Labour & employment law B com

Why labour law? Important – especially for students studying HR – if in business – generally an employer or an employee – know your rights and duties

The uneven relationship There is an uneven relationship between employers and employees Few employers and many employees People want and need jobs If no protection – opens door for abusive relationship Always someone who is willing to do it for less Govet needs to level playing field

The four mechanisms to introduce equality Mechanisms designed to ensure ‘fairer’ terms and conditions of employment. These mechanisms may further be divided into: legislation that lays down minimum terms and conditions of employment (eg: BCEA) legislation that promotes collective bargaining to ensure a greater measure of equality (eg: LRA) Protection against unfair dismissal (regulated by the LRA) Protection against unfair labour practices (regulated by the LRA) Protection against unfair discrimination (regulated by the EEA) (at the same time provision is made for training and skills development in the workplace which is regulated by the Skills

Individual – Employer and employee Collective – Employer and group of employees

Sources of labour law in sa Common law Legislation Collective agreements International Labour Standards Constitution

The two types of contract Letting and hiring of services Locatio Conductio Operarum Letting and hiring of work Locatio Conductio Operis

Employee or independent contractor Locatio Conductio Operarum Locatio Conductio Operis The letting and hiring of services (employee) Puts services at the disposal of the employer Authority, control and supervision of the employer Usually paid per hour, day, week or month Employer vicariously liable for delicts of employee The letting and hiring of work (contractor) Performs a certain piece of work Not under the control or authority of the employer Usually paid per job or per result Contractor personally liable for delicts

test Control test Organisation test Dominant impression test

Factors to consider Must services be rendered personally? Are their fixed hours & a regular wage? Is employers disciplinary code applicable? Are there any benefits; pension, medical aid etc? Is there any control exercised by the employer?

Employees and contractors Presumptions created by BCEA (83A) and the LRA the manner in which the person works is subject to the control or direction of another person the person's hours of work are subject to the control or direction of another person in the case of a person who works for an organisation, the person forms part of that organisation' the person has worked for that other person for an average of at least 40 hours per month over the last three months the person is economically dependent on the other person for whom he or she works or renders services the person is provided with the tools of trade or work equipment by the other person the person only works for or renders services to one person

Why does it matter? Labour law protects employees Independent contractors have to fend for themselves

The employment contract At common law – no formalities Section 29 of BCEA prescribes 16 pieces of information to be provided in writing on commencement of employment

The essentials Voluntary agreement Between two parties Agree to perform certain specified duties For indefinite or specified period In return for payment And giving employer right to direct employee

The typical employment contract Employer details Job description Rate of pay, overtime etc Duration Benefits Leave Working hours Deductions Policies Rules

Common law duties of the employer To pay the employee (if agreed) To provide work (if necessary) Not to require employee to do work junior to their status Not to force employee to different work than agreed upon Not to contract the employee to someone else without employee consent To provide safe working conditions

Common law duties of the employee Make personal services available Work faithfully and diligently Obey reasonable orders Exercise reasonable care

Note: A violation of the duty of good faith or any action which breaks the relationship of trust between employer and employee could lead to dismissal Examples: Competing with employer (weekend jobs) Criticising the employer on social media

The concept of vicarious liability Generally – no one liable for the delicts of another, however; Employers (and the employee) are liable for the delicts committed by their employees while acting in the course and scope of their duties and in furtherance of the employers interests

Requirements for liability There must be an employment relationship Delict committed in the course of performance of duties, within scope of employment and towards furtherance of employers interests Employee must not have been on a frolic of his own

Employer Liability for I/C delicts Generally no liability, but employer can be jointly liable with I/C if: Employer negligent Employer instructs or ratifies delictual action Delict is a result of incomplete instruction by employer Employer fails to take necessary safety measures

Labour legislation Basic Conditions of Employment Act Labour Relations Act Employment Equity Act Unemployment Insurance Act Occupational Health & Safety Act Compensation for Occupational Injuries & Diseases Act Etc ……..

BCEA Minimum conditions of employment Applies to all employees except members of SANDF & intelligence services Persons earning over R205 433 exempted from working hours, overtime etc Sets maximum working time – 45 hour week Provides for overtime – 1 ½ times pay or paid time off Overtime is by agreement Compressed work week and shift work Meal intervals Rest periods Sunday work Night work

BCEA Leave Maternity, sick leave, family responsibility, annual Inform workers of rights – posters Record keeping Payslips Deductions Notice period 1 week, 2 weeks, 4 weeks Certificate of service Labour inspectors

Labour relations act To provide for the prevention and settlement of disputes between employers and employees and for the regulation of terms and conditions of employment by agreement & arbitration

LRA Allows for registration of trade unions and employers organisations Allows for collective bargaining councils, industrial councils etc Allows for conciliation boards and mediation & arbitration Establishes the CCMA

LRA Provides for collective bargaining – trade unions have organisational rights Attempts to create order in the workplace through negotiation and process of dispute resolution Strikes & lock-outs are a tool to achieve this Regulates strikes & lock-outs

Strikes & lock-outs

LRA Outlaws discrimination in the workplace Regulates dismissals Fair dismissals Only 3 – misconduct, incapacity & operational requirements Unfair dismissals See Code of Good Practice (Schedule 8) Automatically unfair dismissals

dismissals Substantive fairness Procedural fairness

Retrenchment process A written notice advising and inviting prior consultation A joint consensus-seeking process over certain matters such as appropriate measures to avoid retrenchment or to minimize the number of dismissals Written disclosure of all relevant information to allow for effective consultation Allowing employees an opportunity to make representations during the consultation Consideration of the representations Selection of employees according to agreed selection criteria, such as LIFO Payment of severance pay in terms of the BCEA – at least one week’s severance pay for every completed year of continuous service

Automatically unfair dismissals The employer acts in contravention of freedom of association in dismissing an employee The employee is dismissed for participating in a protected strike or protest action The employee is dismissed for refusing to provide replacement labour where other employees are on a protected strike The employee is dismissed to compel him or her to accept a demand made by the employer The employee is dismissed for exercising his or her rights granted by the LRA against the employer A female employee is dismissed for any reason related to her pregnancy The dismissal constitutes unfair discrimination against an employee concern (in the ordinary course of business and in circumstances of insolvency) by one employer to another, or a reason related to such transfer The employee is dismissed because he or she has ‘blown the whistle’ or had made a protected disclosure to certain people or institutions

Chomp Supermarket fires Jake for stealing a can of baked beans. Is this a fair dismissal?

The ccma Dispute resolution mechanism Conciliation Mediation Arbitration

Bargaining councils Industry wide application Equal representation of employers and employees through representative bodies Negotiation Dispute resolution