Mercantile Law 193 Labour Law
Chapter 1
Introduction:
Labour law deals with the tri-partite relationship between the state, employers and
employees. Essentially labour law regulates the practice of working.
Labour law is dynamic as its content changes continuously.
It is influenced by social, economic, financial and political factors.
Labour law influences the social, economic, financial and political decisions.
Employee/Employer relationship based on the employment contract
regarded as a species of the contract of lease. The principle of freedom of
contract is an important factor.
Principle of freedom of contract has shortcoming. Why?
There is no real freedom of contract where one of the parties (employer) is in
a stronger bargaining position than the other party (employee).
The employer traditionally had the authority to dismiss the employee on
notice for any reason.
Five fairness mechanisms to protect employees:
1. BCEA
2. Provision for collective bargaining whereby trade unions negotiate better working
conditions.
3. Protection against unfair dismissal-LRA. Employer must follow procedure and provide
a valid reason for dismissal.
4. Protection against unfair labour practices-LRA. Employer may not act unfairly
regarding the employment relationship not concerning dismissal.
5. Protection against discrimination-EEA. Prohibits unfair discrimination on arbitrary
grounds e.g. sex, race etc. and ensures equal opportunities for all through affirmative
action.
Distinguish between individual and collective labour law:
Individual labour law deals with legal rules concerning the individual relationship
between the employer and the individual employee. E.g. Employment contact can be
concluded and terminated on an individual basis.
Collective labour law deals with the collective relationship between the collective
entities namely the employer and trade union, or between one or more employers
and one or more trade unions. E.g. Collective bargaining, strikes etc.
Distinguish between labour law and labour relations:
Labour relations refers to the relationship between the employer and employees
Labour law refers to the legal rules that govern these relationships.
1
Chapter 1
Introduction:
Labour law deals with the tri-partite relationship between the state, employers and
employees. Essentially labour law regulates the practice of working.
Labour law is dynamic as its content changes continuously.
It is influenced by social, economic, financial and political factors.
Labour law influences the social, economic, financial and political decisions.
Employee/Employer relationship based on the employment contract
regarded as a species of the contract of lease. The principle of freedom of
contract is an important factor.
Principle of freedom of contract has shortcoming. Why?
There is no real freedom of contract where one of the parties (employer) is in
a stronger bargaining position than the other party (employee).
The employer traditionally had the authority to dismiss the employee on
notice for any reason.
Five fairness mechanisms to protect employees:
1. BCEA
2. Provision for collective bargaining whereby trade unions negotiate better working
conditions.
3. Protection against unfair dismissal-LRA. Employer must follow procedure and provide
a valid reason for dismissal.
4. Protection against unfair labour practices-LRA. Employer may not act unfairly
regarding the employment relationship not concerning dismissal.
5. Protection against discrimination-EEA. Prohibits unfair discrimination on arbitrary
grounds e.g. sex, race etc. and ensures equal opportunities for all through affirmative
action.
Distinguish between individual and collective labour law:
Individual labour law deals with legal rules concerning the individual relationship
between the employer and the individual employee. E.g. Employment contact can be
concluded and terminated on an individual basis.
Collective labour law deals with the collective relationship between the collective
entities namely the employer and trade union, or between one or more employers
and one or more trade unions. E.g. Collective bargaining, strikes etc.
Distinguish between labour law and labour relations:
Labour relations refers to the relationship between the employer and employees
Labour law refers to the legal rules that govern these relationships.
1
