Sources South African labour law

1 sources

1.1 common law
1.2 constitution
1.3 labour relations act

sources
common law

the common law of south africa, amalgam of principles drawn roman, roman-dutch, english , other jurisdictions, accepted , applied courts in colonial times , during period followed british rule after union in 1910, plays virtually no role in collective labour law. initially, in fact, employment law, or law of master , servant, regarded branch of law of lease. such, common law did not concern directly collective bargaining; focus instead on rights , duties of individual employees , employers, reflected in contract on relationship based. law did not recognize claims employees had not been conferred agreement. although role of common law minimal, therefore, should noted common-law contractual relationship between employer , employee underpins collective labour law in general , collective bargaining in particular.

constitution

legislation therefore pivotal. constitution, however, more pivotal still. section 23 enshrines right fair labour practices, while section 18 provides has right freedom of association. right strike, furthermore, has been explicitly constitutionalized. constitution provides not right of every worker form , join trade union, right of every trade union form , join federation, cosatu. similar rights granted employers , employers’ associations well. right collective bargaining constitutionalized, mandate national legislation regulate it. more controversially, constitution provides national legislation may recognize union security arrangements contained in collective agreements.

labour relations act

collective bargaining 1 of ways in lra gives effect section 23 of constitution. important part of freedom of association. among first of lra’s aspirations, listed in preamble, regulate organisational rights of trade unions. trade union without organisational rights not of trade union. organisational rights allow trade union access workplace, etc.

the preamble describes purpose of lra promotion of collective bargaining, , regulation of rights strike , lock out. seeks advance democratization of workplace involving employees in decision-making through workplace forums, although these have not proliferated.

the lra defines employee person (excluding independent contractor) who

works person or state;
is entitled receive remuneration such work; and
assists in conduct of business.

trade union defined in lra association strictly of employees, principal purpose regulate relations between employees , employers. trade union must act in interests of members. trade unions support individual members individual disputes. trade union must have address in south africa, , name must not similar of union mislead or cause confusion. other requirements set out in section 95.

excluded application of lra members of

the national defense force;
the national intelligence agency; and
the south african secret service.




^ grogan collective labour law 11.
^ s 23(2)(c).
^ s 23(2)(a).
^ s 23(4)(c).
^ s 23(3)-(4).
^ s 23(5).
^ steadman, felicity. workplace forums in south africa: critical analysis. indus. lj 25 (2004).
^ if association 1 of students, example, not meet definition.
^ s 95(4)
^ s 2(a).