entitled to five days family responsibility leave
during an annual leave cycle.
APPLICATION:

Does not apply where the employer grants more leave as stipulated by the act

Does not apply to workers who work less than 24 hrs p/m
REMUNERATION, DEDUCTIONS, AND NOTICE OF TERMINATION OF SERVICE
Payment of salary and deductions:

Must be paid according to agreement (weekly, fortnightly, monthly)
DEDUCTIONS:

Only allowed by law, collective agreement or arbitration award
Loss/damage in the course of employment:

By agreement in writing

After a fair hearing to deduce that the employee was at fault
TERMINATION OF SERVICE:
NOTICE PERIOD:

1st 4 weeks of employment – 1 weeks’ notice

1st year of employment – 2 weeks’ notice

More than 1 year – 30 days
EXCEPTION:

Employees who work less than 24 hrs a month.

Notice must be in writing and explained in his/her language.

Retrenched employees are entitled to 1 week’s severance pay for every completed year
worked.

An employee is entitled to a certificate of service on termination.
Employee can challenge fairness/lawfulness of the dismissal in terms of LRA.
EXCLUSIONS:

Does not apply to workers who work less than 24 hrs p/m
ADMINISTRATION OBLIGATIONS
Prohibition of the employment of children and of forced labour:
An employer cannot employ somebody under 15 years of age and the employment of children under
18 years is restricted.
The Minister of Labour is empowered to issue regulations prohibiting or setting out conditions for the
employment of children over 15 years of age.
AMENDMENT OF BASIC CONDITIONS OF SERVICE
Basic conditions of employment can be modified by:

Collective agreements (plant level or bargaining councils)

Individual agreements

The Minister of Labour
MONITORING, ENFORCEMENT, AND LEGAL PROCEEDINGS
The Department of Labour employs inspectors, who have the following powers:
They can enter any workplace to carry out an inspection without notice or a search warrant.
They can only enter a dwelling (private residence) with the owner’s permission or in terms of an
authorization by the Labour Court.
They can question people, and inspect, copy, and remove records, documents, and other related
items.
THE SKILLS DEVELOPMENT ACT (NO. 97 OF 1998) AND THE SKILLS
DEVELOPMENT LEVIES ACT (NO. 9 OF 1999)
THE SKILLS DEVELOPMENT ACT (NO. 97 OF 1998)
“The South African Qualifications Authority Act No. 58 of 1995 was passed as a forerunner to improve
skills, training, and development... This Act provides for the development and implementation of the
National Qualifications Framework (NQF) and the establishment of the South African Qualifications
Authority (SAQA)” (Nel & Kirsten, 2020).
NATIONAL QUALIFICATIONS FRAMEWORK (NQF)
The objectives are to:

Create an integrated national framework for learning achievements.

Facilitate access to, and mobility and progression within, education, training and career paths.

Enhance the quality of education and training in South Africa.

Accelerate the redress of past unfair discrimination in education, training and employment
opportunities.

Contribute to the personal development of each learner and the economic development of
the nation.
THE PURPOSE OF THE SKILLS DEVELOPMENT ACT (SDA)
This act is replacing the Manpower Training Act and the Guidance and Placement Act. Its purpose
(according to Section 2) is to:

Develop the skills of South Africa’s workforce.

Increase the levels of investment in education and training.

Use the workplace as an active learning environment and to provide employees with the
opportunities to acquire new skills.

Provide opportunities for new entrants to the labour market to gain work experience.

Employ persons who find it difficult to be employed.

Encourage workers to participate in leadership and other training programmes.

Improve the employment prospects of persons previously disadvantaged by unfair
discrimination and to redress those disadvantages through training and education.

Ensure the quality of education and training in and for the workplace.

Assist work-seekers to find work, retrenched workers to re-enter the labour market, and
employers to find qualified employees.
THE PURPOSE OF THE SDA SHOULD BE ACHIEVED AS FOLLOWS:
By establishing an institutional and financial framework consisting of:

The National Skills Authority

The National Skills Fund

A skills development levy-grant scheme (stipulated by the SDLA)

SETAs

Labour centres

A Skills Development Planning Unit
By encouraging partnerships between the public and private sectors to provide education and training
in and for the workplace
By co-operating with SAQA
TWO LEARNING PROGRAMMES ARE IDENTIFIED IN THE ACT
The following two learning programmes are identified by the SDA (Nel & Kirsten, 2020):
LEARNERSHIPS:
This programme incorporates the traditional apprenticeships.
It includes structured learning and work experience, which leads to nationally registered,
occupationally linked qualifications in areas of skill, need or opportunity in the labour market.
It assists:

Young unemployed people to enter the labour market

Existing employees to improve their skills levels
SKILLS PROGRAMMES:
These are not learnerships, but they should meet quality and relevance criteria – to qualify for grant
payments from SETAs or the National Skills Fund.
THE SKILLS DEVELOPMENT LEVIES ACT (NO. 9 OF 1999)
The Skills Development Levies Act (no. 9 of 1999) makes provision for the payment of a skills levy by
the employers, which is used for the development and improvement of the skills of their employees.
This contributes to employees thriving in the workplace, as well as in their careers. Happy employees
and productive employees will contribute to the success of their organisations.
PURPOSE:
To provide for the imposition (obligation) of the skills development levy.
LEVY PAYABLE
All employers have to pay a skills development levy of 1% of the employees’ total remuneration.
SARS has been appointed as the national collection agent.
EXEMPTIONS FROM THE ACT
The following are exempt:

Any public sector employer in the national or provincial government

Any employer whose annual remuneration to all his/her employees does not exceed R250
000, and who need not apply for registration in terms of the 4th schedule of the Income Tax
Act

Any religious or charitable institution which is exempt from income tax

Any national or provincial public body which received 80% of its funding or more from
parliament
REGISTRATION FOR PAYMENT OF LEVY
All employers:

Must register with the Commissioner of SARS and indicate to which SETA they belong

Must register with the relevant SETA
The levies, interest and penalties collected by SARS (after the deductions of refunds) must be paid
into the National Revenue Fund:

The National Skills Fund receives 20% of the levy.

The organisations can claim up to 80% back of the levy (minus the establishment and running
costs of the SETA).
Contraventions of the act:
Offenders can be fined if found guilty or serve a prison sentence not exceeding one year.
LABOUR INSPECTOR
The act provides for the appointment of a labour inspector, who is responsible for:

Collecting levies on behalf of SETAs

Enforcing compliance with the act
CONTRAVENTIONS
Offenders can be fined if found guilty or serve a prison sentence not exceeding one year.
COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT
(NO. 130 OF 1993)
THE COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT (NO. 130
OF 1993)
Most permanent employees spend more than 40 hours per week at work. As such it is quite possible
that employees can get injured at work or may contract a disease at work. It is therefore important
that all employers understand the logistical processes, how the act operates, how the registration
system works, etc.
PURPOSE OF THE ACT
It regulates the payment of compensation to persons injured or who contract a disease while
working, or to their dependents if they die (previously known as the Workmen’s Compensation Act).
SCOPE
All persons employing one or more employees in connection with their business or farming activities
are required to register and to pay annual assessments to the Compensation Fund (employees are not
contributing).
All employees are covered, that is including:

Casuals

Contract workers, apprentices, learnership workers

Employees from a labour broker

A deceased worker – his dependents

A disabled worker – a curator will be appointed
Employees excluded:

A person, including a person in the employ of the State, performing military service, or
undergoing training referred to in the Defence Act, 44 of 1957, and who is not a member of
the Permanent Force of the SADF (e.g., commando’s)

A member of the Permanent Force of the SADF or of the SAPF while on duty

A person who contracts for the carrying out of work and himself engages other persons to
perform such work

A domestic employee employed as such in a private household
FUNCTIONING OF THE ACT
The act makes it possible for a sick or injured employee to claim damages from the employer, if the
sickness or injury arose from and was in the course of the employee’s work – i.e., employees are
compensated whether their injuries or illness were caused through their own fault or due to their
employers’ negligence or that of any other person.
The employee may not institute a claim of damages against the employer or any other person for the
damages suffered.
Benefits are paid to three categories of claimants:

Employees who suffer temporary disability

Employees who are permanently disabled

The dependants of employees who have died as a result of their injuries or illness
Employers must pay employees who are temporarily disabled their compensation for the first three
months of absence from work.
Employers must report all accidents within 7 days and all occupational diseases within 14 days.
If the disability is less than 3 days or if the accident was as a result of deliberate misconduct on the
part of the employee, no compensation will be paid, unless:

The accident results in serious disability

The employee dies as a result and leaves a dependent that is completely financially
dependent on him/her
COMPENSATION FUND
The act provides for a Compensation Fund, which is administered by the Compensation
Commissioner.
The income of the fund – compulsory annual contributions from employers.
Workers have no right to claim compensation from their employer – employer not responsible for
compensation, unless being exempted from the provisions of the act.
COMPENSATION COMMISSIONER
Receives notices of accidents, industrial diseases and claims.
Investigates injuries and industrial diseases.
Decides on claims.
He/she has assessors to assist him/her.
COMPENSATION BOARD
Advise the Minister on:

Any policy matters relating to the application of this act

The nature and scope of benefits payable to employees or their dependents or the
adjustment of existing pensions

The appointment of assessors
THE OCCUPATIONAL HEALTH AND SAFETY ACT (NO. 85 OF 1993) [OHSA]
PURPOSE
To provide for:

Ensure that no party can agree that work will be conducted in unsafe conditions.

The health and safety of people at work and those in connection with the use of plant and
machinery

The protection of other people from hazards to health and safety caused by the activities of
people at work

Focuses primarily on protecting employees in the workplace from accidents, injuries, and
exposure to harmful substances.

The establishment of an Advisory Council
SCOPE
Wide range:

Covers the civil service, the agricultural and domestic sectors

Covers the users of machinery

Covers injuries to people who are not employees, etc.
Exceptions:

The mining industry, which is regulated by the Minerals Act and the Mine Health and Safety
Act or any load line ship, fishing boat, sealing boat or whaling boat as defined in the Merchant
Shipping Act or to a floating crane.

OHSA becomes operational if something happens that is not covered by these acts
GENERAL DUTIES OF EMPLOYERS TO THEIR EMPLOYEES:

Providing safe systems of work, plant, and machinery and does not pose any health risks.

Eliminating possible health and safety hazards risk

Arranging for the safe production, processing, use, handling, storage or transport of articles
or substances

Providing information, instructions, training, and supervision required to ensure the
necessary safety

Not permitting an employee to perform any work unless the precautionary measures have
been taken

Ensuring that the requirements of the act are adhered to by all employees

Informing all employees of their duty under the act
GENERAL DUTIES OF EMPLOYEES:

To take reasonable care for their own health and safety and for that of others

To cooperate with the employer or other designated person as far as health and safety issues
are concerned

To obey health and safety rules and procedures laid down by the employer or someone
authorised by the employer

To report any unsafe or unhealthy situation, or any incident which may affect their health, or
the safety of the employer, or the health and safety representative

Not to interfere with or abuse anything provided to protect the health or safety of all
concerned
ADVISORY COUNCIL
Function:

To advise the Minister of Labour on any policy matter arising from or connected with the
application of the provisions of the act

To conduct research
HEALTH AND SAFETY REPRESENTATIVES
Appointment:

Every workplace with more than 20 workers

In shops and offices – 1 representative for every 100 employees

In other workplaces – 1 representative for every 50 employees

An appointment can only be made after consultation with the employees – not a unilateral
decision
Duties:

Check the effectiveness of health and safety measures.

Identify potential dangers in the workplace.

Investigate the causes of incidents in the workplace (in cooperation with the employer).

Investigate complaints by any employee concerning that employee’s health or safety at work.

Make suggestions to the employer.

Inspect the workplace for health and safety issues (the employer needs to be notified of such
an inspection and needs to be present during such an inspection).

Take part in consultations with inspectors at the workplace and accompany inspectors during
their inspections of the workplace.

Receive information from inspectors on health and safety issues.

Attend meetings of the health and safety committees.
HEALTH AND SAFETY COMMITTEES
There should be two or more health and safety representatives.
They must make recommendations to the employer regarding the health and safety of the people in
the workplace.
INSPECTORS
Designated by the Minister of Labour.
Duties:

Carry out inspections/investigations.

Obtain relevant information by questioning workers and make copies of documentation.
Penalties
No one may tamper with, discourage, deceive or unduly influence somebody who is to give evidence.
No one may prejudice or precipitate proceedings, tamper with or misuse safety equipment or wilfully
or recklessly do anything which endangers health and safety.
Both abovementioned: Fines up to R50 000, or 1-year’s imprisonment, or both.
Anyone commits or omits to do an act, which leads to someone getting injured and possible death
(guilty of culpable homicide) – whether the person dies or not.
A fine up to R100 000, or 2-years’ imprisonment, or both.
VICTIMISATION
No employer can victimise an employee because he/she has reported, give evidence, etc. against an
employer on health and safety issues.
No employer shall dismiss an employee or reduce the rate of their remuneration or alter any terms
and condition of the employees employment to terms or conditions less favourable to them or alter
his position relative to other employees employed by that employer to their disadvantage by reason
of the fact or because he suspects or believes whether or not the suspicion pr belief is justified or
correct that the employee has given information to the minister or any other person charged with the
administration of a provision of this Act which in terms of this Act he is required to give.
THE UNEMPLOYMENT INSURANCE ACT (NO. 63 OF 2001) AND THE
EMPLOYMENT EQUITY ACT (NO. 55 OF 199..C8)
THE UNEMPLOYMENT INSURANCE ACT (NO. 63 OF 2001)
The Unemployment Insurance Act (no. 63 of 2001) makes provision for the Unemployment Insurance
Fund (UIF), which gives short-term relief to employees when they become unemployed or unable to
work because of maternity, adoption or parental and paternal leave or illness. It is important to note
that this act also makes provision for relief to the dependents of a deceased contributor to the UIF.
2.1. PURPOSE
The act makes provision for the insurance of employees who are contributors to the Unemployment
Insurance Fund against the risk of loss of earnings arising out of unemployment due to:

The termination of their employment – more than 14 days

Illness – more than 14 days

Maternity

Payments to female contributors who adopt children

It also makes provision for payments to the dependents of deceased contributors
SCOPE
Most employees are covered by the act (including domestic and seasonal workers), except for:

Employees employed for less than 24 hours a month with a particular employer, and their
employers

Employees who receive remuneration under a learnership agreement registered in terms of
the SDA 97 of 1998, and their employers

Employers and employees in the national and provincial spheres of government

Persons who enter the Republic for the purpose of carrying out a contract of service,
apprenticeship or learnership within the Republic, if upon the termination thereof, the
employer is required by law or by the contract of service, apprenticeship or learnership, as
the case may be, or by any other agreement or undertaking, to repatriate that person, or that
person is so required to leave the Republic, and his/her employers.
The following persons may be contributors to the fund, but are not entitled to benefits:

People receiving a pension/disability grant from the state

People already benefiting in terms of the Compensation for Occupational Diseases Act

Contributors who have refused to accept appropriate available work

People who have voluntarily resigned from their work – except in the case of a constructive
dismissal, which has been referred to the CCMA
The UIF is administered by the Department of Labour.
The employee pays 1% of his/her salary and the employer pays 1% towards the fund.
DUTIES OF EMPLOYERS
In terms of section 56 of the UIA, an employer has the following duties:




To provide the street address of his or her business and its branches
To provide the names, identification numbers and monthly remuneration of each his or her
employees, stating the address at which the employee is employed.
To inform the commissioner before the seventh day of each month of any change during the
previous month with regards to the information previously furnished.
To pay UIF the required amount from the employer and every contributor in his or her
employ. Note that the employer must pay both the employers and the employees
contribution at monthly intervals to the UIF by the seventh day of each month.
BENEFITS AND ALLOWANCES


A contributor accrues one credit for every 5 days completed [previous was 6 days] of
employment subject to a maximum accrual of 365 days [previously 238] credits in the 4 year
period immediately preceding the day after the date of ending the period of employment.
Unemployment benefits must be paid to the unemployed contributor regardless of whether
or not the contributor has received benefits within that four-year cycle if the contributors has
credit remaining.

Employees who lost part of their income due to reduced working time are, since 2017
entitled to benefits under the Act if the contributing employees total income falls below the
benefit level that he or she would receive if she or he had become wholly unemployed and
provided the contributing employee has enough credits
ILLNESS BENEFITS




If an employee is unable to work, the prescribed requirements in respect of the illness must
be complied with.
The period of the illness should be no less then 14 days.
All applications for illness benefits must be applied for within the period of six months of the
start of the illness.
Benefits must be calculated in terms of the difference between sick leave in terms of any
collective agreement or service contract, and the maximum benefit in terms of this act.
MATERNITY BENEFITS




In terms of section 24, expectant mothers are entitled to benefits during the period of
pregnancy and delivery as prescribed by the UIF.
Payment is made at a rate of 66 per cent of the earnings of the beneficiary at the time of
application for benefits subject to the maximum income threshold of R212 539 per annum
[R17 712 per month]. Application can be made from 8 weeks before the childbirth to any time
before or after childbirth, provided that the application is made within the a period 12
months after the date of the child’s birth.
A contributor who has miscarried during the third trimester or who bears a still born child, is
entitled to a full maternity benefit for at least 13 weeks prior to the date of the application for
benefits.
These benefits do not apply to a contributor who voluntarily terminated their pregnancy.
ADOPTION BENEFITS
In terms of section 27, if a contributor adopts a child in terms of the Child Care Act 74 of 1983, he or
she is entitled to benefits for a period during which he or she was not working and was caring for the
child . The age of adopted child must be less than two years and the application for the benefits must
be made in accordance with the prescribed requirements
DEPENDANTS BENEFITS


In section 30, a surviving spouse or life partner has the right to dependants benefits if
application is made within 18 months [ previously was 6 months] of the death of the
contributor.
If there is no surviving spouse or life partner or these individuals have not claimed
dependants benefits within 18 months of the contributors death, any dependent child is
entitled to these benefits. A nominated beneficiary of a deceased contributor can claim
dependants benefits if there is no surviving spouse, life partner or dependent children of the
deceased contributor.
UNEMPLOYMENT BENEFITS
These are described in section 15 to 18 of the Act.
They apply to any period of unemployment lasting more than 14 days. If the reason for the
unemployment is the termination of a contract, dismissal or insolvency and the contributor is capable
of §
THE EMPLOYMENT EQUITY ACT (NO. 55 OF 1998)
PURPOSE
To bring fairness in the workplace, mainly through:

The ban on unfair discrimination, which is applicable to all employers

Measures for affirmative action, which are applicable only to designated employers
MOST IMPORTANT DETERMINANTS FOR IMPLEMENTING THE AIMS OF THE ACT
All employers are expected to take steps to end unfair discrimination in their employment policies
and practices.
Unfair discrimination against employees or prospective employees on the basis of race, gender,
pregnancy, marital status, family responsibilities, ethnic or social origins, colour, sexual orientation,
age, disability, HIV status, religion, conscience, belief, political opinion, culture, language and birth is
forbidden.
Medical and psychometric testing of employees is forbidden unless it is justified.
Designated employers must prepare and implement employment equity plans after having carried
out a workforce analysis and consulted Trade Unions, and employees.
Employment equity plans must contain specific affirmative action measures in order to promote the
fair representation of people from designated groups in all occupational categories and levels in the
work force.
Designated employers must take steps to progressively reduce inequitable income differentials.
Designated employers must report to the Department of Labour on the ways in which they are
implementing employment equity.
SCOPE
APPLICABLE TO ALL EMPLOYEES AND EMPLOYERS – EXCEPT MEMBERS OF THE:

National Defence Force

National Intelligence Agency

South African Secret Service

Ban on unfair discrimination – all employees and employers
AFFIRMATIVE ACTION – DESIGNATED EMPLOYERS AND DESIGNATED EMPLOYEES:
A DESIGNATED EMPLOYER IS:

An employer with 50 or more employees

An employer with fewer than 50 employees, but with a total annual turnover which is equal
to or more than the relevant annual turnover for a small business in terms of Schedule 4 of
the act

A municipality
A GOVERNMENT BODY, EXCLUDING:

o
Local government
o
The National Defence Force
o
The National Intelligence Agency
o
The South African Secret Service
An employer who becomes a designated employer in terms of a collective agreement, to the
extent that the collective agreement provides for these designated groups
DESIGNATED GROUPS ARE:

Black people (a general term which includes black, Coloureds and Indian people)

Women

Disabled people
Please note that on 18 June 2013, “Judge Cynthia Pretorius ordered that the Chinese be included in
the definition of black people under the Broad-Based Economic Empowerment Act and
the Employment Equity Act that grant benefits to Africans, Coloureds and Indians” (Watkins, 2013).
It is also important to note that, according to the Amendments to the Act (2006), the designated
group excludes citizens from other countries who claim to be classed as members of the designated
group because they are black.
PROHIBITION OF UNFAIR DISCRIMINATION
Grounds for unfair discrimination (unfair discrimination against employees or prospective employees
on the basis of race, gender, sex, pregnancy, marital status, family responsibilities, ethnic or social
origins, colour, sexual orientation, age, disability, HIV status, religion, conscience, belief, political
opinion, culture, language, and birth is forbidden)
Differentiation may be justifiable under the following circumstances (the onus is on the employer to
prove that discrimination on such grounds was reasonable):

Affirmative action

The inherent demands/requirements of the job:
o
Adverts reading EE, AA – not unfair discrimination
o
White actor to play the role of FW de Klerk (authentic) – not unfair discrimination
Indirect discrimination – have to study employment relations management practices and policies of
the organisation to identify possible unintended discriminatory consequences (i.e., recruitment,
selection, promotion, remuneration, performance appraisals, etc.)
Irrelevant questions should not be asked during the selection process
Employers need to record the job applicants and reasons why applicants were not successful –
records need to be kept for up to 12 months