ARR 214Introduction Theme 1

Introduction (Lecturer)

LECTURER: Adv. D M SmitCRS 27Telephone: 401-3593 (W)smitdm@ufs.ac.za

• Compulsory reading:• A Practical Guide to Labour Law (PGL) Du Plessis &

Fouche (sixth edition– 2006 Butterworths).

• Additional reading• Principles of Labour Law (PLL) Van Jaarsveld & Van

Eck. (Third edition 2005 -Butterworths)

• Workplace Law (WL) Grogan (Tenth Edition 2009 – Juta )

First Assessment: • 27 February Second Assessment: • 24 April Third Assessment: • 3 May

• (Dates may change- please refer to student portal for correct and final dates)

• 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

AfricaPGL (2006: 3-8);

Van Jaarsveld: (6-22, 204-211)WL (2009: 1-12)

• 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.

• Labour lawo Individual labour law Roman and Dutch law (common law)

basis. Form of lease agreement – law of contract. Individual relationship between employer and employee.

o Collective labour law Based on LRA. Collective relationship between employers/er-organisation and unions.

• Individual rights-based relationship changed by unions and legislation (by State). Result of collective bargaining takes preference over individual agreements.

• Employment relationship = Private law v Public law• Common law contract = little protection. Legislation.

http://www.parliament.gov.za/live/content.php?Item_ID=95

Please see this for information purposes only.

• 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.

• 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.

• 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• 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:1. a new industrial court should be established;

2. a national manpower commission should be established;

3. provision should be made for legislation concerning fair labour practices;

4. labour laws and practices should correspond with international conventions and codes;

5. bargaining rights of workers’ councils be statutorily laid down;

6. basic labour rights be extended to the public sector;

7. specific legislation should be adopted regarding unfair labour practices;

8. 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 LRAo BCEAo EEAo Skillso Proposed new legislation 2012??

1. Common Law2. Provisions of a contract of employment3. Legislation4. Collective agreements5. International Labour Law and standards6. Custom and Practice7. Constitutional provisions

• 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

BCEA

Ministerial and sectoral determinations

Collective agreements outside council

Individual agreements

Common law

• 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!)

• You should be able to distinguish between individual and collective labour law and explain the interaction between the employee and employer.

• The Individual Contract of Employment and Other Related Contracts.

• Duties of Employers