ARR 214
Introduction
Theme 1
Introduction (Lecturer)
LECTURER:
Adv. D M Smit
CRS 27
Telephone:
401-3593 (W)
smitdm@ufs.ac.za
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Compulsory reading:
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A Practical Guide to Labour Law (PGL) Du Plessis &
Fouche (sixth edition– 2006 Butterworths).
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Additional reading
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Principles of Labour Law (PLL) Van Jaarsveld & Van
Eck. (Third edition 2005 -Butterworths)
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Workplace Law (WL) Grogan (Tenth Edition 2009 –
Juta )
First Assessment:
• 27 February
Second Assessment:
• 24 April
Third Assessment:
• 3 May
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(Dates may change- please refer to
student portal for correct and final
dates)
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A lot of studying is done on their own although the lecturer will be
available when guidance or assistance is needed.
During each lecture or seminar, your lecturer will identify and
prescribe sections of the work you have to study at home for the
next session. The lecturer expects learners to study these sections
on their own and to know the contents for the next lecture or
seminar session.
Note that the lecturer will assume that you are already familiar with
the prescribed section of work when you come to class. Therefore
the lecturer will structure the teaching facilitation in class according to
the knowledge you should have of the topic.
The lecturer will also expect learners to describe and discuss any
problems they have experienced while studying on their own.
Please attend tutorials.
The historical development, sources
and nature of Labour Law in South
Africa
PGL (2006: 3-8);
Van Jaarsveld: (6-22, 204-211)
WL (2009: 1-12)
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Sketch the relevant historical development of both
individual labour law and collective labour law.
Explain the meaning of the concept of labour law.
Distinguish between the concepts of individual and
collective labour law.
Explain the sources of labour law in South Africa and
also discuss the lexical order of these sources and
rules.
Explain the relationship between an employer and an
employee, including the state.
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Labour law
o Individual labour law Roman and Dutch law (common law)
basis. Form of lease agreement – law of contract. Individual
relationship between employer and employee.
o Collective labour law Based on LRA. Collective relationship
between employers/er-organisation and unions.
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Individual rights-based relationship changed by unions
and legislation (by State). Result of collective bargaining
takes preference over individual agreements.
Employment relationship = Private law v Public law
Common law contract = little protection. Legislation.
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http://www.parliament.gov.za/live/content.p
hp?Item_ID=95
Please see this for information purposes only.
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Industrial Conciliation Act in 1924
The Industrial Conciliation Act of 1956 contained the
following provisions:
o the regulation of separate development in respect of
trade unions;
o the creation of an Industrial Court;
o statutory recognition of the concept of “closed shop”;
and
o black people were prohibited from joining registered
trade unions.
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Pursuant to recommendations of the Botha
Commission the Wages Act of 1957 and the
Regulation of Black Labour Relations Act of
1953 were promulgated.
In 1973 provision was made for a system of
committees at workplaces and in 1975 there
were approximately 2,750 committees with a
total membership of approximately 608,000
Black employees pursuant to this system.
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During the 1940’s the following statutes were promulgated:
Factories, Machinery & Building Work Act of 1941 (Occupational
Health and Safety Act of 1993);
Workmen’s Compensation Act of 1941 (Compensation for
Occupational Injuries and Diseases Act of 1993);
Apprentices Act of 1944 (Included in Manpower Training Act of
1981 – now Skills Development Act of 1998);
Unemployment Insurance Act of 1946 (Unemployment Insurance
Act of 1966 – as amended);
Shops and Offices Act (Basic Conditions of Employment Act of
1997).
The position between 1977 and 1982
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Most important event was recommendations of Wiehahn
Commission, most of them having been accepted by Government
and many of them having appeared in new legislation. A few
recommendations, were inter alia:
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a new industrial court should be established;
a national manpower commission should be established;
provision should be made for legislation concerning fair labour practices;
labour laws and practices should correspond with international conventions
and codes;
bargaining rights of workers’ councils be statutorily laid down;
basic labour rights be extended to the public sector;
specific legislation should be adopted regarding unfair labour practices;
conditions of employment and working circumstances of female employees
should be considered with a view to revision.
80’s and 90’s
• Political unrest
• Renewed consultations
• Codesa
• New political dispensation
• Constitution
• New legislation
o LRA
o BCEA
o EEA
o Skills
o Proposed new legislation 2012??
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Common Law
Provisions of a contract of employment
Legislation
Collective agreements
International Labour Law and standards
Custom and Practice
Constitutional provisions
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Some sources take precedence over others.
Bill of Rights is highest in lexical order. Common law is lowest.
Guidelines to determine which rules are applicable in certain situation:
1. Determine whether employee is covered by Basic Conditions of
Employment Act (BCEA).
2. Determine whether issue in question, such as leave, is covered
by minimum standards prescribed by BCEA.
3. Determine whether employment condition in question is in
contravention of core rights as specified in BCEA.
4. If it is in conflict with BCEA, determine whether there is a council
agreement, ministerial or sectoral determination or another
collective agreement in existence which may limit the core
rights.
5. Compare employee’s contract of employment and BCEA to
determine whether contract may vary conditions of employment.
6. If none of the above rules applies, refer to the common law rules.
Constitution
Core Rights
Collective agreements inside council
Ministerial and sectoral determinations
BCEA
Collective agreements outside council
Individual agreements
Common law
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Remember that there are three parties involved
in Labour Law:
o The employee,
o the employer and
o the State (the state can also be an employer!)
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You should be able to distinguish between
individual and collective labour law and explain
the interaction between the employee and
employer.
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The Individual Contract of Employment and Other
Related Contracts.
Duties of Employers