A Practical Guide to Labour Law

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1 A Practical Guide to Labour Law Sixth Edition Authors JV du Plessis BA LLB LLD (Unisa) Advocate of the High Court Professor of Mercantile Law, University of the Free State MA Fouche Bluris LLB NHD PSE Advocate of the High Court Professor of Labour Law, Nelson Mandela Metropolitan University Senior Commissioner of the CCMA and bargaining council arbitrator Editor MA Fouche LexisN'exis Durban

2 CONTENTS Preface v Part 1: Common Law 1 Introduction Background Sources of labour law rules Lexical order of sources and rules 4 Questions 7 2 Common law contract of employment Introduction Nature of locatio conductio operarum (contract of employment) Conclusion of the contract Essentialia of the employment contract Specified work Remuneration Conditions of employment Vacation leave Sick leave Duties of employer To accept the employee into his service To provide the employee with work To pay the remuneration agreed upon To pay a quantum meruit To provide safe working conditions To comply with statutory duties The employee's remedies Cancellation Specific performance Damages Refusal to work Statutory remedies The employee's duties To make his services available To warrant his competence To obey the employer To be subordinate to the employer Maintaining bona fides To exercise reasonable care when using the employer's property To refrain from misconduct The employer's remedies Summary dismissal Specific performance Damages Statutory remedies Termination of the contract of employment By notice Bv the effluxion of time 23

3 A Practical Guide to Labour Law By agreement By the death of the parties By the insolvency of the parties By the illness of the employee By impossibility of performance By cancellation (summary termination) Redundancy of post Completing a specific task The employer's delictual liability Employer/employee relationship The delict must have been committed by the employee in the course of the performance of his duties The employer's liability for the delicts of an independent contractor Restraint of trade The employer and third parties Questions Part 2: Social Legislation 3 Basic Conditions of Employment Act 75 of Introduction Aims of the Act 3.3 Application Definitions Ordinary working hours Overtime Compressed working week Averaging of hours of work Meal intervals and rest periods Work on Sundays and public holidays Night work Leave Annual leave Sick leave Maternity leave Family responsibility leave Particulars of employment and remuneration Termination of employment Prohibition of employment of children and forced labour Variation of conditions of employment Variation by agreement Variation by Minister Sectoral determinations Employment Conditions Committee Monitoring and enforcement of legal provisions Legal proceedings General '!"...!^^^'"^!!""!"""""^^"^^ 52 Questions 52 Appendices 57 4 Employment Equity Act 55 of Introduction Constitutional equality The equality clause The affirmative action clause 78

4 Contents jx The anti-discrimination clause Proof of discrimination The objectives of the Employment Equity Act Application of the Employment Equity Act Chapter II - Prohibition of unfair discrimination Meaning of "unfair discrimination" Provisions of Chapter II Dispute resolution Chapter III - Affirmative action Affirmative action measures Duties of designated employers Commission for Employment Equity Monitoring, enforcement and legal proceedings Labour inspectors The Director-General The Labour Court Protection of employee rights General provisions 87 Questions 88 Appendices 93 5 Unemployment Insurance Act 63 of Introduction Definitions Application of the Unemployment Insurance Act Framework of the Unemployment Insurance Act Unemployment Insurance Fund Unemployment Insurance Board LTnemployment Insurance Commissioner Ill Claims officers Director-General Ill 5.5 Benefits Ill Right to benefits Ill Calculation of benefits Unemployment benefits Illness benefits Maternity benefits Adoption benefits Dependant's benefits General provisions relating to benefits Dispute resolution Enforcement 11" 5.7 Duties of employer Miscellaneous Unemployment Insurance Contributions Act 4 of Contributions Interest, penalties and offences Application of the Income Tax Act 121 Questions 122 Appendices Compensation for Occupational Injuries and Diseases Act 130 of Introduction Application of the Act Duties of employer Procedure to claim compensation

5 A Practical Guide to Labour Law 6.5 The right to compensation Compensation Temporary total disablement Permanent disablement In the event of the death of an employee Compensation for occupational diseases Increased compensation Claiming compensation from the employer or a third party Occupational Diseases in Mines and Works Act 78 of Questions 152 Appendices Occupational Health and Safety Act 85 of Introduction Application of the Act Advisory Council for Occupational Health and Safety Duties of employers Duties of employees Health and safety representatives Health and safety committees Inspectors Miscellaneous Mine Health and Safety Act 29 of Questions 174 Appendices Skills development Introduction Skills development strategy The skills development strategy in the context of legislation and other policy proposals Skills Development Act 97 of Introduction Purposes of the Act Structures of education and training National Skills Authority (NSA) Sector Education and Training Authorities (SETA) Skills Development Planning Unit (SDPU) Labour centres Learnerships Skills programmes Financing of skills development General provisions Skills Development Levies Act 9 of Registration for payment Employers liable to pay Payment of levies General provisions Payment of grants 188 Questions 189 Appendices 191 Part 3: Labour Relations 9 Development of South African labour law Introduction National Economic, Development and Labour Council Act 35 of

6 Contents x; Establishment of NEDLAC Objectives and functions of NEDLAC 197 Questions Labour Relations Act 66 of Introduction Application of the LRA Freedom of association 202 Questions Framework of the Labour Relations Act Introduction Trade unions and employers' organisations Bargaining councils Establishment of a council Functions of bargaining councils Bargaining councils in the public service Statutory councils Establishment and registration of statutory councils Powers and functions of statutory councils Commission for Conciliation, Mediation and Arbitration (CCMA) Establishment of the CCMA Functions of the CCMA Governing body Finances of the CCMA Labour Court Composition Jurisdiction Powers of the Court General Labour Appeal Court Composition Jurisdiction Workplace forums 218 Questions 218 Appendices Collective bargaining Introduction Recognition and the duty' to bargain Organisational rights Right of access to workplace Deduction of trade union subscriptions or levies Leave for trade union activities Trade union representatives Disclosure of information Exercise of organisational rights Resolution of disputes about organisational rights Collective bargaining structures Bargaining councils Statutory councils Workplace forums The bargaining process Bargaining unit Bargaining levels 238

7 A Practical Guide to Labour Law Bargaining agenda Bargaining conduct Collective agreements Legal effect of collective agreements Agency shop agreements Closed shop agreements Resolution of disputes about collective agreements 242 Questions 243 Appendices Worker participation Introduction Establishment of a workplace forum Worker participation Disclosure of information Matters for consultation Joint decision-making Dispute resolution 259 Questions 259 Appendices Dismissals Introduction Definition of dismissal Automatically unfair dismissals Date of dismissal Requirements for a fair dismissal Substantive fairness Procedural fairness Dismissal for misconduct Dismissal for incapacity Dismissals for operational requirements Disputes about unfair dismissals Remedies for unfair dismissals Transfer of the contract of employment 283 Questions 284 Appendices Unfair labour practices Introduction Definition of "unfair labour practice" Promotions Demotions Benefits and training Unfair suspension and other disciplinary action Refusal to reinstate or re-employ Probation Protected Disclosures Act of Job applicants Dispute resolution 313 Questions Dispute resolution 3I Introduction 3ig 16.2 Structures for dispute resolution 319

8 Contents xijj 16.3 Dispute resolution by councils Accreditation Jurisdiction of councils Referral of dispute to council Subsidies, fees and confidentiality' Dispute resolution by the CCMA CCMA jurisdiction Conciliation Arbitration The arbitration award Powers of CCMA commissioners Con-arb Pre-dismissal arbitration Dispute resolution of specific disputes 328 Questions 337 Appendices Strikes and lock-outs Introduction A right to strike Definition of a strike Prohibited strikes (absolute limitations on industrial action) Essential services Maintenance sendees Protected strikes Consequences of a strike Other forms of industrial action Secondary strikes Picketing' Protest action to promote or defend socio-economic interests Strikes or lock-outs in response to impending retrenchments Determining the nature and status of industrial action Lock-outs 364 Questions 365 Appendices Other relevant legislation Introduction Other labour legislation Public Service Act Employment of Educators Act Municipal Systems Act Other legislation Extension of Security of Tenure Act Promotion of Access to Information Act Promotion of Administrative Justice Act Intercepting and Monitoring Prohibition Act Electronic Communications and Transactions Act Regulation of Interception of Communications and provision of Communication-related Information Act ILO Convention and proposed legislation Broad Based Black Economic Empowerment Act 392 Bibliography 395 list of cases ^-'~ Legislation 403

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