National Labour Law Profile: South Africa
Contributed by: Ms. Urmila Bhoola BA Hons,
LLB (WITS), LLM (Toronto, Canada) is the Managing Director
of Resolve Workplace Equity. She is an attorney with extensive expertise
in anti-discrimination law and equality, employment equity, labour
law and constitutional law.
Completed: March 2002.
Constitution of South Africa
The Constitution
of South Africa, Act 108 of 1996 was adopted on 10
May 1996 and came into effect on 4 February 1997. The Constitution
is the supreme law of the land, binding on all organs of State at
all levels of government. South Africa is a State founded on the
principles of a constitutional democracy.
The 1996 Constitution is the successor of the earlier interim
Constitution, Act 200 of 1993, which was brought into effect on 27
April 1994, following the first democratic elections in South
Africa. The interim Constitution was the product of months of
negotiations and effectively secured the demise of the ten year old
tri-cameral constitutional system and the apartheid regime, which
flowed from it.
The Country is organized as a central State, which has been divided
into nine provinces.
The Constitution provides for three branches of Government, namely,
the executive, the legislature and the judiciary. The
Constitution gives recognition to the doctrine of separation of
powers by providing a range of various mechanisms which have been
designed to distribute power between the different spheres and
levels of government and to introduce various institutional checks
and balances so as to prevent the abuse of state power.
The executive consists of the cabinet, national government
departments, the provincial executives and the provincial
departments. It is empowered to implement legislation, develop and
implement policy, direct and co-ordinate the work of the government
departments and prepare and initiate legislation. Both the national
and provincial executives are accountable to the national
legislature.
The head of State is the President. He/she is elected by members of
the national executive and enjoys a term of approximately five
years. The Constitution provides that a national election must be
held at least every five years and that a President cannot hold
office for more than two terms.
The legislature is effectively Parliament. Each of the nine
provinces also has it’s own legislature. These ten legislatures
function autonomously and co-operatively within the framework
provided by the Constitution.
The legislature effectively has two houses: the National Assembly
and the National Council of Provinces [NCOP]. The National Assembly
must have a maximum of 400 members and a minimum of 350 members of
Parliament. Parliament is elected by the public through an
electoral system based on proportional representation.
The National Council of Provinces represents the nine provinces and
ensures that the provinces and local government have a voice in
Parliament when laws are made.
The Provincial legislature must have a minimum of 30 members and a
maximum of 80 members. Members are elected from provincial lists on
the basis of the number of votes received by a political party.
Provincial legislatures are responsible only for passing laws
specific to its province and the laws passed are only effective in
that particular province. Parliament may intervene and amend these
laws, if the laws undermine national security, economic unity,
national standards or the interests of another province.
Legislative authority is vested nationally in Parliament [Section
44 of the Constitution], whilst the provincial legislative
authority vests in the provincial legislatures [Section 104 of the
Constitution].
The judiciary is responsible for upholding the laws of the country
and for ensuring that all laws passed by Parliament comply with the
Constitution. The judiciary is composed of various courts, judges
and magistrates. Judicial authority is vested in the courts. The
courts of the land are independent and only subject to the laws of
the constitution.
The hierarchy of courts are as follows:
- The Constitutional Court;
- The Supreme Court of Appeal;
- The High Courts;
- The Magistrates Courts; and
- Various other courts established by Acts of Parliament.
The President, after consulting the Judicial Services Commission
and the leaders of the parties within the national assembly
appoints the President and Deputy President of the Constitutional
Court. Following consultation with the Judicial Services
Commission, the President also appoints the Chief Justice and
Deputy Chief Justice of the Supreme Court of Appeal.
The Judicial Services Commission prepares lists of recommendation,
which is then used by the President to appoint the other nine
judges of the Constitutional Court. The President appoints all the
other Judges in the other courts on the advice of the Judicial
Services Commission.
Issues pertaining to labour matters are dealt with by the Labour
Courts and the Labour Appeal Court of South Africa.
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Labour Rights in the Constitution
The Constitution contains a Bill of Rights, Chapter Two, which
enshrines the rights of all South Africans. The following labour
rights are enshrined in the Constitution:
- Section 18: Freedom of Association
- Section 23: Labour Relations
- Everyone has the right to fair labour practices;
- Every worker has the right to form and join a trade union and to
participate in the union’s activities;
- Every worker has the right to strike
- Every employer has the right to form and join an employers’
organization and to participate in the activities of the
organization; and
- Every trade union, employers’ organization and employer has the
right to engage in collective bargaining.
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Labour Regulation
The History of Labour Law
Prior to the discovery of gold and diamonds in South Africa, the
economy could by and large be described as agrarian, with the main
economic activity being agriculture. The relationship between
employers and domestic workers and farm workers was governed by
various Acts, including the Master and Servants Act 15 of 1856. At
this time, the employment relationship was regarded as being a
“master and servant” relationship.
When gold and diamonds were discovered, mining activity in South
Africa rapidly increased. The booming mining industry brought with
it an influx of labour and workers to the mines. The first South
African trade union was, the Carpenters’ and Joiners’ Union was
established in 1881, largely to protect the interests of skilled
foreign workers working on the mines.
As the mining industry developed, the difference in political power
between whites and blacks became entrenched as trade unions,
catering largely for white workers, mobilised increasingly on the
basis of race. In 1911, the Mines and Works Act was passed which
reserved various types of work for white workers only. This era was
very turbulent and a number of strikes, with the aim of securing
the position of white workers on the mines, took place.
After the general strike of 1914, martial law was declared and
trade union leaders were deported from South Africa. The “labour
peace” which ensued was short lived as the circumstances of the
mines worsened due to the economic depression, a large foreign debt
and the rising costs of living. The mines responded by
restructuring. This led to a number of white workers being
retrenched, which in turn led to the abolition of the ratio between
skilled white workers and unskilled black workers on the mines.
This situation gave rise to the 1922 strike, one of the watershed
moments in South African labour history. The result of this strike
was the passing of the Industrial Conciliation Act in 1924. This
Act was the direct forefather of the Industrial Conciliation Act of
1956, which was later, renamed the Labour Relations Act of 1956. In
terms of this Act, trade unions representing white workers were
accorded recognition, while a separate system for Black workers
were created.
In 1948, the National Party came into power, which saw the birth of
Afrikaner Nationalism. In 1950, the Suppression of Communism Act
was passed which led to the large-scale repression of
union-activists. The 1950’s was a turbulent time in the political
history of South Africa. This turbulence led to the amendment of
the 1956 Industrial Conciliation Act, in order to ensure tougher
controls over black workers.
The Wiehahn Commission of Inquiry was established in 1979 to
investigate the labour situation in South Africa. The resultant
report of the Commission went on to change the face of South
African labour relations and labour law. The most consequential
recommendation made by the Commission was the extension of freedom
of association to cover all persons, irrespective of race or sex.
The result was that trade unions representing Black workers were
now able to make use of the machinery of the Labour Relations Act
of 1956.
The period between 1991-1994 saw the birth of the new democratic
South Africa. In 1994, the Interim Constitution, Act 200 of 1993,
came into effect. The Act totally changed the constitutional basis
of the South African legal system and it became clear that the
Labour Relations Act of 1956 was not in line with the new
constitutional order.
In 1994, the Department of Labour appointed a Ministerial Legal
Task Team to draft new labour legislation and the Labour Relations
Act 66 of 1995 was born and came into effect on 11 November 1996.
The Act heralded a new era in South African labour law.
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The sources of labour law
The sources of South African labour law include:
- Legislation;
- Judicial precedent (judicial decisions), including arbitration
awards;
- Collective agreements;
- Common law; and
- Custom and legal writings
Since the democratisation of South Africa after April 1994 the
country’s labour law was amongst the first areas of law to be
reformed. The main employment law statutes of South Africa
are the following:
Employment protection legislation applies to all employees who
ordinarily work in South Africa. Therefore, the legislation
also covers employees who work partly outside South Africa and
partly inside South Africa and outside the country. It also
applies regardless of the stated governing law of any employment
contract or the nationalities of either the employee or the
employer. It is not possible for an employee to contract out
of statutory employment protection unless the legislation
specifically permits it and then, only to the extent permissible in
terms of the legislation. In many cases, the legislation is
supported by codes of practice which may be statutory codes of
practice drawn up by the
National Economic Development and Labour Council (NEDLAC) or
non-statutory codes of practice issued by the Commission for Conciliation, Mediation
& Arbitration (CCMA). These codes of practice,
although often merely providing guidelines and accordingly not
always being of direct legal effect, are taken into account by the
Labour Courts in deciding whether or not an employer has breached
statutory employment regulations. Additionally, there are
numerous laws implementing health and safety regulations.
Unlike the law in certain other countries, collective agreements
are normally legally enforceable as between employers and trade
unions. The Labour Relations Act 66 of 1995, (“the LRA”)
supports the primacy of collective agreements and emphasises the
need for organised labour and business to regulate its relationship
through the entering into of collective agreements which binds the
employer, the union’s members and, where the union represents more
than 50% of the employees in a workplace and if such intent is
stated, non-union members in the workplace.
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Contract of Employment
The starting point should be that a written contract of employment
is not strictly a necessary requirement for the validity of an
employment relationship.
However, the Basic Conditions of Employment Act (No. 75 of 1997 –
the BCEA) compels an employer to give an employee a host of
prescribed employment details in writing when they start work with
that employer. This is to ensure certainty between the employer and
employee, and attempts to protect the ‘vulnerable’ employee against
the employer who holds the purse strings in the event of any
disagreement as to the details.
It therefore makes more sense to enter into a detailed contract of
employment upfront with the employee, and thereby bind him/her to
the Company’s disciplinary codes and the like at the same time,
rather than to provide a list of prescribed details in a rather ad
hoc or non-contextualised manner. A comprehensive contract
also has the benefit of being signed by both parties and is
therefore legally binding. It is very often the essence of an
employment relationship – it details its commencement, currency,
and termination – since in most cases the document will ‘speak for
itself’.
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Prescribed Written Particulars
These are dealt with in Section 29 of the BCEA. They are:
- The name and address of the employer - These may seem like
obvious details, but many an employee claim has been thwarted
either by insufficient or incorrect details in this regard (e.g.
regarding the identity of the employer party, especially in a group
or division of companies, and in enforcing a judgment).
- The employee’s name - Again apparently an
obvious requirement but it provides certainty as to the parties.
- The employee’s occupation or a brief description of the work for
which the employee was employed - Certainty on this issue
is required for reasons relating to advancement and remuneration,
giving instructions which are reasonable to that post, performance,
discipline and the like.
- The employee’s place of work - and if the
employee is required or permitted to work at various places, an
indication
of
this. The employee should agree at the outset of the employment
relationship that s/he would be required to travel, work at various
stations etc, failing which s/he may not easily be compelled
to do so at a later date without agreement. The employer may
have to remunerate the employee additionally for undertaking work
at
different places, and could not simply compel the employee to
do so if it has not been agreed initially in the contract.
- The date of commencement of employment -
this is important for the calculation of benefits such as leave,
recognition
of
length of service and the benefits attached to it – e.g. severance
pay in a retrenchment.
-
The employee’s ordinary workdays and work hours - The
BCEA sets minimum standards (more specifically, maximum hours
and days
that may be worked) in this regard, which may not be changed
in most cases even with an employee’s consent. The regulation
of working hours will be addressed in more detail below.
- The employee’s wage or the rate and method of calculating
wages - This has undoubtedly been included for certainty,
consistency and protection for the employee, in addition to
ensuring that the employee is fairly remunerated for leave, for
overtime, etc.
- The overtime rate - Similar to above.
- Any other payments in cash or kind to which the employee
may be entitled (and for payments in kind, the value of those
payments) - Again important for calculating the monetary value
and benefits to which an employee would be entitled during leave,
on termination (e.g. severance pay on retrenchment is calculated
at one week’s remuneration per completed year of service,
not one week’s base salary. Remuneration includes
the value of a number of benefits.
- The date when remuneration will be paid -
promotes certainty and consistency.
- Details of any deductions that will be made from
the remuneration - In addition to reasons of certainty,
the nature and amount of deductions that can be made from an
employee’s
remuneration is strictly regulated by the BCEA.
- The amounts of leave which can or must be taken -
This aspect will be dealt with in detail below. It will
suffice to state that the BCEA strictly regulates when and how
much leave may and shall be taken. This relates
not only to annual leave, but also sick, maternity and family
responsibility
leave in respect of which there are legislated minimums that
may not be contravened.
- The period of notice - This too is strictly
regulated by the BCEA - the quantity and manner of giving notice
of termination of
a contract of employment will be specified below.
- A description of any bargaining council or sectoral
determination that covers the employer’s business - This
too is in protection of employee rights since it is often the
case that
terms and conditions of employment more favourable to the BCEA
are collectively negotiated within a bargaining council. The
bargaining council standards will then take precedence over those
set out in the BCEA.
- Any period of employment with a previous employer that counts
towards the employee’s period of employment. E.g. the length
of service with a seller who transfers its business to the
purchaser, is obliged to recognize the employee’s previous length
of service, for the purpose of calculating benefits, such as
severance packages, long service awards and the like.
- A list of any other documents that form part of the
contract - (and an indication of where a copy of these documents
may be obtained). This would relate to policies and
procedures, and the like, of the employer. It again provides
certainty to the parties to the employment relationship.
If and when any of the above details change, the employee is to be
notified of the change and be given a copy of the change.
Employment contracts are of two types.
Fixed-term contracts: The duration of the contract is clearly
specified between the parties. The contract will endure for the
specified period, or upon the happening of a particular event or
until a particular task has been completed. Unless otherwise
agreed, such a contract cannot be terminated during its currency
without good cause, unless the parties have agreed otherwise. If
after the contract has lapsed and the employee remains in the
employ of the employer, the contract may be tacitly renewed,
provided that it is consistent with the parties’ conduct. The LRA
expressly provides that non-renewal of a fixed term contract is
equivalent to a dismissal in circumstances where the employee
expected the employer to renew it on the same or similar terms but
the employer either failed to renew the contract at all or offered
to renew it on less favourable terms [Section 186 LRA].
Indefinite-period contracts: The duration of the contract is not
specified by the parties. The contract will endure until:
- it is terminated by agreement;
- one of the parties give the contractually specified or reasonable
notice to the other;
- either party elects to terminate on fundamental breach;
- on retirement of the employee at the agreed age;
- summary termination of the employee;
- death of either party; and
- insolvency of the employer.
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Probation
It is quite common that employers engage employees for a
probationary period, which may be negotiated and stipulated in the
contract of employment. After expiry of the probationary period,
the employer is entitled to decide whether to retain the services
of the employee on a permanent basis. The Code of Good Conduct,
contained in the LRA, expressly provides for probationary periods
and employees. The Code stipulates that the probationary period
must be reasonable given the circumstances of the job and the time
it takes to determine the employee’s suitability for the job. The
probationary period can be extended, in suitable circumstances.
The Code also states that following termination of the probationary
period, probationary employees should not be dismissed unless they
have been given appropriate remedial treatment and they have been
allowed a reasonable period for improvement but have failed to
improve their performance. If the employer fails to counsel the
probationary employee and thereafter fails to confirm the
employee’s employment, such termination will amount to a dismissal.
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Termination of the contract of employment
The contract of employment can be terminated on the following
grounds:
- on expiration of the agreed period of employment;
- on completion of the specified task;
- by notice duly given by either party;
- by summary termination in the event of a material breach on
the part of either party;
- by repudiation;
- by mutual agreement;
- by death of either party;
- by the insolvency of the employer; and
- by the supervening impossibility of performance, where either party
becomes permanently unable to perform his/her obligations in terms
of the contract.
The contract may not be terminated in the absence of a justified
reason.
The LRA expressly recognises the following grounds for termination
of the employment contract:
- misconduct on the part of the employee;
- the employee’s poor work performance and/or incapacity;
- the operational requirements of the employer.
The concept of unfair dismissal is a right created by statute and
contained in the LRA. Chapter VIII of the LRA, along with an
accompanying code of practice, has made a large contribution to
systematising and clarifying this important area of South African
employment law. Unfair dismissals now fall into four
categories:
- Automatically unfair dismissals
- Dismissals which an employee cannot justify on the basis of:
- the employee’s conduct;
- the employee’s capacity; or
- the operational requirements of the business.
Besides these substantive grounds, dismissal will also be unfair
where it is not effected in accordance with a fair procedure.
The meaning of dismissal has been extended by statute to include:
- a failure to renew a fixed term contract when there was a
reasonable expectation of renewal;
- a failure to allow an employee to resume work after maternity
leave;
- selective employment following a collective dismissal;
- a situation where an employee terminates the contract because the
employer has made continued employment intolerable (constructive
dismissal);
A dismissal is automatically unfair if it:
- offends against an employee’s rights to freedom of association;
- is by reason of an employee’s refusal to do protected strikers’
work;
- is effected to compel an employee to accept a demand relating to
employment;
- constitutes victimisation for exercising any rights under the
statute;
- is by reason of an employee’s pregnancy;
- constitutes discrimination on some arbitrary ground.
An employee’s rights emanate from either statute or common
law. Whilst there does exist certain residual common law
rights arising out of breach of contract which may be proceeded
with by an employee to the High Court of South Africa, the exercise
of these rights is rare and the relevance to EPL liability issues
extremely limited. By far the vast majority of cases arise
out of a breach of statutory rights and obligations. The
statutory rights may relate to the following issues:
- Automatically unfair dismissals
- Unfair dismissals
- Operational terminations (redundancy/retrenchment)
- Residual unfair labour practices
- Transfer of businesses
- Alleged discrimination, etc.
A dismissal that is not automatically unfair is deemed to be unfair
unless the employer proves that the dismissal is for a fair reason
either related to the employee’s conduct or capacity or based on
the operational requirements of the employer. In addition the
employer must prove that the dismissal was effected in accordance
with a fair procedure. Accordingly, even if the dismissal is
proven to be related to the employee’s conduct, capacity or based
on the employer’s operational requirements (i.e. substantively
fair), it will nevertheless still be unfair (procedurally unfair)
if the employer has not followed a fair procedure.
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Remedies available
If an unfair dismissal claim succeeds the CCMA has a choice of
remedies. The commissioner may:
- Order the employer to reinstate the employee from any date not
earlier than the date of dismissal.
- Order the employer to re-employ the employee, either in the work in
which the employee was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal.
- Order the employer to pay compensation to the employee.
The primary remedy applied by the CCMA in respect of a dismissal
which is substantively fair is to order reinstatement or
re-employment. In the event that the employee does not wish
to be reinstated or re-employed or the circumstances are such that
a continued employment would be either intolerable or no longer
reasonably practical or the dismissal is unfair only because the
employer did not follow a fair procedure, the commissioner may
award compensation rather than reinstatement/re-employment.
There are certain limits on compensation. In the case of an
automatically unfair dismissal, the commissioner is enjoined to
make an award which is “just and equitable” in all the
circumstances, but not more than the equivalent of 24 months’
remuneration. In an unfair dismissal the commissioner may
award up to a maximum of 12 months’ remuneration as compensation.
The Labour Appeal Court has held that compensation arises out of
statute and does not relate to patrimonial loss. The Labour
Courts have a discretion on whether compensation should be awarded
or not. If the Labour Courts decide that the case is such
that compensation should be awarded, they have no discretion in
respect of the amount. Compensation must be awarded from the
date of dismissal to the date of adjudication, subject to a maximum
of 12 months compensation.
This has serious ramifications for procedurally unfair
dismissals. In the past a commissioner/arbitrator may have
decided to award a month or two’s compensation because of the minor
nature of the employer’s lack of procedural compliance. The
Labour Courts are now faced with adopting an “all or nothing”
approach and now have to award either 12 months or nothing to an
employee who has been visited with a procedurally unfair
dismissal. In most instances, other than cases of trivial
procedural deficiencies, this will result in 12 months compensation
being awarded to the employee for procedural unfairness because of
the inherent delays in having such matters heard.
In the event that a party can establish that the delay is due to
the fault of the other party in not expeditiously pursuing his or
her remedies, the court is empowered to take such delay into
account in calculating compensation.
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Hours of Work and Leaves
The BCEA sets clearly defined limits on working hours for employees
who earn below R89 455, 00 per annum, and for employees
(irrespective of their gross annual earnings) who are empowered by
the Company with the authority to ‘hire and fire’. The
working hours provisions do also not apply to sales staff who
travel to customers and regulate their own hours, or to employees
who work less than 24 hours per month.
Save for the exceptions outlined above, the working hours of all
other employees must be regulated in accordance with the BCEA and
cannot be contracted out of or excluded.
What then are those statutory hours of work?
Ordinary hours of work (i.e. not overtime) may not be more than 45
hours in a week or 9 hours in a day. For employees who work a
6-day week, it is 8 hours per day.
Any additional hours will be considered overtime for which a
specified amount of additional remuneration is prescribed.
Overtime is limited to a total of 10 hours per week and then too,
may not exceed 3 hours of overtime per day.
An agreement is necessary between the employer and the employee for
overtime work.
Overtime work must be paid at no less than 1.5 times the normal
hourly rate, or time off (equivalent to 1.5 times), or partially
paid and partially paid time off.
The BCEA does recognize a certain amount of flexibility in
arranging shifts and work times. These are however also
regulated – e.g. a compressed working week can be implemented by
means of a written agreement, to allow for 12 ordinary hours of
work (including meals) to be done in a day. It may however
only be done in terms of a 5-day week, and with regard to the
statutory daily rest periods. Averaging of hours is
also recognized by the BCEA, to enable more hours to be worked on a
particular day and less on another provided it ‘averages’ out over
a period of 4 months to the statutory weekly limit on ordinary and
overtime hours of work per week. Averaging can however only
be done in terms of a collective agreement (i.e. a written
agreement concluded with a registered trade union), and must be
subject to the daily and weekly rest periods.
A meal interval of at least one hour is compulsory for employees
who work more than 5 continuous hours. The meal interval can
be reduced to 30 minutes by written agreement (e.g. in the contract
of employment) with the employee.
An employer must allow an employee a daily rest period of at least
12 consecutive hours between ending and restarting work.
There is also a compulsory weekly rest period of at least 36 hours.
The rest period must include a Sunday unless otherwise
agreed. There is some flexibility permitted and it would be
advisable to include such issues in the contract of employment.
Employees can only be required to work on a Sunday or a public
holiday where they have agreed to it. The employee must be
paid at double his normal wage/rate, if he does not ordinarily work
on Sundays, and at 1.5 times his ordinary rate if he does
ordinarily work on Sundays. Paid time off may be agreed to
instead of additional payment.
Employees are entitled to at least the 12 current public holidays
provided for in the Public Holidays Act. However, by agreement, a
public holiday may be exchanged for another day. An agreement
is also required to get an employee to work on a public holiday.
Double pay (or ordinary wage plus paid time off) must be paid if
the employee works on a public holiday that falls on an ordinary
workday.
Employees who perform night work enjoy special protection in terms
of the BCEA. Night work means work done between 6 o’clock in
the evening and 6 o’clock the next morning. An employer can only
require an employee to do night work if there is an agreement with
the employee (e.g. in the contract of employment), the employee is
paid an allowance (which may be a shift allowance) or receives a
reduction in working hours, and if there is transport
available between the employee’s home and the workplace.
There are a number of strict regulations around night work,
including those contained in a code of good practice passed in
terms of the BCEA, in ensuring the health and safety of employees
who do night work.
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Paid Leave
The BCEA prescribes a leave period of no less than 21 consecutive
days per completed year of employment (or 1 day for 17 day’s
worked, or 1 hour for 17 hours worked), on full pay. Public
holidays are not part of annual leave, and may not be
‘encashed’. Leave can also not be accumulated form one year
to the next. It is important to note that an employer is
compelled to ensure that statutory leave is taken within a period
of 6 months of the end of the annual leave cycle.
Additional holiday leave may however be agreed between employer and
employee and may be dealt with in any way agreed, usually set out
in the contract of employment.
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Sick Leave
There is also an entitlement to a minimum number of sick leave on
full pay. An employee is entitle to one day’s paid sick leave for
every 26 days worked during the first four months of employment,
and thereafter to 30 days paid sick leave for every 36 months
worked (the leave cycle). An employer will only be obligated to
grant paid sick leave of longer than two days or for longer than
one day when more than two absences occurred in a space of eight
weeks, if the employee produces a valid medical certificate which
has been issued by a medical practitioner.
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Maternity Leave
Employees are entitled to maternity leave of no less than 4 months,
which is to start from 4 weeks prior to due date of birth, and end
not less than 6 weeks after birth of the child. Maternity leave is
classified as unpaid leave, unless otherwise agreed by the parties.
There are also strict provisions around the nature of work that a
pregnant or nursing employee is not permitted to perform where it
could be hazardous to her or the child’s health.
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Family Responsibility Leave
Employees are also entitled to take family responsibility leave. An
employee who has been employed for longer than four months and who
works four days or more for the employer is entitled to three days
paid leave during each twelve month leave cycle to discharge family
responsibilities in the following circumstances:
- When the employee’s child is born or falls ill;
- In the event of the death of the employee’s spouse or life partner,
parent, adoptive parent, grandparent, child, adopted child,
grandchild or sibling.
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Minimum Age and the Protection of Young Workers
The BCEA makes it a criminal offence to employ a child under 15
years of age or under the minimum school-leaving age, if this is
older. Beyond the age of 15 years, no person may employ a child for
work that is inappropriate or that place his/her well-being,
education, physical or mental health or spiritual, moral or social
development.
The Constitution goes further by giving children further protection
from exploitative labour practices – Section 28 (1) (e) and
(f).
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Equality
The Constitution guarantees the right to equality and also gives
protection to all from unfair discrimination. It goes further by
acknowledging that affirmative action measures are necessary to
advance disadvantaged groups. Furthermore, the Constitution
requires laws to be enacted to prevent discrimination, including
workplace discrimination. The legislature has since passed and
implemented the Employment Equity Act to deal with unfair
discrimination and workplace equality.
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The Employment Equity Act
The purpose of the Employment Equity Act is to ensure workplace
equity. It prohibits unfair discrimination in the workplace and
guarantees equal opportunity and fair treatment to all employees.
However, it recognises that, given the historical disparities,
simply removing discrimination does not in itself result in
substantive equality. The Act therefore imposes an obligation on
certain employers ("designated employers") to implement affirmative action measures
to advance "designated groups" (African, Indian and Coloured
people, women and people with disabilities).
A key requirement of the Employment Equity Act is the elimination
of all barriers, particularly unfair discrimination, in the
workplace.
What are barriers?
A barrier exists where a policy, practice or an aspect of the work
environment limits the opportunities of employees because they are
from designated groups. Examples of ‘barriers’ previously
identified in comparative discrimination law include:
- the lack of role models from designated groups in senior positions
in a corporation;
- the “glass-ceiling” for women, as manifested in the “old boys''
network; expectations of long working hours; and lack of childcare
facilities or “career breaks”;
- job specifications that set requirements which are not essential
for job performance (for example, a matric or university degree);
- workplaces structured according to the assumptions of a homogenous,
white, male workforce.
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Pay Issues
South African law does not prescribe minimum wages through statute.
Usually wages are fixed by the employer or by collective agreements
or by the employee’s contract of employment.
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Trade Union Regulation
The LRA sets out a procedure for the registration of trade unions
and employer organisations. It allows a union which is independent,
has a distinctive name, an address in the Republic and which has
adopted a constitution which meets the requirements of the law, to
make application for registration. Unions and employer’s
organisations are not obliged to register, but registration is a
precondition for participation in the industrial relation system
developed by the Act.
The registrar of labour relations has the discretion to refuse an
application to register a trade union, in terms of the Act.
However, this discretion is strictly controlled by the Act. The LRA
also allows a trade union to appeal the decision of the Registrar
to the Labour court.
Chapter 2 of the LRA sets out basic labour rights. Chief
amongst these is freedom of association – the right of employees
and employers to join and participate in the lawful activities of
unions and employer organisations respectively.
On the employee’s side, the right to freedom of association
protects against both interference, state interference and the
union discrimination on the part of an employer. Now that the
unfair labour practice remedy has been limited to individual
employees, considerable union attention is now given to the
anti-discrimination provisions contained in the LRA and the EEA.
The Constitution recognises the right to freedom of association,
the right to form and join a trade union and the right to
participate in trade union activities.
The LRA gives recognition to organisational rights in Sections 12
and 13. It allows a registered union or a sufficiently
representative union to-
- Enter an employer’s premises to recruit or communicate with
members;
- Hold meetings with employees outside working hours;
- Conduct union elections or ballots at the workplace;
- Instruct the employer to make deductions of and pay over union
membership subscriptions from member employees;
- Reasonable leave, including possible paid leave, for their office
bearers.
Registered unions which have as members a majority of employees in
a workplace have a further right to disclosure of all relevant
information, which allow its representatives to perform their
functions.
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Unfair Labour Practices
Item 2(1) of Schedule 7 of the LRA gives recognition to the notion
of “residual unfair labour practices”. The Act defines the notion
as any unfair act or omission which arises between the employer and
employee and which involves –
- direct or indirect unfair discrimination on any arbitrary ground;
- unfair conduct of the employer relating to the promotion or
demotion, training or benefits of the employee;
- unfair suspension of an employee or any other disciplinary action;
- failure or refusal of an employer to re-instate or re-employ an
employee in terms of an agreement.
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Remedies
As with other disputes, those in relation to alleged unfair labour
practices must first be referred to the CCMA for conciliation. If
after conciliation the dispute remains unresolved, the parties may
then refer the dispute to the labour court for adjudication or to
arbitration, if it is so agreed by the parties. The Court has wide
discretion and may determine the dispute on terms it deems or
reasonable, including but not limited to the ordering of
reinstatement or compensation.
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Collective Bargaining and Agreements
The LRA states that one of its central objectives is to promote
collective bargaining as a means of regulating relations between
management and employees and as a means of settling disputes
between them.
The approach of the LRA is quite different from its
predecessor. The collective dimension of the unfair labour
practice jurisdiction has been effectively abolished and with it
the duty to bargain. However, the institution of collective
bargaining is unequivocally fostered, albeit down a different
path. The object has been to create a statutory framework
conducive to bargaining whilst preventing the judicial
appropriation of politically sensitive terrain. The key
bargaining-promoting measures include:
- organisational rights, which allow unions with a membership base to
establish themselves in the workplace;
- the self-governance benefits flowing from participation and
bargaining councils, particularly now that council agreements can
override many of the restrictions imposed by the BCEA;
- the moral force of CCMA advisory awards under Section 64(2) in the
event of the refusal to bargain;
- the socio-political leverage of NEDLAC, whose peak employer bodies
cannot be seen to countenance a refusal by members to impress the
collective bargaining ethic;
- The right to engage in a protected strike over an employer’s
refusal to bargain.
The LRA fosters and rewards representative unionism. In other
words, it promotes inter-union co-operation and union amalgamation.
Only unions that are sufficiently representative in a workplace are
entitled to organisational rights. Unions with majority membership
are entitled to receive relevant information from the employer and
to conclude collective agreements.
A collective agreement is a legally enforceable instrument and is
negotiated by the parties usually concerns terms and conditions of
employment or any other matter of mutual interest between the
parties. The only formality in respective of collective agreements
is that it must be reduced to writing. The agreements bind the
parties to the agreement and their members. The agreement can also
be extended to bind non-union members if the party union has
majority membership within the workplace. Collective agreements
will override the provisions of any inconsistent individual
employment contracts and may also be concluded within bargaining
councils and thus save as minimum wage and working conditions
instruments.
Bargaining Councils have been established by the LRA and are by
definition, statutory bodies that registered unions and employer
organisations may voluntarily and co-operatively establish within a
specific economic sector. They represent the centre-piece of the
system of bargaining fostered by the LRA.
Collective agreements are inclined to be time-bound, with a life
span that is by and large determined by the parties’ bargaining
cycles. However, the agreement can be terminated on reasonable
notice by either party.
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Strikes and Lock-Outs
The right to strike is entrenched in Section 23 of the
Constitution. Employers enjoy a reciprocal right to lockout, which
is also constitutionally entrenched.
The LRA does regulate the right to strike and lockout. The LRA
defines a strike as a partial or complete concerted refusal to work
or the retardation or obstruction of work by employees of the same
employer for the purpose of remedying a grievance or resolving a
dispute in respect of a matter of mutual interest.
A lockout is defined as an exclusion by the employer of the
employees from the employer’s workplace for the purposes of
compelling the employees to accept a demand in respect of any
matter of mutual interest.
Protected strikes and lock-outs are those which comply with the
procedures as laid down in Chapter IV to the LRA, namely:
- the party to the dispute must first refer the dispute to the
bargaining council with jurisdiction or if there is none, to the
CCMA, for conciliation;
- if the dispute remains unresolved, a certificate of non-resolution
must be obtained or alternatively, the party may wait for the
statutory 30-day period to lapse;
- once the certificate has been obtained and/or the 30-day period has
lapsed, the concerned party must then give the other party 48 hours
notice of the strike or lockout.
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Effect of a protected strike or lockout
The LRA extends strong protection to strikes and lockouts that
comply with its provisions:
- Guarantees immunity from the reaches of the civil law i.e. they do
not constitute a delict or breach of contract;
- An employer is not obliged to remunerate an employee for services
not rendered during a strike;
- Employees are protected from dismissal.
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Effects of an unprotected strike or lockout
The LRA has decriminalised non-compliance with the Act. However,
other sanctions are imposed for non-compliance:
- The affected party can approach the Labour Court for an interdict
or order restraining a strike or lockout.
- The Labour Court can also order the payment of just and equitable
compensation in the circumstances.
- Participation in an unprotected strike may constitute a fair reason
for dismissal.
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Strikes in essential services
Section 65 (1) (d) of the LRA prohibits strikes and lockouts in
essential services and maintenance services. Instead employers and
employees are obligated to refer their disputes to final and
binding arbitration. The Act defines an essential service as a
service the interruption of which endangers the life, personal
safety or health of the whole or any part of the nation, the
parliamentary service and South African Police Services.
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Settlement of Individual Labour Disputes
South Africa has established specialist Labour Courts. These
courts exist side by side with the traditional courts. Whilst
the High Court of South Africa still retains concurrent
jurisdiction with the Labour Courts in respect of certain issues,
e.g. breach of contract, constitutional issues, the Labour Courts
generally exercise exclusive jurisdiction over specialist labour
matters. The Labour Court of South Africa has exclusive
jurisdiction over all matters reserved for it under the LRA.
It is also a court with inherent jurisdiction. It has
concurrent jurisdiction with the High Court in respect of
violations of certain fundamental rights protected in the
Constitution. The Labour Courts’ primary tasks are to:
- adjudicate disputes relating to freedom of association (union- and
employer- organisation membership);
- adjudicate automatically unfair dismissals including dismissals
arising out of operation requirements (i.e. redundancy/retrenchment
matters) as well as strike disputes;
- review CCMA arbitration awards.
In determining the above matters the Labour Court may issue
declaratory and interdict relief (including urgent relief), make
compensatory damages and costs awards.
The Labour Appeal Court’s task is to hear appeals against final
judgments of the Labour Court to decide questions of law reserved
by the Labour Court. Labour Appeal Court judges must be
judges of the High Court of South Africa whilst Labour Court judges
are normally appointed from the ranks of experienced legal
practitioners.
The CCMA is tasked with resolving multifarious employment related
disputes. Such disputes include the following:
- freedom of association and general protection,
- disclosure of information,
- collective agreements on organisational rights,
- withdrawal of organisational rights,
- interpretation or application of organisational rights,
- interpretation or application of collective agreements,
- interpretation or application of agency or closed shop agreements,
- non-admission as a party to close a shop,
- interpretation or application of a ministerial determination,
- interpretation or application of a lapsed collective agreement,
- interpretation or application of collective bargaining provisions,
- any matter of mutual interest,
- refusal to bargain,
- unilateral change to terms and condition of employment,
- picketing,
- disputes and essential services,
- joint decision making (workplace forum),
- disclosure of information (workplace forum),
- interpretation or application of workplace forum provision,
- unfair dismissal,
- severance pay,
- unfair labour practices.
The CCMA is also responsible for arbitrating disputes. The
CCMA is entitled to arbitrate the following disputes:
- disclosure of information,
- collective agreement on organisational rights,
- withdrawal of organisational rights,
- interpretation or application of organisational rights,
- interpretation or application of collective agreements,
- interpretation or application of agency or closed shop agreements,
- interpretation or application of ministerial determinations,
- interpretation or application of lapsed collective agreements,
- disputes in the essential services,
- joint decision making (workplace forum),
- disclosure of information (workplace forum),
- interpretation or application of workplace forum provisions,
- consent to arbitration,
- arbitration of Labour Court matter by consent,
- unfair dismissal,
- severance pay,
- unfair labour practices.
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Judges and Commissioners
Labour Court judges are normally appointed from the ranks of
specialist labour law practitioners (practising advocates or
attorneys) and in some cases suitably qualified academics.
Labour Appeal Court judges must, in addition, be judges of the High
Court of South Africa. CCMA commissioners, unlike Labour
Court judges do not have to have legal qualifications. There
are various levels of commissioners appointed and generally the
more senior commissioners are either legally qualified or have
experience in arbitrating disputes. Commissioners are
required to conciliate or arbitrate disputes. Disputes are
first conciliated and if they remain unresolved, referred to
arbitration, normally before a different commissioner.
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Defence Issues
The Labour Courts generally do not award costs against the other
party unless such party has acted frivolously, vexatiously or
unreasonably in bringing or conducting the proceedings. In
the common law courts, costs are awarded at the discretion of the
court, but usually the losing party will be required to pay the
taxed costs (approximately 50% of the actual costs) of the
prevailing party.
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Length of Proceedings
There is currently a backlog in the CCMA of at least between 1 to 3
months in having a case conciliated depending upon the region in
which the case is referred. The delay in having matters
arbitrated before the CCMA is greater and in practice it is now
taking approximately one year depending upon the region. The
delays in the Labour Court may even be greater. Matters that
have been conciliated upon by the CCMA and referred to the Labour
Court may take anything between 6 to 12 months to be heard.
Delays, particularly in the Labour Court, are increasing.
Cases may take from a half-day 5 days or more in complicated
matters.
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Legal Representation
In the Labour and Labour Appeal Courts legal representation is not
compulsory but most employers and many employees are usually
represented. In the CCMA legal representation is permitted,
save for incapacity and misconduct cases where legal representation
is in the discretion of the commissioner and must be on application
by one or both parties. Legal representation in such matters
is not normally permitted unless there are complex issues of facts
and law, conflicting arbitration awards or it is in the interests
of public policy that legal representation be permitted.
Generally, at the CCMA if legal representation is sought it is
preferable to apply for the appointment of a senior commissioner,
which, if successful, will normally result in the parties being
afforded legal representation.
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Class Actions
There is no specific provision for class actions in our Labour
Courts. Often, however, matters are brought by representative
trade unions for and on behalf of their members and without their
members being specifically cited. This form of representative
action is permissible.
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Damages and Compensation Issues
Damages and compensation granted are normally limited to 24 months
(in respect of automatically unfair dismissals) and 12 months (in
respect of unfair dismissals) and are not strictly linked to
patrimonial loss. The primary remedy in South African labour
law, unlike England and other jurisdictions, is that of
reinstatement/re-employment.
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Societal Disposition
There is an increasing propensity by employees to avail themselves
of their rights in terms of employment related legislation.
Historically, litigation relating to unfair dismissals was brought
by trade unions and largely unskilled aggrieved employees.
Increasingly members of management (including senior management)
have come to appreciate that South African employment legislation
draws no distinction between senior managerial and lowly skilled
employees and affords them the same rights and benefits. This
has resulted in a large number of plaintiff based labour lawyers
and labour consultants seeking relief (sometimes on a contingency
basis) on behalf of their clients. Such relief is often based
on the failure of employers to properly comply with the strict
procedural requirements associated with dismissal in South Africa
(to which reference will be made below) and to seek compensation in
respect thereof. Such claims for compensation often result in
settlements being agreed between the parties, which may be in
excess of any compensation that the employee may actually have
suffered.
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ILO Conventions Ratified by South Africa
South Africa joined the ILO in 1919, but it left the Organization
in 1966, because of the ILO position concerning the government’s
apartheid policy. It resume membership in 1994. So far it has
ratified 21
conventions, of which 18 are in force for the country,
including the eight ILO fundamental conventions.
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Web Links
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Bibliography
The following major sources were used:
-
Basson et al., Essential Labour Law, Volume One, Second Edition,
Labour Law Publications, 2000.
- Grogan J, Workplace Law, Juta & Co Ltd, 1998.
- Du Toit et al., The Labour Relations Act of 1995- A Comprehensive
Guide, Second Edition, Butterworths, 1998.
- Thompson B, Benjamin P, South African Labour Law, Volume One,
Juta Law, 2001.
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