Essentials South African labour law

1 essentials

1.1 agreement
1.2 work
1.3 remuneration
1.4 reciprocity
1.5 summary

essentials

the common-law concept of employment sets scene interpretation of labour relations act 1995.

the contract of employment foundation of relationship between employee , employer. links 2 parties in employment relationship, irrespective of form contract takes.

the existence of employment relationship starting point application of labour law rules. without employment relationship between parties, rules of labour law not apply.

the origin of south africa s modern contract of employment lie in roman law, distinction made between 2 types of contracts discussed above: locatio conductio operis , locatio conductio operarum.

in terms of common law, 1 not have have written contract; therefore, not having contract in written form not fatal flaw, contract can verbal. there are, however, number of statutes require specific contracts of employment in writing. section 29 of basic conditions of employment act, example, states employer must supply employee written particulars concerning specific things, hours worked , remuneration.

like contract, locatio conductio operarum commences when parties have agreed essential terms, unless both parties have agreed suspend operation particular period. if contract s operation suspended, employer obliged allow employee commence work on specified date. failure so, without cause, constitutes breach of contract @ common law , dismissal under labour relations act 1995. important, therefore, determine essentials of contract of employment are.

stripped essence, contract of employment today may defined agreement between 2 parties, in terms of 1 party (the employee) works (the employer) in exchange remuneration. although definition appears simple, contains number of important principles, aspects , implications. when taken account below, definition of employment contract may expanded follows:

the contract of employment voluntary agreement between 2 legal personae (the parties) in terms of 1 party (the employee) places or personal services or labour potential @ disposal of other party (the employer) indefinite or determined period in exchange form of fixed or ascertainable remuneration, may include money and/or payments in kind. entitles employer define employee’s duties , control manner in employee discharges them.

agreement

firstly, must noted employment contract based on agreement; parties must enter voluntarily. idea finds expression in section 13 of constitution, provides no 1 may subjected slavery, servitude or forced labour, , section 48 of basic conditions of employment act, states forced labour prohibited.

another implication of fact employment contract based on agreement is contract, , therefore must comply requirements of our law valid contract. if not comply these requirements, not regarded binding , enforceable.

consensus between parties means both must have serious intention create mutual rights , duties legally bound. must have each been aware of nature of duties, , other had intention.

at common law, parties not required observe formalities. there no requirement contract in writing, employment contracts required statute in writing, of merchant seamen , learners under skills development act. in addition, of apprentices , candidate attorneys must registered appropriate authorities. lastly, parties wish alter provisions of basic conditions of employment act, must done in writing.

work

secondly, 1 of pivotal concepts in initial definition of work. generally, work means place one’s labour potential @ disposal , under control of another. means that, when work, offer our services person, , agree other person able tell do, when it, how , it.

to place labour potential @ disposal of means offer ability perform tasks person, , offer, @ same time follow person’s instructions.

remuneration

remuneration takes form of payment of money, or provision of benefit. (according common law, payment may made in kind.)

payment may made monthly, weekly, daily or in irregular cash payments. common law not prescribe form payment must take.

the labour relations act 1995 contains statutory definition of remuneration in section 213: payment in money or in kind, or both in money , in kind, made or owing person in return person working other person, including state.

the contract may state remuneration normal going rate specific type of work, or state specific amount or merely minimum wage.

the common law not indicate minimum wages; these set collective-bargaining councils , industry specific.

reciprocity

the contract of employment reciprocal contract. means 1 promise made in exchange another, , 1 obligation incurred in exchange other. employee works in exchange remuneration; employer remunerates employee in exchange employee offering place labour potential @ disposal , under control of employer.

summary

to summarise, essential elements of employment contract follows:

it voluntary agreement.
there 2 legal personae.
the employee agrees perform specified or implied duties employer.
there indefinite or specified period.
the employer agrees pay fixed or ascertainable remuneration employee.
the employer gains (qualified) right command employee manner in carries out duties.