MRL3702_Labour_law_ exam notes

LABOURLAW EXAM NOTES Page 1 of 89 CHAPTER 1: OVERVIEW GENERAL: Labour law consists of two main components: 1. Individual labour law 2. Collective labour law INDIVIDUAL LABOUR LAW: • Includes topics such as the formation of the employment relationship, the content of therelationship, and the termination of the relationship. • The assumption here is that the employment relationship exists between two single entities i.e. between a single employer and a single employee COLLECTIVE LABOUR LAW: • Focuses on relationships on a collective level, in other words a number of people are actingtogether (collectively) to influence this relationship • Collective labour law looks at groups, for example collective entities such as trade unions and employer’s organisations THE MOST IMPORTANT LEGISLATION REGARDING LABOUR LAW IS: • Labour Relations Act 1995 (LRA) • Basic Conditions of Employment Act 1997 (BCEA) • Employment Equity Act 1998 (EEA) • Skills Development Act 1998 (SDA) • Occupational Health and Safety Act 1993 (OHSA) • Mine Health and Safety Act 1996 (MHSA) LABOURLAW EXAM NOTES Page 2 of 89 CHAPTER 2: EXCLUSIVE PROTECTION FOR EMPLOYEES IN TERMS OF LEGISLATIONWHAT IS AN EMPLOYMENT CONTRACT? The 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 thecontrol • of the other party (the employer) in exchange for some form of remuneration WHO IS AN EMPLOYEE? The LRA, BCEA, EEA and SEA all use the same definition of an “employee”, and employee is: (a) Any person, excluding an independent contractor, who works for another person or for theState and who receives, or is entitled to receive, any remuneration; and (b) Any person who in any manner assists in carrying on or conducting the business of an employer Part (a) of the definition includes both employees: • in the private sector (“who works for another person”) • and the public sector (“or for the state”) • the definition also includes domestic and farm workers as employees Part (a) incorporates the common-law contract of service (locatio conduction operarum) and excludes the contract of work (locatio conduction operis), which relates to the contract of work Part (b) includes any person who in any manner assists in carrying on or conducting the business of the employer, it should be noted that this part is couched in broader terms and can include various categories of workers, which complicates the matter as far as the distinction betweenan employee and independent contractor is concerned. Such categories include: • permanent employees • temporary employees • casual workers • contract workers • part-time employees • self-employed people • and others such as seasonal workers The difficulty in determining who qualifies as an employee and who does not has promptedthe courts to formulate various tests to distinguish between them, the various test are: LABOURLAW EXAM NOTES Page 3 of 89 • the control test, • the organisation test, and • the dominant impression test LABOURLAW EXAM NOTES Page 4 of 89 Control Test Organisation Test Dominant Impression Test The test looks at the control: • over the type of workthe person does, • the manner in which the work must be doneand • when the work must bedone This test looks at whether theperson is: • part and parcel of thebusiness • the person’s work is integrated into the business of the employer and not justan accessory to the business This test is favoured by thecourts and considers: • the employment relationship as a whole rather than concentrating on onefactor These tests help clarify the concept of “employee”, but were not sufficiently clear to solve a problem As a result, the LRA and BCEA were amended in 2002 to include rebuttable presumption as to whowould be regarded as an employee The presumption applies that as soon as one of the factors listed in section 200A of the LRA or section 83A of the BCEA, is found to exist in the relationship between two parties, there is presumedto be an employment relationship The other party then has the opportunity to show, on a balance of probabilities that no such relationship exists The presumption will however not apply: • to any person earning more than the amount determined by the Minister in terms of theBCEA, and • to a work arrangement involving persons who earn amounts equal to or below the amount determined by the Minister Section 200A of the LRA reads as follows: “Until the contrary is proved, a person who works for, or renders services to, any other person ispresumed to be an employee, if any one or more of the following factors are present: (a) manner in which the person works is subject to the control or direction of another person; (b) person’s hours of work are subject to the control or direction of another person; (c) the case of a person who works for an organisation, the person forms part of thatorganisation (d) person has worked for that person for an average of 40 hours per month over the last three months; (e) person is economically dependent on the person for whom he or she works or