Labour Law Rules! Third Edition

Marie Mcgregor

Description

Labour Law Rules! is a book designed primarily as an introductory text for students encountering labour law for the first time, whether their goal is a law degree or some other discipline involving a basic knowledge of the labour relations regulatory regime in South Africa. In the past two years, since publication of the first edition of Labour Law Rules!, some significant events took place which impacted on labour law, resulting in a number of changes proposed to reform labour law. The new edition of Labour Law Rules! aims to lay a sound and up to date foundation of basic labour law rules which will enable students to be empowered to assist in shaping the future working environment and laws of the country. The second edition of the bestselling text book Labour Law Rules! continues to provide a highly accessible text on labour, equity, social security, skills development and related laws, fully updated to include the latest changes and amendments in labour law in South Africa. It discusses these laws against the backdrop of South Africa as a member state of the ILO and the economic and socio-economic context in the country.

Sujets

• Droit et juridique

Informations

• Publié par: Siber Ink Publishers
• Date de parution: 17 novembre 2017
• Nombre de lectures: 0
• EAN13: 9781928309208
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Dedicated to our students

First published 2012
Second edition 2014
Third edition 2017 by

Siber Ink CC
PO Box 30702
Tokai 7966
Cape Town
SOUTH AFRICA
www.siberink.co.za © Siber Ink CC
ISBN 978-1-928309-13-0      (book format)
ISBN 978-1-928309-14-7      (pdf format)
ISBN 978-1-928309-20-8      (ePub format)
This book is copyrighted under the Berne Convention. In terms of the Copyright Act 98 of 1978 no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher.
Typesetting and index by GJ du Toit
Cover design by Nic Jooste, nicdesign
Printed and bound by Tandym Print, Cape Town
Foreword
This now well established labour law text has been updated to reflect the law as of September 2017. LABOUR LAW Rules! is recognised as an accessible legal text on labour, equity, social security and skills development laws. New commentary dealing with transfers of contracts of employment when a business is sold as a going concern or in circumstances of insolvency has been added. The text reflects recent statutory and other developments, and current debates. Cases and other examples are used to explain legal principles.
This thoroughly updated Third Edition renders it completely current, with reference to the latest in legislation and case law.
The book successfully lays a sound basis for basic labour law. Moreover, it enables students to integrate various concepts and sources in order to develop critical analytical skills. In this way, the book enables emerging scholars to assist in shaping future workplace laws. The book can also be used gainfully by IR and HR practitioners, line managers, supervisors, commissioners, arbitrators, union officials or anybody interested in getting a basic overview of the labour law landscape.
The innovative approach again breaks new ground in the accessible dissemination of labour law. As a teacher and practical user of labour law in my policy and professional work, I am delighted to endorse and recommend this book. I have no doubt that all readers will enjoy using it and find it practical and helpful.
E VANCE K ALULA
President: International Academic Programmes Office (University of Cape Town)
Director: Confucius Institute — University of Cape Town
President: International Labour and Employment Relations Association (ILERA)
Preface
‘The expert in anything was once a beginner.’
(African proverb)
This rings true for any new field of study. The journey to explore a dynamic field such as labour law is highly rewarding. The concepts of work and workplaces and their challenges are well known. Not everyone, however, understands the underlying rules and their correct application.
This book contains a basic discussion and is an essential tool for any keen reader on the topic.
It is crucial that everyone has a basic knowledge of the subject today since all employers and workers are affected by these laws.
The main labour laws, namely, the Basic Conditions of Employment Act, 1997, the Labour Relations Act, 1995, the Employment Equity Act, 1998 and other laws related to social security such as the Occupational Health and Safety Act, 1993 had been revised over the last couple of years. Moreover, new laws such as the Employment Tax Incentive Act, 2013 and the Employment Services Act, 2014 had been enacted.
The effects of these amendments and new laws are coming through by case law and pose challenges in practise and hence the need for a third edition of LABOUR LAW Rules!
The book is still aimed mainly as a teaching tool for students — legal and non-legal — who encounter labour law for the first time in their studies. It may also be useful for IR and HR practitioners and consultants, line managers, supervisors, CCMA commissioners, union officials, bargaining council and private arbitrators or anybody interested in getting a basic overview of the current labour law landscape in South Africa.
The book continues to lay a sound basis of labour law rules which will enable students to move to the next level of integrating various legal concepts in order to develop critical and analytical skills, necessary in law.
The text reflects materials available to us at September 2017.
As always our sincere gratitude goes to Simon Sephton of Siber Ink and to Gawie du Toit.
M ARIÉ McG REGOR and A DRIETTE D EKKER : Editors
Pretoria
September 2017
Details of authors
• Marié McGregor BLC ( cum laude ) (UP) LLB (Unisa) LLM AIPSA Dip (UP) LLD (Unisa)
Professor Extraordinarius, Unisa; co-author of General Principles of Commercial Law (JUTA: 2004, 2007) and Law@work (LexisNexis: 2008, 2012, 2015, 2017); formerly practising attorney of the High Court of South Africa; Deputy-Director, National Manpower Commission; Professor of Law, Department of Mercantile Law, Unisa
• Adriette Dekker BLC ( cum laude ) LLB (UP) Advanced Diploma (Labour Law) (UJ) LLM LLD (Unisa) Advanced Diploma Alternative Dispute Resolution (AFSA/UP)
Practising attorney, conveyancer and notary of the High Court of South Africa; co-author of Social Security Law: A Comparative Analysis (LexisNexis: 2006) and Essential Labour Law (Labour Law Publications: 2009); formerly Professor of Law, Department of Mercantile Law, Unisa; NRF rated researcher (2009-2014)
• Mpfariseni Budeli-Nemakonde LLB LLM ( cum laude ) (Unin) PhD (UCT) Professor of Law and Head: Department of Mercantile Law, Unisa; NRF rated researcher; admitted attorney of the High Court of South Africa; member of the ILO Network of Experts on Workers’ Right to Freedom of Association; contributor to SM Kierkegaard (ed) Private Law and Practice: Critical Analysis and Legal Reasoning [IAITL: 2012, 2013]; NDST Distinguished Young Women: Social Sciences and Humanities Award (2013)
• Wilhelmina Germishuys-Burchell BCom LLB (UP) LLM (Unisa) Advanced Labour Law Certificate (Centre for Business Law Unisa) Advanced Diploma Alternative Dispute Resolution (AFSA/UP)
Senior Lecturer, Department of Mercantile Law, Unisa; practising attorney, conveyancer and notary of the High Court of South Africa; Lecturer at Centre for Business Law, Unisa
• Ernest Manamela BProc LLB (Unin) LLM LLD (Unisa)
Associate Professor, Department of Mercantile Law, Unisa; co-author of General Principles of Commercial Law (JUTA: 2010, 2015); formerly at the Collective Bargaining Division of the Department of Labour; Advocate of the High Court of South Africa
• Tukishi Manamela BProc LLB (Unin) LLM LLD (Unisa)
Associate Professor, Department of Mercantile Law, Unisa; Advocate of the High Court of South Africa; co-author of General Principles of Commercial Law (JUTA: 2010, 2015)
• Clarence Tshoose LLB LLM (NWU) LLD (Unisa) Certificate in Economic, Social and Cultural Rights (Geneva Academy of International Humanitarian Law & Human Rights)
Senior Lecturer, Department of Mercantile Law, Unisa; contributor to SM Kierkegaard (ed) Private Law: Rights, Duties and Conflicts [IAITL: 2010] and SM Kierkegaard (ed) Law and Practice: Critical Analysis and Legal Reasoning [IAITL: 2013]; Chairperson of Unisa Flagship Committee Socio-economic Rights (2013-2014); formerly Lecturer at NWU (Mafikeng Campus); Postgraduate Researcher at UJ Faculty of Law, Centre for International and Comparative Labour and Social Security Law (CICLASS)
Contents
Only the parts and chapters are listed here. A detailed table of contents is given at the start of each chapter.

Foreword
Preface
Details of authors
Part I INTRODUCTION TO LABOUR LAW
1. General overview of labour law
Part II RULES APPLICABLE DURING THE COURSE OF EMPLOYMENT
2. Exclusive protection for employees in terms of legislation
3. The impact of the common law on the contract of employment
4. Basic Conditions of Employment Act (BCEA)
5. Employment Equity Act (EEA)
6. Protection against unfair labour practices under the Labour Relations Act (LRA)
7. Social security legislation
8. Transfer of a business as a going concern
Part III RULES APPLICABLE TO THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP
9. Termination of the contract of employment: Definition of dismissal and automatically unfair dismissal
10. Fair and unfair dismissals, and dispute resolution
Part IV RULES APPLICABLE TO COLLECTIVE LABOUR LAW
11. Freedom of association, trade unions’ and employers’ rights
12. Collective bargaining
13. Workplace forums
14. Strikes and lock-outs
15. Pickets and protest action
Part V ANNEXURES
A. Form EEA1
B. LRA Form 7.11
C. Code of Good Practice: Dismissal
Index
BIRD’S-EYE VIEW: LABOUR LAW Rules! The impact of labour law on the various stages of the employment relationship
Part I
Introduction to labour law
Labour law deals with the legal consequences flowing from the employment relationship. It regulates both the individual and collective employment relationship. The individual employment contract is concluded between one employer and one employee. The collective relationship exists between one or more employers, and more than one employee. Employers may act collectively by way of employers’ organisations, and employees may join trade unions which may represent them in the collective labour arena.
The contract of employment forms the basis of the relationship between the employer and employee yet the principles of the law of contract apply only to a limited extent to this relationship. Labour law is protective and softens the principles of the law of contract as far as the employment relationship is concerned.
In an employment contract the employer is in a stronger bargaining position than the employee and can dictate the terms and conditions of the contract of employment to a large extent. The employer, ultimately, has the weapon of dismissal at its disposal. Kahn-Freund (a respected legal philosopher) said the following: 1

‘[T]he r