LABOUR LAW

LABOUR LAW
LLAW7321
Bachelor of Laws – LLB
• Thato Lentsoe
• Email: [email protected]
• Lecture hours: Full-time
• Study Guide
• Prescribed textbook: Collier, D & Fergus, E (Eds)
Cohen, T. Du Plessis, M. Godfrey, S. Le Roux, R. &
Singlee, S. Labour Law in South Africa: Context and
Principles (2019) Oxford University Press: Cape Town.
COURSE OVERVIEW
UNIT 1: Introduction to Labour Law

UNIT 2: The Common Law Contract of Employment

UNIT 3: Basic Conditions of Employment Act 75 of 1997 (BCEA)

UNIT 4: Employment Equity Act 55 of 1998 (EEA)

UNIT 5: Unfair Labour Practices (ULPs) and dismissals

UNIT 6: Social Security Legislation - UIA, COIDA and OHSA

UNIT 7: Collective Bargaining

UNIT 8: Strikes, lock-outs and picketing

UNIT 1: Introduction
to Labour Law
 ANNOUNCEMENTS

• Test 1 – SEE PAS

• Test 2 – SEE PAS
• Exam – PAS

• Assignment – SEE PAS

• Test

• Full-time

• YOU WILL NOT BE SUCCESSFUL ON THIS MODULE BY USING SLIDES

ONLY.
MEYIWA
TRIAL
UNDERWAY
Labour
Law
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO1: Distinguish between individual and collective labour law;

• LO2: Give an exposition of the main sources of labour law;
• LO3: Discuss the varied application of labour law;
• LO4: Explain how the Bill of Rights affects the employment
relationship in so far as social legislation having been passed
to give effect to Section 23C.
• L05: Explain the purpose, objectives, application,
interpretation of the LRA.
• L06: Explain how the CCMA functions as a quasi-judicial,
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO1: Distinguish between individual and collective labour law;

• Labour law is concerned with the unequal / uneven bargaining power
between E and e.
• Otto-Kahn Freund - the father of labour law.
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO2: Give an exposition of the main sources of labour law;

• Labour Law is concerned with rights & obligations between parties to an
employment relationship.
• E and e
• Also concerned with sources:
 Constitution – supreme law (s 2)
- s 23(1).
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO2: Give an exposition of the main sources of labour law;

• E and e – individual labour law & collective labour law.
 Legislation
- Protected Disclosures Act
- Occupational Health and Safety Act
- COIDA
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO2: Give an exposition of the main sources of labour law;

• E and e – individual labour law & collective labour law.
 Common-law
International law – international standards
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO2: Give an exposition of the main sources of labour law;

International law – international standards
o Convention on Freedom of Association and Protection of the
Right to Organise
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO3: Discuss the varied application of labour law;

• Labour law only applies to the existing employment relationship
(employer-employee relationship).
• Definition of an “employee” as appears in the legislation.
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO3: Discuss the varied application of labour law;

• COIDA?
• ODIMWA
• UIA
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO3: Discuss the varied application of labour law;

• Most of these legislative provisions only cover “employees” and
excludes “independent contractors”.
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• LO4: Explain how the Bill of Rights affects the employment

relationship in so far as social legislation having been passed to give
effect to Section 23C.
• Most of these legislative provisions only cover “employees” and
 UNIT 1: Introduction to Labour Law
Theme 1: Introductory concepts

• L05: Explain the purpose, objectives, application, interpretation of

the LRA
• LRA is the primary statute for labour related matters.
• AIM: economic development, social justice, labour peace, and
democratisation on the workplace.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L05: Explain the purpose, objectives, application, interpretation of the LRA

• Past apartheid regime consequences.
• Pressure on the economy and labour market by globalisation.
• Required to extend & improve protection for workers
• Drafters of the LRA had to look on the past (redress) + the future (social justice & economic
development).
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L05: Explain the purpose, objectives, application, interpretation of the LRA

• e in essential services may not strike
• Workplace forums
• LRA regulates collective relations – employers organisations, employers,
employees, and trade unions
• Codifies existing case law on unfair labour practices.
• LRA extends protection to e from unfair dismissals, AUD, and unfair labour
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L05: Explain the purpose, objectives, application, interpretation of the LRA

• INSTITUTIONS UNDER THE LRA
• Commission for Conciliation, Mediation and Arbitration – frontline of dispute resolution /
starting point
• Cheap & expeditors
• Conciliation – arbitration
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L05: Explain the purpose, objectives, application, interpretation of the LRA

INSTITUTIONS UNDER THE LRA
• Labour Appeal Court
• LAC has same status as SCA
• Hear appeals from the LC decision
• Supreme Court of Appeal
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L06: Explain how the CCMA functions as a quasi-judicial, statutory

body.
• LRA establishes the CCMA as an INDEPENDENT tribunal.
• FIRST PROCESS: conciliation.
• IF FAILS: arbitration
• accessible, informal, efficiency
• 21 regional offices.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework
• L06: Explain how the CCMA functions as a quasi-judicial, statutory body.
• LRA establishes the CCMA as an INDEPENDENT tribunal.
• FIRST PROCESS: conciliation.
• IF FAILS: arbitration
• accessible, informal, efficiency
• 21 regional offices.

• JURISDICTION
• Authority to preside & resolve disputes is confined by LRA, EEA & BCEA (to a
lesser extent).
• CCMA lack jurisdiction if:
- failure to comply with timeframes
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework
• L06: Explain how the CCMA functions as a quasi-judicial, statutory body.
• JURISDICTION
• LRA / CCMA does not have extraterritorial jurisdiction (outside SA)
• SA e – CCMA will have no jurisdiction (Astral Operations v Parry).
• Jurisdiction depends on the operations where e works.
• Where undertaking is in SA, jurisdiction is established.
• If not, J will be denied (SA Tourism v Monare).
• TES is complicated – calls for flexibility.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework
• L06: Explain how the CCMA functions as a quasi-judicial, statutory body.
• FUNCTIONS OF THE CCMA
• Conciliation
• Third party (commissioner)
• Either together, separately, or both.
• Facilitate a settlement agreement.
• Flexible / informal – accessible, confidential
• Take forms:
- mediation
- fact-finding
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework
• L06: Explain how the CCMA functions as a quasi-judicial, statutory
body.
• FUNCTIONS OF THE CCMA
• Conciliation
• 30 days to resolve dispute in conciliation.
• Certificate of outcome is issued.
•
https://ccma.org.za/wp-content/uploads/2022/02/LRA-7.12_Certificate-of-Outcome-1.pdf

• If UNRESOLVED?
- See the certificate of outcome!
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L06: Explain how the CCMA functions as a quasi-judicial, statutory

body.
• FUNCTIONS OF THE CCMA
• Conciliation
• Timeframes?
- 30 days > dismissals
- 90 days > unfair labour practices
- 6 months > matters under EEA
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework
• L06: Explain how the CCMA functions as a quasi-judicial, statutory body.
• FUNCTIONS OF THE CCMA
• Arbitration
• impartial third party (commissioner / arbitrator).
• Authorised to make decisions in favour of either party.
• TIMEFRAMES?
- 90 days > unfair dismissals (misconduct / incapacity) from issuing of conciliation
certificate of outcome.
• fairly & quickly.
• Minimum legal formalities.
• Lead evidence, cross-examination, witnesses etc.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L06: Explain how the CCMA functions as a quasi-judicial, statutory

body.
• FUNCTIONS OF THE CCMA
• Arbitration
• Commissioner has 14 days to issue award.
• Arbitration awards = final and binding.
• Cannot be appealed.
• Review application.
• Rescission – s 144 of LRA.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework
• L06: Explain how the CCMA functions as a quasi-judicial, statutory body.
• CONDONATION
• Strict time periods for referrals.
• If time periods are NOT met = condonation.
• CCMA Rules:
- degree of lateness;
- reason;
- prospects of success;
- prejudice to other party if C is granted
- any relevant factor.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L06: Explain how the CCMA functions as a quasi-judicial, statutory

body.
• CON-ARB
• Arbitration that follows immediately after conciliation.,
• Usually one day.
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L06: Explain how the CCMA functions as a quasi-judicial, statutory

body.
• NON-ATTENDANCE AT CONCILIATION & ARBITRATION
• Commissioner discretion to:
• - continue with proceedings
• - adjourn / postpone
• - conclude proceedings – issue certificate of non-resolution
• RULE 13
 UNIT 1: Introduction to Labour Law
Theme 2: The Labour legislation framework

• L06: Explain how the CCMA functions as a quasi-judicial, statutory body.

• INQUIRY BY ARBITRATOR
• Rather than disciplinary of misconduct, E may approach CCMA themselves.
• S 188
• INQUIRY BY ARBITRATOR
• ?
SHORT BREAK

FOOD OF THOUGH –

You take a sick leave. On the same day (during

working hours), you go to Virgin Active for a gym
session. One of your colleague (on annual leave)
sees you at the gym and reports the matter to the
HR. Although you maintain that you were still
NOT feeling well, the company dismisses you.

Does this amount to a fair or unfair dismissal?

SARS vs CCMA
UNIT 6:Constitutionalism, the Constitution & Human Rights
Theme 2:

END