ABV UNIT 3 Final Summary
ABV UNIT 3 Final Summary
ABV UNIT 3 Final Summary
4)
Outcomes:
1. Demonstrate understanding of international labour policies and standards.
2. Apply and describe the legislative framework governing relations between the employer and
employee.
International labour organisation
• Governments are regulated by universally accepted standards supplied by various conventions
and recommendations of the ILO which are ratified and implemented by member countries.
• Recommendations and conventions have been passed concerning almost every aspect of the
employment relationship. For the present purpose we are concerned only with those which
establish the basic principles for the conduct of the relationship. These are:
o Declaration of Philadelphia
o Convention 87 concerning the Freedom of Association and Protection of the Right to
Organise
o Convention 98 concerning the Application of the Principles of the Right to Organise and
Bargain collectively
PART 2 affirms the ideological premise of the ILO, i.e., ‘all human beings, irrespective of race, creed
or sex, have the right to pursue both their material wellbeing and their spiritual development in
conditions of freedom and dignity, of economic security and equal opportunity
PART 3: is more specific in that it sets ILO the task of promoting full employment and raising the
standard of living of all people.
• This should be achieved by:
o promoting training
o facilitating the transfer of labour
o setting policies regarding wages and conditions of service
o recognising the right to collective bargaining
o promoting cooperation between management and labour to improve productive efficiency
o encouraging collaboration between workers and employers in deciding on social and
economic measures
o establishing social security measures
o instituting comprehensive medical care
o protecting the life and health of workers
o making provision for child welfare and maternity protection
o making provision for adequate cultural facilities for all employees
Convention No 87 Concerning the Freedom of Association and Protection of the Right to Organise
• Convention No 87 enlarges on one of the founding statements of the Declaration of Philadelphia,
namely that ‘… freedom of association and expression are essential for sustained progress’.
• Recommends and safeguards against anti-union discrimination such as:
o Employers and employees have the right to join any organization of their choice without any
previous authorization.
o Trade unions and employers’ organisations may draw up their own constitution, rules, elect
representatives freely, to organise their administration and activities and to formulate their
programmes.
o Governments, i.e., public authorities shall refrain from any interference which would restrict
this right or impede the lawful exercise thereof (not to interfere with organisations)
o Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by
administrative authority.
o Employers, employees, and their organisations to respect law of land
o Law shall not be such to impair these organisations or implied as to impair.
o Members of ILO to take steps to ensure employers and employees exercise their right to
organize freely.
Convention No 98 Concerning the Application of the Principles of the Right to Organise and to
Bargain Collectively
• Offers protection against anti-union discrimination such as prohibiting acts which have the effect
to:
o Make an employee or prospective employee agree not to join a union or to give up union
membership.
o Allow an employer to dismiss an employee or otherwise prejudice him/her because of union
membership or because of participation in union activities.
o Promote the establishment of workers’ organisations under the domination of employers or
employers’ organisations.
o Allow employers to support workers’ organisations by financial or other means.
There are other sections in the ‘Bill of Rights’ which will affect labour relations and labour
legislation. The following are examples:
o Section 9 - Equality: You cannot be discriminated against, however affirmative action and
fair discrimination are permissible
o Section 10 - Human dignity: Your dignity must be respected and protected. e.g Workplace
Conditions
o Section 14 – Privacy: You cannot be searched or have your home or possessions searched.
o Section 16 - Rights to freedom of speech and expression: All people (including the press)
can say whatever they want. e.g Whistleblowing, right to Information and Collective
Bargaining.
o Section 17 - Assembly, demonstration, picket & petition: You can hold a demonstration,
picket and present a petition. But you must do this peacefully
o Section 18 - Freedom of Association: You can associate with whomever you want to.in the
LR perspective this includes the right to form and join a union/employers organisation, right
to strike and collective bargaining.
• Because these rights are entrenched in the Constitution, all labour legislation and actions and
processes in labour relations should be evaluated in this context. If a law or a provision in a law
negates any of these rights, it may be challenged in the Constitutional Court.
Employment contract= The first step in determining the existence of an employment relationship
between the employer and employee
Existence of contracts:
• An employment contract comes into existence when both parties agree that the employee will
work for the employer.
• A contract may be written, verbal, or it may be understood.
• If no written or verbal agreement has been made, it does not mean that there is no contract.
• The very fact that one person is working for another means that a contract exists.
• Usually, the parties will agree on the kind of work required and on the wage to be paid by the
employer.
• Where this has not been spelt out, the parties can rely on accepted practice.
• For example, an employer who hires a labourer but does not indicate how much he will pay him
will be expected to remunerate him in terms of common practice – that is, he should pay the
rates commonly paid for work of that kind.
• When no definite period of employment is stated, it is taken that the employment is indefinite.
• This is the difference between a permanent and a fixed-term contract
Voidable contracts
A voidable contract binds one party, and the other party has the option to change their mind. This
means they can cancel the contract anytime they want. The party is therefore not bound by the
contract has the control in this type of contract. A mutual mistake on the part of both parties to a
contract makes it voidable. If one or more pieces of material information are omitted from the
contract, that also makes it voidable. A contract involving a minor is one example of a voidable
agreement. Examples of conducts which render a contract voidable are misrepresentation, coercion
and undue influence.
Contracts are also voidable where the consent of one party has been improperly obtained by:
✓ misrepresentation: a false or misleading statement of fact made during negotiations by one
party to another, the statement then inducing that other party to enter into a contract. The
misled party may normally rescind the contract.
✓ coercion: of persuading someone to do something by using force or threats
✓ undue influence: influence by which a person is induced to act otherwise than by their own free
will or without adequate attention to the consequences.
• For example, the contract of a person who declares in an application that he has previous
experience when he has none, can be cancelled by the employer. The contract can also be
declared void if one of the parties does not have contractual capacity – for example, is underage.
• Effect of voidable contracts on the validity of the employment contract- voidable contract is
initially considered legal and enforceable but can be rejected by one party if the contract is
discovered to have defects. If a party with the power to reject the contract chooses not to reject
the contract despite the defect, the contract remains valid and enforceable.
Breach of contract
• Breach of contract occurs in instances where one party fails to comply with the obligations of the
contract.
• An employer who has for five years paid his employees on the 15th of each month and who
unilaterally decides to pay them on the 25th may be held to be in breach of contract, even if
there is no specific provision for payment on the 15th.
• Section 77(3) of the Basic Conditions of Employment Act now also grants the Labour Court the
right to adjudicate on matters related to the contract of employment, including alleged breach of
contract.
• Material and less forms of breach of contract:
✓ Material e.g., theft, harassment, fraud, violence
✓ Less serious e.g., late coming
• Common law
o Common law tests (to determine if an employee contract exists)
✓ Control test: when a principal has the right to supervise and control the work to be
done, the relationship between the parties would be one of employment.
ꟷ Does the person obey the lawful and reasonable commands, orders or instructions
of the employer or the employer‘s personnel (e.g. managers or supervisors) as to the
manner in which they are to work?
ꟷ The higher the degree of control and supervision, the higher the chances that a
person is an employee. (An employment contract needs the employer to not only
define the work but also control how it's done.)
✓ Organisational test:
ꟷ Does the person form part of the organisation?
ꟷ Control over the work. For example, if someone controls when you work, where you
work and how you work, it is more likely that you are a worker and not an
independent operator.
ꟷ Tests how integrated the person is in the organisation structure.
✓ Dominant impression test:
ꟷ The weighing-up of a number of factors against one another
ꟷ The factors considered are not exhaustive and the courts have held that there is no
single factor that is decisive in determining the existence of a contract of
employment.
ꟷ This test emphasizes that no single factor can determine employment status -all
aspects of the work arrangement are weighed together to make a decision.
a) if the object of the contract was for the performance of specified work or a specified result, it
would be an indication that the person is an independent contractor
b) If the person rendering the service was subject to the supervision and control of the employer or
was obliged to render the service personally, it would be indicative of an employment contract
c) The court further considered when the relevant contract would terminate. If it terminated on the
death of the person rendering the service, that would be an indication that the person was an
employee.
A fixed-term employee, like other employees, can also claim that he was unfairly dismissed if:
• he resigned because employer made it impossible for him to continue
• his contract was transferred to another employer and the new conditions of service are
‘substantially less favourable than those with the previous employer.
Protection to vulnerable employees (s198B of the LRA):
LRA provides increased protection for employees earning below earnings threshold (R241,110.59 per
year or R20,093 per month) in cases involving fixed-term contracts, part-time contracts, or services
provided by TES (labour brokers). Employee cannot be employed for a period exceeding 3 months,
should that occur the employer will have to justify his reasons such as:
• Employee is replacing an employee who is temporarily absent
• Due to increased workload (shouldn’t last longer than 12m)
• Employee is a seasonal worker
• Employee is employed to work on a project that had a limited or defined duration
• Employee is a student or recent graduate who is employed to gain experience before entering
the job market
• Employee is a non-citizen who has been granted a work permit for a specified period
• Employed in an official public works scheme or similar job creation initiative
• Employee is past normal or agreed retirement age
• Employee is performing work which is funded by an external agency.
✓ Any contract with vulnerable employees which exceeds 3 months and does not conform to the
above conditions will be regarded as a permanent contract irrespective of the wording in the
contract.
✓ Where a fixed-term contract has been extended to two years or more the employee must be
given retrenchment pay when the contract ends unless the employer has been able to find him
a similar position commencing immediately thereafter.
Other:
Working hours o Max working hours are 45h per week
o Maximum 9h per day if employee works 5d a week or
o 8h per day if employee works more than 5d a week
o Meal breaks are not included in the 45 HRS
Overtime o Overtime can only be worked by agreement between employer and employee
o Limited to 10h per week or 3h per day
o Can be increased to 15h per week for period of 2m by agreement
o Payment will be 1.5x the normal wage rate
Sunday work o Remunerated 2x normal wage rate for each hour worked
o Unless he ordinarily works on a Sunday, in which case he must be remunerated at 1.5x his
normal wage rate for each hour worked
Public holidays o No employer may require employee to work on public holidays (except with agreement)
o If public holiday falls on a day on which the employee would ordinarily work then if he works
on that public holiday he is entitled to be paid at least 2x his normal wage rate for the day, or if
he does not work, he is entitled to have the day off and be paid his normal wage rate for the
day.
Notice of termination
• The BCEA stipulates further that notice of termination of a contract of employment must be
given in writing except when it is given to or by any illiterate employee.
• Notice of termination of employment, when given by the employer, must not be given during
any period of leave to which the employee is entitled, and may not run concurrently with any
period of leave to which the employee is entitled, except sick leave.
• E.g., if an employer dismisses an employee, and the employee has annual leave due to him,
the employer may not require that the dismissed employee take the outstanding annual leave
during the period of notice. The employer is required to pay the employee for this leave.
However, should the employee require sick leave during a period of notice, and he/she has sick
leave days available, then the employee is entitled to take paid sick leave during a period of
notice.
S37 of the BCEA: A contract of employment may be terminated on notice of not less than:
(a) 1 week, if the employee has been employed for 6m or less
(b) 2 weeks, if the employee has been employed for more than 6m but not more than 1y
(c) 4 weeks, if the employee has been employed for 1y or more or is a farm worker or domestic
worker who has been employed for 4w or more
Question 1: Draft an employee termination letter. Ethan Hunt got dismissed for unethical conduct,
breach of contract, and sexual misconduct (10)
Question 4: List the common law duties of the employer and employee (8)
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