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MRL 3702- LABOUR LAW NOTES
STUDY UNIT 1- INTRODUCTION
- Labour law comprises:
1. Individual labour law – deals with the formation, content and termination of the
employment relationship. Employment relationship exists between two single entities eg. one
single employer and one single worker
2. Collective labour law- focuses on relationships on a collective level. Ie. a number of people
acting together (collectively) to influence this relationship. looks at groups. Eg. May act
collectively by way of trade unions and employer’s organisations
- Labour law deals with relationships:
Between employer and worker is called employment relationship. Basis of relationship is
contract of employment
Between an employer and trade union called a collective bargaining relationship (collective
bargaining can also exist betw employers organisation and trade union)
Between trade unions and workers called a membership relationship. Worker becomes a
member of the trade union ito the union's constitution. Also a membership relationship
between a single employer and an employer's organisation
State has relationships with all its citizens
- Sources of labour law: Constitution, international labour standards set by the ILO (The
International Labour Organisation), labour legislation, (for example the Labour Relations Act,
the Basic Conditions
of Employment Act, and the Employment Equity Act), collective agreements, the common law
and the contract of employment.
STUDY UNIT 2- CONTRACT OF EMPLOYMENT
- What is a contract of employment? is a voluntary agreement between two parties, in terms of
which one party (the employee) places his or her labour potential at the disposal and under the
control of the other party (the employer) in exchange for some form of remuneration
- definition of an employee is important because most protective labour legislation (such as
LRA & BCEA) apply only to employees (as opposed to independent contractors). An
independent contractor is someone who works for his own account for example a dentist with
his own practice. If the dentist works at a hospital and earns a salary from the hospital he will
qualify as an employee.
- Definition of an employee ‘any person excluding an independent contractor who works for
another person or the State and receive or is entitled to receive remuneration & any other
person who in any manner assists in the carrying on or conducting the business of an
employer’
- Know difference between an employee and an independent contractor. Courts have
developed certain tests to help to clarify the concept of ‘employee’
□the control test,
□the organisation test,
□the dominant impression test
- Element of control has been reduced to the right of the employer to control the
employee. Is one of the elements which the court will use to decide whether the contract
is, in fact, a contract of employment
Activity:
1. What is the purpose of the statutory presumption of section 200A of the Labour Relations
Act,1995?
to protect vulnerable workers
2. List seven factors that will lead to the presumption that a worker is an employee.
the manner in which the person works is subject to the control or direction of another person;*
the person’s hours of work are subject to the control or direction of another person*
in the case of a person who works for an organisation, the person forms part of that organisation;*
the person has worked for that other person for an average of at least 40 hours per month over the last
three months;
the person is economically dependent on the other person for whom he or she works or renders services;
the person is provided with tools of trade or work equipment by the other person; or
the person only works for or renders services to one person.
3. Must all these factors be present before a worker will be presumed to be an employee?
No, only one or more of the factors must be present for the presumption to apply to the employment
relationship.
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MRL 3702- LABOUR LAW NOTES
STUDY UNIT 1- INTRODUCTION
- Labour law comprises:
1. Individual labour law – deals with the formation, content and termination of the
employment relationship. Employment relationship exists between two single entities eg. one
single employer and one single worker
2. Collective labour law- focuses on relationships on a collective level. Ie. a number of people
acting together (collectively) to influence this relationship. looks at groups. Eg. May act
collectively by way of trade unions and employer’s organisations
- Labour law deals with relationships:
Between employer and worker is called employment relationship. Basis of relationship is
contract of employment
Between an employer and trade union called a collective bargaining relationship (collective
bargaining can also exist betw employers organisation and trade union)
Between trade unions and workers called a membership relationship. Worker becomes a
member of the trade union ito the union's constitution. Also a membership relationship
between a single employer and an employer's organisation
State has relationships with all its citizens
- Sources of labour law: Constitution, international labour standards set by the ILO (The
International Labour Organisation), labour legislation, (for example the Labour Relations Act,
the Basic Conditions
of Employment Act, and the Employment Equity Act), collective agreements, the common law
and the contract of employment.
STUDY UNIT 2- CONTRACT OF EMPLOYMENT
- What is a contract of employment? is a voluntary agreement between two parties, in terms of
which one party (the employee) places his or her labour potential at the disposal and under the
control of the other party (the employer) in exchange for some form of remuneration
- definition of an employee is important because most protective labour legislation (such as
LRA & BCEA) apply only to employees (as opposed to independent contractors). An
independent contractor is someone who works for his own account for example a dentist with
his own practice. If the dentist works at a hospital and earns a salary from the hospital he will
qualify as an employee.
- Definition of an employee ‘any person excluding an independent contractor who works for
another person or the State and receive or is entitled to receive remuneration & any other
person who in any manner assists in the carrying on or conducting the business of an
employer’
- Know difference between an employee and an independent contractor. Courts have
developed certain tests to help to clarify the concept of ‘employee’
□the control test,
□the organisation test,
□the dominant impression test
- Element of control has been reduced to the right of the employer to control the
employee. Is one of the elements which the court will use to decide whether the contract
is, in fact, a contract of employment
Activity:
1. What is the purpose of the statutory presumption of section 200A of the Labour Relations
Act,1995?
to protect vulnerable workers
2. List seven factors that will lead to the presumption that a worker is an employee.
the manner in which the person works is subject to the control or direction of another person;*
the person’s hours of work are subject to the control or direction of another person*
in the case of a person who works for an organisation, the person forms part of that organisation;*
the person has worked for that other person for an average of at least 40 hours per month over the last
three months;
the person is economically dependent on the other person for whom he or she works or renders services;
the person is provided with tools of trade or work equipment by the other person; or
the person only works for or renders services to one person.
3. Must all these factors be present before a worker will be presumed to be an employee?
No, only one or more of the factors must be present for the presumption to apply to the employment
relationship.
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