Week 1 Slides

Individual Labour Law
LWLLA2-B22
Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered with the Department of Higher Education and Training as a private higher education institution under the
Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008
Week 1: Lesson 1
Introduction
This week we consider the development of labour legislation in South Africa,

specifically with regard to fair labour practices within the context of the interim and
final Constitution.
We have a look at the theoretical principles in respect of Section 23 of the

Constitution, the rights entrenched in the Bill of Rights which relate to labour
relations and the instances where these rights may be limited.
Learning Outcomes
• Explain the importance of the inclusion of the right to fair labour practices into both the
interim and the final constitutions of South Africa.
• Explain the effect of Section 8 of the Constitution on the development of labour law in
South Africa.
• Provide the theoretical as well as the practical importance of the limitation of

constitutional rights in South Africa.
• Explain the relevance of the jurisdictional limitations in terms of Section 173 of the
Constitution.
Case Study
Tahilah has recently entered into a contract of employment with Rock-P-

Scissors, her employer, and is informed that no trade union exists for the
company.
She wishes to form a trade union; however, her contract of employment

prohibits her (as well as the other employees) from forming and/or joining a
trade union.
Tahilah recalls hearing that the interim Constitution gave effect to certain labour
rights, which she believes Rock-P-Scissors is violating but is uncertain whether
the position remains given the enactment of the final Constitution.
Questions for Discussion
1. Which of Tahilah’s rights are being violated in this case study?
2. Why was it important that the right to fair labour practices was included
into both the interim and the final Constitutions of South Africa?
3. Which other forms of prohibited conduct by employees will constitute an

unfair labour practice in terms of Section 23 of the Constitution, 1996?
Constitutional Framework
Section 23, which deals with labour relations states that -
(1) Everyone has the right to fair labour practices.
(2) Every worker had the right

(a) to form and join a trade union
(b) to participate in the activities and programmes of a
trade union; and
(c) to strike.
(3) Every employer had the right
(a) to form and join an employer’s organisation; and
(b) to participate in the activities and programmes of an
employer’s organisation.
(4) Every trade union and every employers’ organisation has
the right
(a) to determine its own administration, programmes
and activities
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer
has the right to engage in collective bargaining. National
legislation may be enacted to regulate collective
bargaining. To the extent that legislation may limit a right
in this Chapter, the limitation must comply with Section
36(1).
(6) National legislation may recognise union security

arrangements contained in collective agreements. To the
extent that the legislation may limit a right in this Chapter,
the limitation must comply with Section 36(1).
Activity
In groups discuss and present on the following (please include the relevant case law, if any):
1. Explain the horizontal application of the Bill of Rights within the context of Section 8 of the Constitution.
2. Discuss the ways in which constitutional rights may influence labour law.
3. Critically discuss the meaning of “everyone” as referred to in Section 23 of the Constitution.
4. Discuss collective bargaining and the duty to bargain.
5. Section 36(1) of the Constitution provides for the limitation of rights only in terms of a law of general
application to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom. Discuss the test that will be applied as well as
factors the court may consider.
6. Differentiate between labour matters and constitutional matters and discuss the courts which hold the
authority to hear these matters.
Quiz
1. The right to fair labour practices only applies to workers and trade unions.
2. Section 23 is not the only relevant section that has an impact of labour relations.
3. The courts may develop common law rules to limit any right, provided the limitation is effected in
accordance with the limitations clause.
4. The Constitutional Court is the only court that may develop the common law, if it would be in the
interests of justice to do so.
5. In the South African National Defence Union v Minister of Defence case, the court held that “the
term ‘worker’ in S 23(2) should be interpreted to include members of the armed forces, even though
the relationship that they have with the defence force is unusual and not identical to an ordinary
employment relationship”.
6. The court in NEHAWU v University of Cape Town confirmed that S 23(1) relates to the relationship
between the worker and the employer, and that the continued relationship between the worker and
employer is based on terms that are fair to the employee.
Quiz Answers
1. False. The right to fair labour practices applies to every worker, employer, trade union and employers’
organization.
2. True. S22 - right to choose a trade, occupation and profession freely; S9 -equality clause; S10 - right to
human dignity; S27 - right of access to health services and social security; S14 - the right to privacy;
and S33 - the right to just and procedurally fair administrative action also impact labour relations.
3. True. It is S36(1) of the Constitution.
4. False. The High Court, Supreme Court of Appeal and the Constitutional Court have the power to
develop the common law.
5. True.
6. False. The court confirmed that S 23(1) relates to the relationship between the worker and the employer,
but that the continued relationship between the worker and employer is based on terms that are fair to
both.

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Individual Labour Law

This week we consider the development of labour legislation in South Africa,

We have a look at the theoretical principles in respect of Section 23 of the

• Provide the theoretical as well as the practical importance of the limitation of

Tahilah has recently entered into a contract of employment with Rock-P-

She wishes to form a trade union; however, her contract of employment

1. Which of Tahilah’s rights are being violated in this case study?

3. Which other forms of prohibited conduct by employees will constitute an

(1) Everyone has the right to fair labour practices.

(2) Every worker had the right

(6) National legislation may recognise union security

3. Critically discuss the meaning of “everyone” as referred to in Section 23 of the Constitution.

4. Discuss collective bargaining and the duty to bargain.

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