LLW2601 Individual Labour Law Notes 2014 PDF
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2014
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These are extensive notes for LLW2601 Individual Labour Law from the 2014. The notes cover chapters 1 through 8 of the prescribed textbook. The content focuses on South African labor laws. The notes also cover Labour Law rules, and employment relationships.
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LLW2601 Individual Labour Law 2014 Extensive notes regarding chapters 1, 2, 3, 4, 5, 6, 8 of the Labour Law prescribed text book, created for LLW2601 semester 2, 2014. Table of Cont...
LLW2601 Individual Labour Law 2014 Extensive notes regarding chapters 1, 2, 3, 4, 5, 6, 8 of the Labour Law prescribed text book, created for LLW2601 semester 2, 2014. Table of Contents Table of Contents.............................................................................................................................................. 2 Chapter 1: Introduction to Labour Law............................................................................................................. 6 Atypical work:................................................................................................................................................ 6 Tripartite making of laws............................................................................................................................... 6 Legislative scope of labour laws.................................................................................................................... 6 Labour law rules are contained in legislation as well as:.......................................................................... 6 Three main labour acts:............................................................................................................................. 6 Above acts are supplemented by Codes of Good Practice,....................................................................... 6 Other Acts that impact on employment relationship:.............................................................................. 7 At start of employment relationship:............................................................................................................ 7 Dispute resolution............................................................................................................................................. 7 Study Unit 1 / Chapters 2, 3 Employee.............................................................................................................. 8 Chapter 2: Exclusive protection for employees in terms of legislation............................................................. 8 1. Who is an employee.............................................................................................................................. 8 Independent contractor:.................................................................................................................................. 8 Employee:.......................................................................................................................................................... 8 2. Guidelines to distinguish between employees and independent contactors....................................... 9 3. Categories of Employees..................................................................................................................... 11 4. Unprotected workers.......................................................................................................................... 11 4.1 Illegal workers.............................................................................................................................. 11 Unlawful contract:.......................................................................................................................................... 11 Rights of illegal workers:................................................................................................................................ 11 4.2 Statutory exclusions of workers.................................................................................................. 12 5. Who is an employer............................................................................................................................. 13 Chapter 3: Common law and the contract of employment............................................................................ 13 1. Introduction......................................................................................................................................... 13 2. Duties of employer and employee...................................................................................................... 13 2.1 Duties of employers..................................................................................................................... 13 2.2 Duties of employees.................................................................................................................... 14 3. Doctrine of Vicarious Liability.............................................................................................................. 15 4. Impact of contract of employment on employment relationship....................................................... 15 4.1 Introduction................................................................................................................................. 15 4.2 General contract principles......................................................................................................... 16 4.3 Remedies for breach of contract................................................................................................. 17 4.4 Restraint of trade......................................................................................................................... 17 Page 2 of 64 LLW2601 2014 4.5 Changes to contractual terms and conditions of employment................................................... 18 5. Customs and practices in the workplace............................................................................................. 18 Africanisation and Labour Law........................................................................................................................ 18 Study unit 2/ Chapter 4: Basic conditions of employment act........................................................................ 19 1. Introduction......................................................................................................................................... 19 2. Scope of application............................................................................................................................ 20 3. Minimum conditions of employment.................................................................................................. 20 3.1 Working time............................................................................................................................... 20 BCEA Chapter 2............................................................................................................................................... 20 3.2 Leave............................................................................................................................................ 22 BCEA Chapter 3............................................................................................................................................... 22 3.3 Other matters.............................................................................................................................. 23 4. Children and forced labour.................................................................................................................. 24 5. Enforcement of BCEA.......................................................................................................................... 25 5.1 Courts.......................................................................................................................................... 25 5.2 Inspectors.................................................................................................................................... 25 6. Variation of basic conditions............................................................................................................... 25 6.1 Collective agreement................................................................................................................... 26 6.2 Ministerial determination............................................................................................................ 26 6.3 Sectoral determination................................................................................................................ 26 Africanisation and Labour Law........................................................................................................................ 27 Study Unit 3, Chapter 5: Employment Equity Act........................................................................................... 28 1. Introduction......................................................................................................................................... 28 2. Basic Terminology................................................................................................................................ 29 2.1 Formal and Substantive equality................................................................................................. 29 2.2 Differentiation and Discrimination.............................................................................................. 29 2.3 Direct and Indirect discrimination............................................................................................... 29 2.4 Specified and Unspecified grounds of discrimination................................................................. 30 3. Purposes of the EEA............................................................................................................................. 30 Purpose of EEA:............................................................................................................................................... 31 4. First purpose; prohibition against unfair discrimination..................................................................... 31 4.1 Establishing unfair discrimination............................................................................................... 31 4.2 Justification grounds for discrimination...................................................................................... 32 4.3 Other specific forms of discrimination prohibited...................................................................... 33 4.4 Equal pay for equal work or work of equal value........................................................................ 36 Page 3 of 64 LLW2601 2014 4.5 Resolution of unfair discrimination disputes............................................................................... 37 5. Second purpose of EEA: Affirmative Action........................................................................................ 38 5.1 Outline of Affirmative action....................................................................................................... 38 5.2 Contents of affirmative action..................................................................................................... 38 5.3 Designated employers................................................................................................................. 39 5.4 Beneficiaries of affirmative action............................................................................................... 40 5.5 Monitoring and enforcing of affirmative action.......................................................................... 41 Africanisation and Labour Law........................................................................................................................ 41 Study Unit 4; Chapter 6: Unfair Labour Practices............................................................................................ 42 1. Introduction......................................................................................................................................... 42 2. LRA....................................................................................................................................................... 42 3. Listed unfair labour practices.............................................................................................................. 43 3.1 Promotion.................................................................................................................................... 43 3.2 Demotion..................................................................................................................................... 43 3.3 Probation..................................................................................................................................... 44 3.4 Training........................................................................................................................................ 44 3.5 Provision of benefits.................................................................................................................... 45 3.6 Suspension or any other disciplinary action short of dismissal................................................... 45 3.7 Refusal to reinstate or re-employ an employee in terms of any agreement.............................. 46 3.8 Employee suffering an occupational detriment on account of protected disclosure (whistle blowing)................................................................................................................................................... 46 4. Resolution of unfair labour practice disputes..................................................................................... 47 Africanisation and Labour Law........................................................................................................................ 47 Study Unit 5, Chapter 8: Termination of the contract of employment........................................................... 48 1. Dismissal in general............................................................................................................................. 48 2. Definition of dismissal......................................................................................................................... 48 2.1 Termination of contract by employer, with / without notice..................................................... 48 2.2 Refusal / failure by the employer to renew a fixed-term contract............................................. 49 2.3 Refusal to allow an employee to resume work after maternity leave........................................ 49 2.4 Selective re-employment............................................................................................................ 49 2.5 Constructive dismissal................................................................................................................. 49 2.6 Employee being provided with less favourable terms after the transfer of a business.............. 50 3. Automatically unfair dismissals........................................................................................................... 50 3.1 Concept of automatically unfair dismissals................................................................................. 50 3.2 Employer acts contrary to an employee’s right to freedom of association................................ 51 3.3 Participation in / supporting a protected strike or protest action.............................................. 51 Page 4 of 64 LLW2601 2014 3.4 Refusal to do the work of employees who are on a protected strike......................................... 51 3.5 Compelling an employee to accept a demand made by the employer...................................... 51 3.6 Exercising rights against the employer........................................................................................ 51 3.7 Pregnancy, intended pregnancy or any reason related to pregnancy........................................ 51 3.8 Unfair discrimination................................................................................................................... 52 3.9 Transfer of a business.................................................................................................................. 52 3.10 Protected disclosures.................................................................................................................. 52 3.11 Dispute resolution for an automatically unfair dismissal............................................................ 52 4. Fair dismissals in terms of the LRA...................................................................................................... 53 4.1 Dismissal for misconduct............................................................................................................. 53 4.2 Dismissal for incapacity............................................................................................................... 56 4.3 Dismissal for operational requirements...................................................................................... 58 5. Other aspects of dispute resolution.................................................................................................... 62 5.1 Conciliation.................................................................................................................................. 62 5.2 Arbitration................................................................................................................................... 62 5.3 Reviews and appeals................................................................................................................... 63 5.4 Remedies..................................................................................................................................... 63 5.5 Common-law dispute resolution route....................................................................................... 63 6. Other ways of terminating the employment contract........................................................................ 63 6.1 Resignation by the employee...................................................................................................... 63 6.2 Termination on completion of an agreed period or task............................................................ 63 6.3 Termination by mutual agreement............................................................................................. 64 6.4 Termination on grounds of impossibility of performance.......................................................... 64 6.5 Termination as result of insolvency of employer........................................................................ 64 6.6 Termination as result of retirement............................................................................................ 64 Page 5 of 64 LLW2601 2014 Chapter 1: Introduction to Labour Law Atypical work: - different from full-time employment - includes o part-time work o temporary employees o casual employees o people working from home Tripartite making of laws Role of state as employers of public servants must not be confused with its role as legislator and enforcer of rights. Interaction between State, organised labour and organised business is crucial to ensure that all role players are involved in shaping policy matters and legislation impacting on the employment relationship. NEDLAC’s work is conducted in four chambers that discuss different aspects of social and economic policy: - Labour Market Chamber - Trade and Industry Chamber - Development Chamber - Public Finance and Monetary Policy Chamber NEDLAC Aims: - Make economic decision making more inclusive - Promote the goals of economic growth and social equity Legislative scope of labour laws Labour law rules are contained in legislation as well as: - Constitution - Common law - Case law - ILO conventions Three main labour acts: - Labour Relations Act (LRA) - Basic Conditions of Employment Act (BCEA) - Employment Equity Act (EEA) Above acts are supplemented by Codes of Good Practice, - Do not contain binding rules - But are used by employers and employees as guidelines in practice o Code of Good Practice: Dismissal o Code of Good Practice on Dismissal Based on Operational Requirements o Code of Good Practice on Picketing o Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace o Code of Good Practice: Key Aspects of HIV/AIDS and Employment o Code of Good Practice: Key Aspects on the Employment of People with Disabilities o Code of Good Practice: Preparation, Implementation and Monitoring Employment Equity Plans o Code of Good Practice: Who is an Employee Page 6 of 64 LLW2601 2014 Other Acts that impact on employment relationship: - Occupational Health and Safety Act (OHSA) - Mine Health and Safety Act (MHSA) - Compensation for Occupational Injuries and Diseases Act (COIDA) - Occupational Diseases in Mines and Works Act (ODIMWA) - Unemployment Insurance Act (UIA) - Unemployment Insurance Contribution Act (UICA) - Skills Development Act (SDA) - Skills Development Levies Act (SDLA) At start of employment relationship: - Determine if a person qualifies as an employee To be eligible for protection in terms of labour legislation - Protection relates to o minimum terms and conditions of employment, o unfair labour practices, o unfair discrimination o unfair dismissals o participation in industrial action Once an employment contract has been finalised and an employee has commenced work, both employee and employer have to act as agreed in terms of the contract of employment, subject to the BCEA and rights and duties under common law. Dispute resolution - Institutions that specialise: o Commission for Conciliation Mediation and Arbitration (CCMA) o Labour Court o Labour Appeal Court - Aim: o Ensure accessible and fast dispute resolution Page 7 of 64 LLW2601 2014 Study Unit 1 / Chapters 2, 3 Employee Chapter 2: Exclusive protection for employees in terms of legislation 1. Who is an employee - Primary aim of LRA (1) o promote sound relations between employers and employees in workplace - Workers who are not employees fall outside of scope of LRA and are not entitled to protection against unfair dismissal. Independent contractor: - Contracted to o perform a specified task or to o produce a specific result Employee: - Protected by labour law - Appointed to render personal services in terms of a job description - LRA 213, BCEA 1, EEA 1, SDA 1: o (a) Any person, excluding independent contractor, who works for another person or of the State and who receives, or is entitled to receive, any remuneration and; Includes employees in private sector and public sector Includes domestic and farm workers BCEA 1: Domestic worker is an employee who performs domestic work in the home of his/her employer and includes (a) gardener (b) person employed by household as driver of a motor vehicle (c) person who takes care of children, the aged, the sick, the frail or the disabled. BCEA 1: Farm worker means an employee who is employed mainly in or in connection with farming activities and includes an employee who wholly or mainly performs domestic work in a home on a farm Incorporates the common-law contract of service (location conduction operarum) Excludes the contract work (location conduction operis) which relates to an independent contractor o (b) Any other person who in any manner assists in carrying on or conducing the business of an employer Includes any person who in any manner assists in carrying on or conducting the business of an employer. Can include various categories of workers: Permanent employees, Temporary employees Casual workers Contract workers Part-time employees Self-employed people Seasonal workers Page 8 of 64 LLW2601 2014 2. Guidelines to distinguish between employees and independent contactors - Courts have developed three tests: o Control test Looks at the control over the work the person does, the manner in which the work must be done and when the work must be done o Organisation test Looks at whether the person is part and parcel of the business. Person’s work is integrated into the business of the employer and is not just an accessory to the business o Dominant person test Favoured by the courts Considers the employment relationship as a whole, rather than concentrating on only one factor - Rebuttable presumption as to who is regarded as an employee: o As soon as one of the factors, in LRA 200A or BCEA 83A, is found to exist in the relationship between the two parties, there is presumed to be an employment relationship. 200A: until the contrary is proved, a person who works for, or renders services to, any other person is presumed to be an employee, if any one or more of the following factors are present: (a) manner in which the person works is subject to the control or direction of another person (b) person’s hours of work are subject to the control or direction of another person (c) the case of a person who works for an organisation, the person forms part of that organisation (d) person has worked for that other person for an average of at least 40 hours per month over the last three months (e) person is economically dependent on the other person for whom he/she works or renders services (f) person is provided with tools of trade or work equipment by the other person (g) person only works for or renders services to one person 200A and 83A read in conjunction with Code: Who is an Employee? Incorporates the three tests Goes further to provide guidance for possible interpretation and application of these tests in modern contest o Control: Includes right to determine what work the employee will do, in what manner and what working hours will be May be a term of the contract, but even where it is not specified in the contract, it does not necessarily mean there is not a contract of employment o Organisation test: The traditional workplace no longer exists and employee does not need to work from employer’s premises to indicate that there is an employment relationship The tools of trade provided by the employer should not be interpreted narrowly and may range from a modem or cell phone package to a set of screw drivers Page 9 of 64 LLW2601 2014 o Dominant impression test: Code confirms the importance of this test States there is no single decisive factor to determine existence or absence of an employment relationship, thus all factors should be taken into account when determining the type of relationship Table as part of the application of the dominant impression test: Employee Independent contractor Object of contract: Object of contract: - Render personal services - Perform a specified work or - Produce a specified result Must perform services personally May usually perform through others Employer may choose when to make use of services Independent contractor must perform work within of employee period fixed by contract Contract terminates on death of employee Contract does not necessarily terminate on death of independent contractor Contract terminates on expiry of period of service in Contract terminates on completion of work or contract production of specified result o The other party then has the opportunity to show, on a balance of probabilities, that no employment relationship exists. o Presumptions will not apply to persons earning more than the amount determined by the minister in terms of BCEA 83A(2) and to a work arrangement involving persons who earn amounts equal to or below the amount determined by the minster BCEA 83A(3) - New definitions o Contract of employment LRAB: Common law contract of employment or any other agreement or arrangement under which a person agrees to work for an employer but excluding a contract of work as an independent contractor Includes any arrangement by which one party (excluding independent contractor) agrees to do work for another Accommodates categories of vulnerable workers. o Independent contractor LRAB: A person who works for or supplies services to a client or customer as part of the person’s business undertaking or professional practice. BCEAB: Specific about the nature of the service that the independent contractor provides and will provide more clary on the nature of an independent contractor Page 10 of 64 LLW2601 2014 3. Categories of Employees Category Description Permanent employee - Person employed for an indefinite period Temporary / contract / - Person employed for a specified period or for a specific project fixed-term employee Casual employee - Person works for same employer on not more than three days per week - Person’s employment can either be temporary or permanent Part-time employee - Person works for the employer only at certain times of the day, e.g. mornings / night - Person works on certain days of the week, mostly limited to three days per week - Person’s employment can either be temporary or permanent - Terms: Temporary employees, casual works, part-time employees and contract workers often used interchangeably o These workers known as temporary employees / atypical workers. o More than ordinary employees o Work fewer hours compared to permanent employees o Often excluded from additional employment benefits e.g. medical aid & pension funds - Definition employee does not differentiate between different categories of employees. - All categories are included in the definition of an employee and protected under labour laws 4. Unprotected workers 4.1 Illegal workers Unlawful contract: - In terms of common law is void (voidable) - In terms of criminal law is punishable by court of law - Distinction in protection ito Constitution or LRA for illegal workers: o Employment terminated: Employment Contract valid Worker protected by LRA against unfair dismissal Employment Contract not valid Worker not protected under LRA, but under Constitution: Section 23: grants ‘everyone’ the right to fair labour practices Section 10; grants ‘everyone’ the right to dignity Rights of illegal workers: - People working illegally, i.e. against the law: o Have a right to fair labour practices as a result of the employment relationship o Not protected against unfair dismissal because there cannot be a valid contract of employment o Claim in terms of section 23 of Constitution - Illegal foreigner o Immigration Act prohibits employment of an illegal foreigner Aim: deter employers from intentionally hiring workers not authorised to work in terms of the Act o Any employer who knowingly employs an illegal foreigner or a foreigner in contravention of the Act commits an offence Page 11 of 64 LLW2601 2014 o Employer who employs an illegal foreigner may not refuse to pay that worker on the basis that the worker is an illegal foreigner. o I.F. may still be able to enforce his/her contractual rights against the employer. o I.F. may still be protected by the Constitution, which guarantees everyone’s right to dignity everyone the right to fair labour practices - Constitution S23(1) provides broader protection than labour laws. o If a worker is in a work relationship similar to an employment relationship, he can enjoy the protection to the right to fair labour practices o One of the purposes of constitutionally entrenched labour rights is to protect vulnerable workers =- illegal foreigners or prostitutes o The infringement of a person’s labour rights can also constitute an infringement on the right to dignity 4.2 Statutory exclusions of workers - LRA (2) Excludes members of: o National Defence Force o National Intelligence Agency o South African Secret Service o South African National Academy of Intelligence o Comsec - BCEA (3) Excludes: o Members listed above, as well as: Unpaid volunteers working for charitable organisations / organisations with public purpose (3(1)(b)) People employed on vessels at sea (MSA57/1951) o BUT BCEA does apply to persons undergoing vocational training, except to extent that any term / condition of their employment is regulated by provisions of any other law (3(2)) Page 12 of 64 LLW2601 2014 5. Who is an employer - Not defined in SA labour legislation - But can be defined in relation to definition of ‘employee’ as: o Any person / body that employs any person in exchange for remuneration o Any person who permits any person to assist him in conducting his business. - This definition covers o Person who employs the other under employment contract formal employment o Person who allows another person to assist him conducting his business Include labour brokers temporary employment services TES (labour broker) the employer of a person whose services have been obtained for / provided to, the client for reward. (LRA 198(1), 198(2) & BCEA 82(1)) Triangular relationship between employer, employee, client Using TES: Employer limits risks Avoid responsibilities such as providing employees with benefits and avoiding administrative tasks such as deducting unemployment contributions TES responsible for liabilities & duties that go with employer-employee relationship. TES ad client can be jointly and severally liable iro contraventions of collective agreements concluded at bargaining councils, BCEA, arbitration awards. (LRA 198(4); BCEA 82(3)) - Trade unions generally against use of labour brokers because: o It creates difficulties in identifying who the real employer is and o In the process workers may be exploited. - Other concerns about labour brokers: o Worker gets reduced salary: TES deducts feeds from workers’ salaries o Protection against unfair dismissal and unfair labour practices is not shared between TES and Client. Chapter 3: Common law and the contract of employment 1. Introduction - Common law relates to basic rights and duties of employers and employees. - These rights are relevant even if parties do not agree or specifically include it in the contract of employment. 2. Duties of employer and employee - Common-law duties are very broad - Indirectly covered by legislation, remain valid and important 2.1 Duties of employers 2.1.1 Remuneration o Primary duty to pay employee o If employee does not work, no pay is due o Common-law duty applies o BCEA provides for paid leave in certain circumstances o If no leave applies no work no pay. Page 13 of 64 LLW2601 2014 2.1.2 Provide work o Employer generally not required to provide work except in certain special instances e.g. Salary commission-based, dependent on actual work done Success dependent on performance of certain duties on regular basis, e.g. actor 2.1.3 Provide safe working conditions o Depending on nature of work / workplace, employer may install safety equipment and exercise proper supervision o Might include protection against any form of harassment (physical / psychological) ito EEA by employer / co-employees o duty to contribute to Compensation Fund ito COIDA, to ensure employee injured on duty will be compensated 2.1.4 Deal fairly with employee o Constitutional right to fair labour practices section 23 Labour relations Everyone has the right to fair labour practices. Every worker has the right- o to form and join a trade union; o to participate in the activities and programmes of a trade union; and o to strike. Every employer has the right- o to form and join an employers' organisation; and o to participate in the activities and programmes of an employers' organisation. Every trade union and every employers' organisation has the right- o to determine its own administration, programmes and activities; o to organise; and o to form and join a federation. Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36 (1). National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter the limitation must comply with section 36 (1). o LRA protects employees against unfair treatment during employment against unfair dismissal o Includes other common-law duties such as Receive employee into service Comply with other statutory obligations 2.2 Duties of employees 2.2.1 Render services to employer o Primary duty o Employee’s labour potential placed at disposal of employer 2.2.2 Work competently and diligently o When entered into employment contract o Employee guarantees he is capable of doing the work o Work will be performed competently and diligently. Page 14 of 64 LLW2601 2014 2.2.3 Obey lawful and reasonable instructions o Employee under control & authority of employer o Non-compliance constitutes serious insubordination & breach of contract Except if employee refuses orders outside scope of employment contract 2.2.4 Serve employer’s interests and act in good faith –fiduciary duty o Employment relationship built on trust & confidence implicit term of employment contract o Includes duty not to work against employers interests not to compete with employer devote hours of work to promoting employers business act honestly 3. Doctrine of Vicarious Liability - Employer is liable for the unlawful / delictual acts of an employee performed during the course of business. - Operation regulated by common law, not by employment legislation. - Employer must compensate those who suffer injury a result of wrongful conduct of employee. - Protects third parties. - Depending on circumstances, employer can discipline employee for misconduct and claim repayment in this regard. (BCEA 34) - Three requirements must be met for employer to be held liable for employee’s wrongful conduct: o Must be contract of employment o Employee must have acted in course and scope of employment o Employee must have committed a delict Delict: negligent / intentional unlawful action / omission by an employee causing a third party to suffer damages or personal injury. - Problem: Determine if employee acted in course and scope of employment. - Each case judged on own merits. - Fact that act of employee expressly forbidden by employer / constituted criminal act, not always absolve employer from being held vicariously liable. 4. Impact of contract of employment on employment relationship 4.1 Introduction - Consider contents of contract when determining the impact of contract of employment on employment relationship. - Contract Terms & conditions of employment can be changed during course of employment. - Important to know when that would be possible. Page 15 of 64 LLW2601 2014 4.2 General contract principles - Contract of employment must o Meet all requirements that the law prescribes for the conclusion of a valid contract. o Is regulated by common law. - In cases where specific labour mater is not covered by LRA / other legislation, common law will apply. - Valid contract of employment: Parties to contract must have satisfied all the common law requirements for the conclusion of a valid contract o Parties must agree (BCEA 48) o Have capacity to enter into contract o Agreement must be legally possible o Performance under agreement must be physically possible o If any formalities are prescribed for the formation of that contract, the formalities must be satisfied (Attorneys Act 53/1979 S5(3)) - Contract does not have to be in writing o Desired for sake of clarity and certainty o Valid if in writing or orally o Terms can be express or tacit (understood or meant without being stated) - BCEA (29(1)) requires employer to provide employee with information in writing such as: o Full name & address of employer o Name and occupation of employee o Place of work o Date of employment commencement o Employee’s ordinary days & hours of work o Wage o Rate of pay for overtime work o Other cash payments to which employee is entitled o Any payment in kind and value thereof o Frequency of remuneration o Deductions to be made from remuneration o Leave to which employee is entitled o Notice period required to terminate employment o Period of employment with previous employer that counts towards employee’s period of employment o List of any other documents that form part of contract of employment. - Employer must keep these written particulars for 3 years after termination of employment contract (29(4)) - Employer required to display statement of employees’ rights in terms of BCEA in official languages in workplace in prescribed form. (30 / 28) Page 16 of 64 LLW2601 2014 4.3 Remedies for breach of contract - Breach of contract: if parties do not perform ito agreement. - Innocent party can: o Accept breach and cancel contract o Compel defaulting party to perform (specific performance) o Claim damages - LRA largely replaced process of breach of contract disputes by contract law. o Breach by employer would amount to unfair labour practice unfair discrimination unfair dismissal o Breach by employee amount to Misconduct - Employee claim breach of contract: o High Court has jurisdiction o Only common-law remedies are available o Termination deals with lawfulness, not fairness o Employee can still choose to claim common-law damages based on breach of contract rather than claim unfair dismissal ito LRA. 4.4 Restraint of trade - Normally included in employment contracts to protect interests of employer o E.g. against unfair competition from employees during & after employment ended - Purpose: Protect employer’s o trade secrets, o goodwill and o business connections. - Prevents employee competing with employer within defined area for prescribed period. - Restraint of trade is enforceable if court can balance the following: o Public interest: parties comply with contractual obligations even if they’re unreasonable or unfair. o OR o Right of all persons to be permitted to engage in commerce or professions of their own choice. - Example p 36: restraint of trade valid and enforceable unless contrary to public policy, which will deem it unreasonable. o Reasonableness determined with reference to interests of employer and employee, public policy & surrounding circumstances. o Questions for consideration: Interest deserving protection at termination of agreement Is that Interest being prejudiced If so, how does that interest weigh up against interests of other party not to work Is another facet of public policy apart form relationship between parties, which requires restraint to be enforced or disallowed Is restraint wider than necessary to protect the protectable interest. Page 17 of 64 LLW2601 2014 4.5 Changes to contractual terms and conditions of employment - Employer and employee bound by other statutory provisions and applicable collective agreements. - Employer may not unilaterally change terms and conditions of employment. - T&C only be changed in following ways: o Agreement between employer and employees / in line with method prescribed in contract of employment o Collective agreement between employer and trade union o Operation of law, e.g. BCEA o Sectoral determination issued by Minister (BCEA 50) - Contract of employment provides basis for individual employment relationship. - Labour Laws may impact on this. 5. Customs and practices in the workplace - Customs and practices also have important impact on employment relationship. - These related to o Afternoon off o Social visit to historical site o Christmas party - Employer does not have to obtain agreement from employees to implement or change these. Africanisation and Labour Law - SA is one of major receiving countries of migrants in Southern Africa. - Migrant workers: o Vulnerable o Often without documentation o Susceptible to exploitation o Often excluded from access to benefits: Unemployment insurance Workmen’s compensation - Not all migrant workers are illegal. o Illegal o Legal with temporary work permits o Permanent residents o Asylum seekers - Case Kylie v CCMA & Others Labour Appeal court: o Even in cases where employment contract may not be valid, o Vulnerable employee may have right to fair labour practices ito Constitution. Since employment contract with illegal migrant is not valid, worker still has right to fair labour practices. If such worker is unfairly dismissed, worker may have remedy ito the Constitution. Page 18 of 64 LLW2601 2014 Study unit 2/ Chapter 4: Basic conditions of employment act 1. Introduction - Acts that impact in the employment relationship: o BCEA: minimum terms and conditions of employment o EEA: prohibits discrimination & promotes affirmative action o LRA: unfair labour practices o Social security legislation: provides employees with entitlements to, e.g. unemployment insurance & involves contributions by employers (BCEA 34A) o SDA & SDLA: Regulate skills and training of employees & involve contributions by employers - BCEA: o Significant impact on employment contract o Lays down minimum terms and conditions of employment Can be included in sectoral and ministerial determinations and collective agreements that regulate wages e.g. BCEA must be read in conjunction with said determinations and the collective agreement to determine employee’s terms and conditions. - Employers ad employees may deviate from minimum terms and conditions to improve them, but not decrease them. - Basic condition of employment in BCEA constitutes term of any contract of employment, except where o Any other law provides a term more favourable to an employee o The contract provides a more favourable term to the employee (BCEA 4) o The basic condition has been replaced, varied or excluded in terms of the act. Page 19 of 64 LLW2601 2014 2. Scope of application - BCEA gives effect to & regulates constitutional right to fair labour practices (Constitution 23(1)) by: o Establishes and enforces basic conditions of employment o Regulates variation of such conditions by way of various mechanisms and with a framework of ‘regulated flexibility’. - Employees excluded from BCEA: o Members of National Intelligence Agency o South African Secret Service o South African National Academy of Intelligence o Unpaid volunteers working for charitable organisations o Directors and staff of Comsec o People undergoing vocational training except to extent that any term of their employment is regulated by provisions of any other law o People employed on vessels at sea o Independent contractors - Partial exclusions: Certain groups of people are excluded from certain chapters e.g. o Senior managerial employees excluded from chapter 2 (working time) o Employees who work for less than 24 hours a month, excluded from chapter 3 (leave) 3. Minimum conditions of employment 3.1 Working time BCEA Chapter 2 Regulation Additional comments Exclusion: - Senior managerial employees - Sales staff who travel to premises of customers and who regulate their own hours of work - Employees who work less than 24 hours a month for an employer - Employees who earn more than R172 000 per year (Section 6) Maximum A maximum of 45 hours a week. Employers must endeavour to reduce the working hours If the employee works 5 days a week or less, he or maximum ordinary hours to 40 hours a she may not work more than 9 hours a day. week and eight hours a day, through If the employee works 6 days or more a week, he collective bargaining and sectoral may not work more than 8 hours a day (these determinations. (9(3) and schedule 1) These hours may be extended by hours include an hour lunch break). agreement by up to 15 minutes a day, but no more than an hour per week, if employees serve members of the public. (9(2)) Lunch An employee is entitled to a meal interval of at least The meal interval can, by agreement, be one hour after five hours of continuous work. (14) reduced to 30 minutes, or be done away with if the employee works fewer than six hours per day Overtime - Maximum of 10 hours per week. An employee may work overtime only by - May be increased to a maximum of 15 hours a agreement. week by a collective agreement. (10) - An employee who works overtime has to be paid one-and-a-half times normal pay or have time-off. - An agreement to work overtime may not be for more than a total of 12 hours (ordinary hours plus overtime) on any Page 20 of 64 LLW2601 2014 particular day Sundays & - The employee has to be paid double the The same principle and payment scale apply public holidays normal rate of pay. (16) to work performed on public holidays. (18) - If the employee normally works on Sundays, the employee has to be paid one-and-half times the normal rate. Night work The employee must be given: - Night work is work that is performed after 18h00 and before 6h00 the next an allowance, or day. a reduction in hours of work, and - It can only be worked in terms of an be provided with transport between the agreement. employee's place of residence and the workplace. (17) Rest periods The BCEA makes provision for daily and An employee is entitled to: weekly rest periods a daily period of 12 hours between ending and recommencing work, and a weekly rest period of at least 36 consecutive hours, which generally, has to include Sundays. (15) Compressed The Act allows for averaging of working Parties may agree that the employee will work work week hours and overtime where hours are up to 12 hours in a day (including a meal calculated over a period of time. interval) without receiving overtime pay, This is to cater for peak periods in certain provided that the employee: sectors, for example, agriculture where does not work more than 45 ordinary hours during harvest time employees may in any week, agree to extended hours of overtime to more than 10 hours' overtime in any week, a maximum of 15 hours per week, but or which will no longer be necessary after on more than five days in any harvesting Ordinary hours and overtime can be averaged over a time. period of up to four months in terms of a collective agreement. (11 & 12) Page 21 of 64 LLW2601 2014 3.2 Leave BCEA Chapter 3 Regulation Additional comments Exclusion: - employees who work for less than 24 hours a month for an employer. Such workers will be entitled to the leave agreed upon between the employer and employee Vacation leave A minimum of 21 consecutive (calendar) days paid Employers and employees may agree on vacation leave (excluding public holidays) per year additional leave, either paid or unpaid for most employees. This amounts to 15 working days. (20) Maternity leave An employee is entitled to four consecutive months' The employee must notify the employer in maternity leave, which may commence at writing of the dates of the leave she - any time from four weeks before the expected intends to take. date of birth, - or on a date that a medical practitioner or This is unpaid leave. midwife certifies that it is necessary either for BCEA sets the minimum but the parties can the employee’s health or her unborn child (25) agree to more favourable terms, e.g. paid An employee may not work for six maternity leave. weeks after the birth of her child. If an employee miscarries in the third trimester of Employee who is not paid may claim from her pregnancy or has a still born child, she is entitled UIF. to six weeks' leave after the miscarriage or still birth Family Three days’ family responsibility leave every 12 Only for employees who have responsibility months worked (17). - worked for longer than four months, leave May be taken when: - work at least four days a week. - child is born or is sick Interpretation is strict. - death of No provision for death of in-laws. spouse / life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild, sibling Sick leave Six weeks’ paid sick leave, every three-year cycle A leave cycle is calculated as number of worked (22). days an employee would normally work If absent from work more than two consecutive days during a six-week cycle. or more than two occasions in an eight-week period, If employee works five days a week, he employer may request medical certificate (23). would work 30 days in six weeks, which Certificate may be issued by medical doctor or would entitle him to 30 days’ sick leave in person registered with professional council. three years. Page 22 of 64 LLW2601 2014 3.3 Other matters 3.3.1 Wages o No law stipulates minimum wages for employees. o Collective agreements concluded in bargaining councils and ministerial and sectoral determinations may establish minimum wages & employers & employees will be bound to contract ito these minimum standards or more favourably by agreement. o Paid in SA currency When Daily Weekly Fortnightly Monthly How Cash Cheque Direct deposit (32) o Employer must provide employee with information in writing regarding Period for which payment is made Amount of pay Amount and reason for deduction Calculation of pay in general (32, 33, 34, 34A, 35) 3.3.2 Notice periods o Contract of employment for indefinite period may be terminated by Employer or employee By giving notice of intention to terminate contract Notice must adhere to notice periods required ito contract of employment. o If contract does not make provision for notice period, BCEA provides minimum notice period (37) Employer and employee must comply: Contract of employment must be terminated in writing By way of a notice period of not less than: One week: employed six months or less Two weeks: employed more than six months, less than one year Four weeks: o employed one year or more o farm worker or domestic worker employed for more than six months. o Notice periods may generally not be shortened, but four week period may be reduced to two weeks by collective agreement. o BCEA allows employer to pay employee an amount equivalent to salary that employee would have earned during notice period, instead of requiring employee to work such a period (38) 3.3.3 Severance pay o IF employee is dismissed based on operational requirements of employer in terms of LRA section 189 (study unit 5) employer must pay employee severance pay equal to at least one week’s pay for each completed year of continuous service with that employer BCEA section 41 (4) employee who unreasonably refuses to accept an offer of alternative employment with that employer or any other employer, is not entitled to severance pay. Page 23 of 64 LLW2601 2014 3.3.4 Certificate of service o BCEA Section 42 o Employer must provide employee with certificate of service when employment comes to end. o Certificate may state: Employee’s full name Name & address of employer Description of council/sectoral employment standard by which employer’s business is covered Date of commencement and of termination of employment Job title or Job description Remuneration at time of termination o Reason for termination may be stated only at employee’s request. 4. Children and forced labour - BCEA section 43 and Constitution section 28 prohibits employment of children under age of 15 (minimum school leaving age). o Contravention criminal offence - Children younger than 15, may perform in o Advertising o Sporting o Artistic o Cultural activities Only ito regulations issued by Minister or ministerial / sectoral determination. BCEA 44, 50(2)(b), 55(6)(b) - Regulations regarding children under 15 in areas mentioned above: o Remuneration paid to parent / guardian of child o Maximum hours per day: 4 hours if 10 years and older 3 hours if younger than 10 o Rest periods must be provided After 2 hours of continuous work – 10 years or older After 1 and half hours continuous work – younger than 10 years o Nutritious food and drink must be provided o Safe areas provided for rest and play o Safe transport between child’s home and workplace - Forced labour is prohibited BCEA section 48; Constitution section 13. Page 24 of 64 LLW2601 2014 5. Enforcement of BCEA 5.1 Courts - Labour court concurrent jurisdiction with civil courts on any matter concerning BCEA (77). o Wide powers to enforce BCEA (77A) Making compliance orders Issuing fines 5.2 Inspectors - Appoint labour inspectors ito BCEA 63 who may o Enter workplaces o Require person to disclose relevant information o Question employers and a employees o Inspect documents and records o May obtain written undertaking form employer in default that will comply with BCEA provisions If employer refuses / neglects to comply, compliance order may be issued If employer still does not comply, order may be obtained from Labour Court. 6. Variation of basic conditions - BCEA allows for or some terms and conditions to be varied. - Core terms may not be varied at all. maximum working hours provisions provisions relating to relating to sick leave 5 core night work terms that cannot be varied not less 4 months' than 2 maternity weeks' leave annual leave Page 25 of 64 LLW2601 2014 6.1 Collective agreement - Collective agreement between trade unions and employers may change conditions of work o Consistent with purposes of Act (49) - May replace / exclude a basic condition to extent permitted by Act or sectoral determination. 6.2 Ministerial determination - Section 50 - Primarily replaces / excludes basic minimum conditions iro any category of employees or category of employers, but generally does not set minimum wages. - Such determination may vary maximum ordinary weekly working hours if: o Determination agreed to in collective agreement o Operational requirements of sector necessitate this o Majority employees are not members of registered trade union. - May relate to o ordinary hours of work o overtime o meal intervals o daily and weekly rest periods o annual leave - But must be more favourable to employees than those conditions set out in BCEA. - Exist for o special public works programme o small businesses o welfare sector - Typically non-unionised - Not introduced minimum wages. 6.3 Sectoral determination - Sectoral determination by Minister ito BCEA 51, another way to establish conditions of employment. - Primarily establishes and regulates minimum wages. - Can also include other conditions of employment. - May only be made o after investigation has been done (by DG of DoL) o at initiative of Minister or o as requested y employers’ or employees’ organisation into particular sector / area o after consideration of representations by public and o preparation of a report. - Employment Conditions Commission must advise Minister on range of factors that will impact on specific sector and area such as: o Ability of employers to continue to carry on their business successfully o Operation of small, medium, macro, new enterprises o Cost of living o Alleviation of poverty o Inequality in wages o Likely impact of determination on current and future employment - May relate to o Ordinary working hours o Overtime o Meal intervals o Daily & weekly rest periods o Annual leave Terms on whole must be more favourable o employees than required by BCEA. Page 26 of 64 LLW2601 2014 - May not reduce protection for night work and maternity leave - May vary ordinary hours of work only if o Determination agreed to in collective agreement o Operation requirement of sector necessitate this o Majority of employees are not members of registered trade union. - Minimum wages & conditions set out in sectoral determination will apply to contract of employment between employer and employee o E.g. Farming Private security Contract cleaning Hospitality industry Taxi and domestic workers sector o Said sectors are not well organised, not capable of effective collective bargaining. o Minimum wages generally amended annually to keep abreast of inflation. Africanisation and Labour Law - Ubuntu values echoed in BCEA - BCEA section 43 re employment of children put in place to protect children from exploitation & being exposed to dangerous environments. - Evidence of care, compassion, fairness. - Those who contravene with provisions may be found guilty of offence. - BCEA also applies to domestic workers & farm workers. o Social justice o Fairness o Dignity Page 27 of 64 LLW2601 2014 Study Unit 3, Chapter 5: Employment Equity Act 1. Introduction - Discrimination previously implemented by laws: o Industrial Conciliation Act 28 / 1956: excluded black people from collective bargaining o Mines and Works Act 12/1911; 27/1956: Job reservation for whites o Wage Act27/1925; 44/1937; 5/1957: sanctioned differentiations in wage determination based on race and sex o Public Service Act 54/1957; 111/1984: authorised discrimination based on sex. - Limited training to black people and females skills disadvantage - Disabled people couldn’t easily enter the workplace. - General discrimination based on race, sex, disability patterns of disadvantage for these groups. - Equality, embraced in 1990s, section 9 of Constitution: o (2) includes full, equal enjoyment of all rights and freedoms promote achievement of equality, legislative & other measures designed to protect / advance persons/categories of persons disadvantaged by unfair discrimination o (3) State may not unfairly discriminate directly / indirectly Against anyone on one / more grounds, incl Race Age Gender Disability Sex Religion Pregnancy Conscience Marital status Belief Ethic / social Culture origin Language Colour Birth Sexual orientation o (4) No person may unfairly discriminate directly / indirectly against anyone on grounds in subsection 3 - Constitution o holds country’s founding values to be Human dignity Achievement of equality ( embraced as goal, but only first step in achievement) Advancement of human rights and freedoms Non-racism Non-sexism o Section 9: Prohibition of unfair discrimination Authorises affirmative action - Employment Equity Act gives content to Constitution. Page 28 of 64 LLW2601 2014 2. Basic Terminology 2.1 Formal and Substantive equality - Constitution Equality clause o Formal equality Sections 9(3) and (4) Protecting individuals against {unfair} discrimination equality in treatment Views individual ability and performance as only factors relevant for achieving success in society o Substantive equality Section 9(2) Opportunities are determined by individual status as member of group Discriminatory acts: Part of patterns of behaviour towards groups Result in disadvantage for such groups Prohibition of unfair discrimination In itself insufficient for true equality Affirmative action measures required to correct imbalances where disadvantage and inequality exist. 2.2 Differentiation and Discrimination - Differentiation o Treating people differently o Acceptable: based on valid grounds, serves a legitimate purpose o Differentiation in pay levels does not in itself constitute discrimination if its based on acceptable considerations such as levels of responsibility, expertise, skills - Discrimination o Differentiation based on unlawful ground o Even if there is not a specific intention to discriminate 2.3 Direct and Indirect discrimination - Direct discrimination o Easiest to determine o Someone is clearly treated differently because of a certain characteristic (race/gender) o E.g. Paid less because female Not promoted because disability - Indirect discrimination o Criteria that appear to be neutral, negatively affects a certain group disproportionately o Disguised, hard to detect o Unless criterion can be justified by requirements of the job, it will amount to indirect discrimination. o E.g. Candidates must have bass voice so more men than women will qualify. Page 29 of 64 LLW2601 2014 2.4 Specified and Unspecified grounds of discrimination - Specified grounds o EEA prohibits unfair discrimination in any employment policy / practice on 19 grounds (6(1)) Race; Gender; Sex; Pregnancy; Marital status; Family responsibility; Ethnic / social origin; Colour; Sexual orientation; Age; Disability; Religion; HIV status; conscience; Belief; Political opinion; Culture; Language; Birth; Any other arbitrary ground. o EEA’s list corresponds with Constitutional list, but includes Family Responsibility; HIV status; Political opinion o Lists have in common the potential to demean people. o Grounds relate to individual’s personal attributes. - Unspecified grounds o Court will use dignity as measure to determine if unspecified ground has potential to form basis for discrimination o Fewer discrimination cases on this basis o E.g. Qualifications Tertiary teaching Research experience Professional ethics Mental health/illness Political / cultural affiliation Being a parent 3. Purposes of the EEA - Applies to all employers as far as prohibition of unfair discrimination is concerned. - Application of affirmative action only applies to designated employers. - Specifically excludes members of: o National Defence Force o National Intelligence Agency o South African Secret Service o South African National Academy of Intelligence o Directors and Staff of Comsec (4(3)) - Gives effect to equality provisions of Constitution. - Promotes achievement of equality in workplace. - Provides foundation for non-discrimination and affirmative action in employment law. - Other related legislation includes: o Promotion of Equality and Prevention of Unfair Discrimination Act 4/2000 (PEPUDA) Purpose: promoting equality and preventing unfair discrimination in all spheres of society Does not apply to persons defined as employees to whom the EEA applies. Workers excluded from EEA (independent contractors) may rely on this act’s protection. o Labour Relations Act Regards dismissal on ground of discrimination automatically unfair with severe penalties (187(1)(f)) o Broad-Based Black Economic Empowerment Act 53/2003 (BBBEEA) Promote economic transformation and enable meaningful participation of black people in economy. Aim: achieve substantial change in racial composition of ownership and management structures in skilled occupations of existing and new enterprises. Page 30 of 64 LLW2601 2014 - EEA follows Constitution: it subscribes to both formal and substantive equality Purpose of EEA: - (1) Prohibit unfair discrimination (formal equality) Chapter II o Promote equal opportunities & fair treatment in employment through elimination of unfair discrimination Applicable to all employers and employees Job applicants o Prohibit direct and indirect unfair discrimination on one or more specified or unspecified grounds Applicable to all employers and employees Job applicants - (2) Provide for affirmative action (substantive equality) Chapter III o Redress disadvantage experienced by designated groups Applicable only to designated employers and employees. 4. First purpose; prohibition against unfair discrimination 4.1 Establishing unfair discrimination - EEA section 6(1): o no person natural as well as juristic persons rd Perpetrator may be anyone, employer, co-employee, 3 party o may unfairly discriminate against an employee applicants for employment are also protected against unfair discrimination however difficult it might be for them to substantiate unfair discrimination claims o in any employment policy or practice. An employment policy / practice: include all aspects of employment, e.g. recruitment procedures, advertising, selection criteria, working environment & facilities, training and development. - Stage 1 of an unfair discrimination enquiry o Establish factual foundation for alleged differentiation and the grounds on which the differentiation took place e.g. Muslim not nominated for training while others have. He must establish factual foundation, by producing requests for training and those of other successful applications. This will lay basis for the claim. - Stage 2 of an unfair discrimination enquiry o Establish a link between differentiation and alleged (specified / unspecified) grounds. o These grounds must be the reason / cause for the differentiation. E.g. Muslim must show that his religion is the REASON why he is denied training E.g. he must establish fact that all other co-employees have been set on training while his application has been declined time and again without good reason. Page 31 of 64 LLW2601 2014 o Once such a link has been established, the differentiation becomes discrimination and it is presumed to be unfair. - Here the complainant must show that specified / unspecified ground is the reason for the differentiation. o Showing a link places a difficult burden on a complainant and he is required to establish only a prima facie (based on first impression) case of discrimination. o This is more than an allegation or ‘bold averment’. o Once a prima facie case of discrimination is established on specified or unspecified grounds, presumption of unfairness arises. (EEA section 11) - Stage 3 of an unfair discrimination enquiry o Employer gets opportunity of showing that alleged unfair discrimination was indeed fair. E.g. Muslim not sent on training because there’s a minimum requirement of 3 years practical experience. All other employees have been working 5 years and longer. Muslim only 2 years. Difference in treatment justifiable 4.2 Justification grounds for discrimination - Section 6(2) two grounds of justification for allegedly unfair discrimination, affirmative action & inherent job requirements. 4.2.1 Affirmative action o Measures must be applied by designated employers (section 1) o To ensure that suitably qualified people from designated groups (section 1) o Have equal employment opportunities and are equitably represented in all occupation categories and levels of the workplaces of those employers. (section 15) Designated groups Designated employers - Black people - Larger enterprises (50 + employees) - Women - Employers with fewer than 50 employees, but have annual - People with disabilities turnover specified in Schedule 4 of EEA ‘black people’ includes - Municipalities Africans - Organs of state Coloureds Airports Company of SA Indians Central Energy Fund Chinese Development Bank of SA Eskom SABC SA Post Office Telkom SA Limited - Employers designated as such in terms of collective agreement o If employer uses affirmative action as defence against unfair discrimination, remember that AA measures must be consistent with purposes of EEA (section 6(2)(a)) Page 32 of 64 LLW2601 2014 4.2.2 Inherent requirements of the job o If job in essence requires a certain attribute, it will not be unfair to exclude people without that attribute. E.g. Inherent job requirement that sales assistant in lingerie shop is female. Exclusion of males is not unfair discrimination. o EEA does not define ‘inherent requirements of job’, but courts have interpreted this concept in a narrow manner in that only requirements that cannot be removed from the relevant job description (without changing the nature of the job) are regarded as inherent requirement. E.g. not inherent that bus driver must be male / fire fighter may not be gay.etc. 4.3 Other specific forms of discrimination prohibited 4.3.1 Harassment as unfair discrimination o Any type of harassment unfair discrimination in EEA (section 6(3)). o Most common form sexual harassment. Serious transgression. Code: Sexual Harassment: attempts to provide guidance to employers on o how to deal with this occurrence and o how to curtail such conduct in work
