The labour law in South Africa since the colonial times has regulated the relationship between employers, employees and trade unions in the country.

History The Native Labour Regulations Act 1911 prohibited strikes by trade unions, introduced wage ceilings and a pass system for moving around jobs. Over 70,000 Chinese labourers were brought in, and used by landowners to undercut the wages of other workers. Among white workers, there was significant unrest, and major strikes took place in 1907, 1913, 1914 and 1922

For a period of sixteen years, from 1979 to 1995, several critical developments occurred in the field of labour law in South Africa, beginning with a radical change in the first of these years, when a significant Commission of Enquiry was held, resulting in the establishment of an Industrial Court, which was given extensive powers to mould, change, shape and develop the law. Prior to 1995, most labour relations were based on contracts. In 1995, much of the law developed by the Commission and the Industrial Court was put together in the Labour Relations Act 1995 (LRA). Since then, most labour law has been based on statute.

Prior to 1995, an employee could be dismissed in terms of the contract of employment, which could permit any reason for dismissal. Since 1995, an employee may be dismissed only for misconduct, operational reasons and incapacity. The Labour Relations Act 1995 is a pivotal piece of legislation, as it recognises the need for fast and easy access to justice in labour disputes. The Industrial Court had the status of a High Court, and therefore was not accessible to all labourers.

1995 also saw the introduction of the Commission for Conciliation, Mediation and Arbitration (CCMA) which is an administrative tribunal. The Commission for Conciliation, Mediation and Arbitration endeavours first and foremost to conciliate between the parties. If it is unsuccessful in this, the matter moves on to arbitration. The entire process is very informal, and at no charge, and is therefore very accessible to labourers, who often use it: About 300 new cases are brought before the Commission for Conciliation, Mediation and Arbitration daily. In addition to the Commission for Conciliation, Mediation and Arbitration, 1995 saw the introduction of bargaining councils, which allow for communication across the industry. A bargaining council is organised collectively and voluntarily, and must be registered. In order to be registered, an alternative-dispute-resolution mechanism, similar to the Commission for Conciliation, Mediation and Arbitration, must be put in place.

The Labour Relations Act 1995 also regulated the issue of fairness, not only in termination but during employment, too. In 1998, however, most of the law on unfair labour practices was removed from the Labour Relations Act 1995 and put into the Employment Equity Act (EEA). The EEA also deals with issues such as fairness regarding a worker's human immunodeficiency virus (HIV) status or disability, as well as the issue of affirmative action.

The Basic Conditions of Employment Act (BCEA), the Health and Safety Acts and the Skills Development Act, must be read with the EEA. The Skills Development Act provides that a small percentage of a labourer's salary must be contributed to the Department of Labour, enabling certain workshops to be run which are designed to develop skills.

Constitution Chapter 2 of the Constitution contains several provisions of relevance to employment and labour law:

the right to equality protection of dignity protection against servitude, forced labour and discrimination the right to pursue a livelihood and protection for children against exploitative labour practices and work that is hazardous to their well-being.

It is important to interpret all labour legislation in light of the Constitution.

Section 23 of the Constitution deals specifically with labour relations, providing that everyone has the right to fair labour practices,s 23(1). and specifically the right

to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike

Every employer, meanwhile, has the right

to form and join an employers’ organisation; and to participate in the activities and programmes of an employers’ organisation.

Every trade union and every employers’ organisation has the right

to determine its own administration, programmes and activities to organise and to form and join a federation

Finally, every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Section 23(1) is an unusual provision—only South Africa and Malawi expressly protect the right to fair labour practices — as it is so broad and overarching. An exact definition of fair labour practices is impossible, since this is a dynamic field of the law, rooted in socioeconomic rights. Section 23(1) refers to "everyone," encompassing far more than merely employees and workers; it also includes would-be workers, employers and juristic persons.

Section 23 is not entirely universal, however, as soldiers are excluded from its ambit insofar as they may not strike at a time of war.

The Labour Relations Act was promulgated as the "national legislation" referred to in subsections 23(5) and 23(6), which provide respectively that "national legislation may be enacted to regulate collective bargaining," and that "national legislation may recognise union security arrangements contained in collective agreements." Both subsections stipulate that, to the extent that such legislation may limit one of the rights in section 23, the limitation must comply with section 36(1), the limitations clause of the Constitution.

The current Basic Conditions of Employment Act is also designed to give effect to the right to fair labour practices. Both Acts are bolstered by the EEA, which replicates the equality clause in the Constitution in its totality, adding that one may not discriminate on the basis of human immunodeficiency virus (HIV) status.

The general guarantee of fair labour practices has far-reaching effects on the civil courts’ approach to the interpretation of the rights of parties to employment contracts.

All courts are enjoined, when applying and developing the common law, to have due regard to the spirit, purport and objects of the Bill of Rights. This calls for a reconsideration of some of the assumptions underlying the common-law contract of employment, in particular the employer's power of command and unfettered rights in respect of promotion and dismissal.

Furthermore, the labour courts’ judgments on such contentious issues as the dismissal of striking workers are subject to review by the Constitutional Court, so long as the applicants have exhausted the procedures available to them under the labour legislation.

In NUMSA v Bader Bop,2003 (24) ILJ 305 (CC). the Constitutional Court overturned a decision of the Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. The court recognised the necessity of collective bargaining and bargaining councils which facilitate the establishment of trade unions. The court held that minority unions may not strike in support of demands for organisational rights reserved in the Act for majority unions.

In NEHAWU v University of Cape Town,2003 (24) ILJ 95 (CC). the Constitutional Court overturned another decision of the Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. It had been argued that the term "everyone" did not include a university or a company, but the court held otherwise. Furthermore, the court ruled that, under the original section 197 of the Labour Relations Act 1995, contracts of employment transferred automatically when businesses were transferred, irrespective of the wishes of the employers.

SANDU v Minister of Defence,(1999) 20 ILJ 2265 (CC). another Constitutional Court, case Judge O’Reagan dealt with the concept of a "worker," and held that, although the Labour Relations Act 1995 does not apply to South African National Defense Force (SANDF) members, they are still "workers" in terms of the Constitution, which protects the rights of every person in South Africa.

Employment contract

Parties

Labour Relations Act 1995 s 200A

There is very little work that cannot be outsourced. Outsourcing is generally not supported by trade unions, who represent employees. If work is outsourced, the worker is an independent contractor. Political pressure was placed on government to move away from outsourcing and more towards employment.

In 2002, accordingly, a new presumption was added to the Labour Relations Act 1995, providing guidelines on when it has to be ascertained whether or not someone is an employee. This presumption was introduced as a part of significant amendments to the Labour Relations Act 1995 and the Basic Conditions of Employment Act in 2002.Section 83A of the BCEA contains a provision similar to section 200A of the LRA.

The effect of this rebuttable presumption is that, if one or more of the list of factors is present, the person is presumed to be an employee unless and until the contrary is proven. Many of the factors and issues discussed by the courts in the cases above resurface again: The presumption is thus created

if the manner in which the person works is subject to the control or direction of another person; if the person's hours of work are subject to the control or direction of another person; if, in the case of a person who works for an organisation, the person forms part of that organisation; if the person has worked for that other person for an average of at least forty hours per month over the last three months; if the person is economically dependent on the person for whom he works or renders services; if the person is provided with tools of trade or work equipment by the other person; and if the person only works for or renders services to one person.

The legislative provision has been taken by some to be merely a restatement or summary of the principles laid down by the courts with the passing of time.

Although this presumption is useful in determining whether a person is an employee or not, as it is closely linked to the principles and approaches developed by the courts, the Labour Court held, in Catlin v CCMA, that section 200A does not do away with the principle that the true nature of the relationship between the parties must be gathered from the contract between them. Section 200A is not the starting point, therefore; the court held that it is necessary to consider the provisions of the contract before applying the presumptions.

Duties An employment relationship commences only when the parties conclude a contract of service. Prior to this, neither party has any rights against the other; they are merely a prospective employee and a prospective employer.

There are, however, two statutory exceptions to the principle that employers have no obligations to applicants for employment:

The EEA prohibits direct or indirect unfair discrimination against an employee or applicant for employment on the basis of race, colour, gender, sex, religion, political opinion, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, culture, language, family responsibility, marital status or any other arbitrary ground. The Labour Relations Act 1995 and the Basic Conditions of Employment Act protect both employees and persons seeking employment against discrimination for exercising rights conferred by the Acts.LRA s5.s 79.

Employee

Basic employment rights The Basic Conditions of Employment Act is aimed at low-income earners: those who earn less than R193,805 per annum.

No matter what the contract itself says, the Basic Conditions of Employment Act is applicable as the minimum standard that must be achieved.