The sources of South African labour law include:

• Legislation;
• Judicial precedent (judicial decisions), including arbitration awards;
• Collective agreements;
• Common law; and
• Custom and legal writings

Since the democratisation of South Africa after April 1994 the country’s labour law was amongst the first areas of law to be reformed.  The main employment law statutes of South Africa are the following:

• The Labour Relations Act 66 of 1995  (LRA) [ NB: this law was amended in 2002. Text of the Labour Relations Amendment Act, 2002. 
• The Basic Conditions of Employment Act  75 of 1997 (BCEA). [ NB: This law has also been amended in 2002 by the Basic Conditions of Employment Amendment Act 2002 ]
• The Employment Equity Act  55 of 1998 (EEA)
• The Skills Development Act  97 of 1998 (SDA)
• The Unemployment Insurance Act 30 of 1996 (UIA) [NB: This law has been repealed and replaced by the Unemployment Insurance Act, 2001  ]
• The Occupational Health and Safety Act  85 of 1993 (OHSA)
• The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).

Employment protection legislation applies to all employees who ordinarily work in South Africa.  Therefore, the legislation also covers employees who work partly outside South Africa and partly inside South Africa and outside the country.  It also applies regardless of the stated governing law of any employment contract or the nationalities of either the employee or the employer.  It is not possible for an employee to contract out of statutory employment protection unless the legislation specifically permits it and then, only to the extent permissible in terms of the legislation.  In many cases, the legislation is supported by codes of practice which may be statutory codes of practice drawn up by the National Economic Development and Labour Council (NEDLAC)  or non-statutory codes of practice issued by the Commission for Conciliation, Mediation & Arbitration (CCMA) .  These codes of practice, although often merely providing guidelines and accordingly not always being of direct legal effect, are taken into account by the Labour Courts in deciding whether or not an employer has breached statutory employment regulations.  Additionally, there are numerous laws implementing health and safety regulations.

Unlike the law in certain other countries, collective agreements are normally legally enforceable as between employers and trade unions.  The Labour Relations Act 66 of 1995, (“the LRA”) supports the primacy of collective agreements and emphasises the need for organised labour and business to regulate its relationship through the entering into of collective agreements which binds the employer, the union’s members, and, where the union represents more than 50% of the employees in a workplace and if such intent is stated, non-union members in the workplace.  

The Constitution guarantees the right to equality and also gives protection to all from unfair discrimination. It goes further by acknowledging that affirmative action measures are necessary to advance disadvantaged groups.  Furthermore, the Constitution requires laws to be enacted to prevent discrimination, including workplace discrimination. The legislature has since passed and implemented the Employment Equity Act to deal with unfair discrimination and workplace equality.

The Employment Equity Act

The purpose of the Employment Equity Act is to ensure workplace equity. It prohibits unfair discrimination in the workplace and guarantees equal opportunity and fair treatment to all employees. However, it recognises that, given the historical disparities, simply removing discrimination does not in itself result in substantive equality. The Act, therefore, imposes an obligation on certain employers ("designated employers") to implement affirmative action measures to advance "designated groups" (African, Indian and Coloured people, women, and people with disabilities).

A key requirement of the Employment Equity Act is the elimination of all barriers, particularly unfair discrimination, in the workplace.

What are barriers?  

A barrier exists where a policy, practice, or an aspect of the work environment limits the opportunities of employees because they are from designated groups. Examples of ‘barriers’ previously identified in comparative discrimination law include:

• the lack of role models from designated groups in senior positions in a corporation;
• the “glass-ceiling” for women, as manifested in the “old boys'' network; expectations of long working hours; and lack of childcare facilities or “career breaks”;
• job specifications that set requirements that are not essential for job performance (for example, a matric or university degree);
• workplaces structured according to the assumptions of a homogenous, white, male workforce. 

South African law does not prescribe minimum wages through statute. Usually, wages are fixed by the employer or by collective agreements, or by the employee’s contract of employment. 

Trade Union Regulation

The LRA sets out a procedure for the registration of trade unions and employer organisations. It allows a union that is independent, has a distinctive name, an address in the Republic and which has adopted a constitution that meets the requirements of the law, to make an application for registration. Unions and employer’s organisations are not obliged to register, but registration is a precondition for participation in the industrial relations system developed by the Act.

The registrar of labour relations has the discretion to refuse an application to register a trade union, in terms of the Act. However, this discretion is strictly controlled by the Act. The LRA also allows a trade union to appeal the decision of the Registrar to the Labour court.

Chapter 2 of the LRA sets out basic labour rights. Chief amongst these is freedom of association – the right of employees and employers to join and participate in the lawful activities of unions and employer organisations respectively.

On the employee’s side, the right to freedom of association protects against both interference, state interference, and union discrimination on the part of an employer. Now that the unfair labour practice remedy has been limited to individual employees, considerable union attention is now given to the anti-discrimination provisions contained in the LRA and the EEA.

The Constitution recognises the right to freedom of association, the right to form and join a trade union, and the right to participate in trade union activities.

The LRA gives recognition to organisational rights in Sections 12 and 13. It allows a registered union or a sufficiently representative union to-

• Enter an employer’s premises to recruit or communicate with members;
• Hold meetings with employees outside working hours;
• Conduct union elections or ballots at the workplace;
• Instruct the employer to make deductions of and pay over union membership subscriptions from member employees;
• Reasonable leave, including possible paid leave, for their office bearers.

Registered unions which have as members a majority of employees in a workplace have a further right to disclosure of all relevant information, which allows its representatives to perform their functions.

Item 2(1) of Schedule 7 of the LRA gives recognition to the notion of “residual unfair labour practices”. The Act defines the notion as any unfair act or omission which arises between the employer and employee and which involves –

• direct or indirect unfair discrimination on any arbitrary ground;
• unfair conduct of the employer relating to the promotion or demotion, training or benefits of the employee;
• unfair suspension of an employee or any other disciplinary action;
• failure or refusal of an employer to reinstate or re-employ an employee in terms of an agreement.

As with other disputes, those in relation to alleged unfair labour practices must first be referred to the CCMA for conciliation. If after conciliation the dispute remains unresolved, the parties may then refer the dispute to the labour court for adjudication or to arbitration, if it is so agreed by the parties. The Court has wide discretion and may determine the dispute on terms it deems or reasonable, including but not limited to the ordering of reinstatement or compensation.  

Collective Bargaining and Agreements

The LRA states that one of its central objectives is to promote collective bargaining as a means of regulating relations between management and employees and as a means of settling disputes between them.

The approach of the LRA is quite different from its predecessor. The collective dimension of the unfair labour practice jurisdiction has been effectively abolished and with it the duty to bargain. However, the institution of collective bargaining is unequivocally fostered, albeit down a different path. The object has been to create a statutory framework conducive to bargaining whilst preventing the judicial appropriation of politically sensitive terrain. The key bargaining-promoting measures include:

• organisational rights, which allow unions with a membership base to establish themselves in the workplace;
• the self-governance benefits flowing from participation and bargaining councils, particularly now that council agreements can override many of the restrictions imposed by the BCEA;
• the moral force of CCMA advisory awards under Section 64(2) in the event of the refusal to bargain;
• the socio-political leverage of NEDLAC, whose peak employer bodies cannot be seen to countenance a refusal by members to impress the collective bargaining ethic;
• The right to engage in a protected strike over an employer’s refusal to bargain.

The LRA fosters and rewards representative unionism. In other words, it promotes inter-union co-operation and union amalgamation. Only unions that are sufficiently representative in a workplace are entitled to organisational rights. Unions with majority membership are entitled to receive relevant information from the employer and to conclude collective agreements.

A collective agreement is a legally enforceable instrument and is negotiated by the parties usually concerning terms and conditions of employment or any other matter of mutual interest between the parties. The only formality in respective of collective agreements is that it must be reduced to writing. The agreements bind the parties to the agreement and their members. The agreement can also be extended to bind non-union members if the party union has majority membership within the workplace. Collective agreements will override the provisions of any inconsistent individual employment contracts and may also be concluded within bargaining councils and thus save as minimum wage and working conditions instruments.

Bargaining Councils have been established by the LRA and are by definition, statutory bodies that registered unions and employer organisations may voluntarily and co-operatively establish within a specific economic sector. They represent the center-piece of the system of bargaining fostered by the LRA.

Collective agreements are inclined to be time-bound, with a life span that is by and large determined by the parties’ bargaining cycles. However, the agreement can be terminated on reasonable notice by either party.

The right to strike is entrenched in Section 23 of the Constitution. Employers enjoy a reciprocal right to lockout, which is also constitutionally entrenched.

The LRA does regulate the right to strike and lockout. The LRA defines a strike as a partial or complete concerted refusal to work or the retardation or obstruction of work by employees of the same employer for the purpose of remedying a grievance or resolving a dispute in respect of a matter of mutual interest.

A lockout is defined as an exclusion by the employer of the employees from the employer’s workplace for the purposes of compelling the employees to accept a demand in respect of any matter of mutual interest.

Protected strikes and lock-outs are those which comply with the procedures as laid down in Chapter IV to the LRA, namely:

• the party to the dispute must first refer the dispute to the bargaining council with jurisdiction or if there is none, to the CCMA, for conciliation;
• if the dispute remains unresolved, a certificate of non-resolution must be obtained or alternatively, the party may wait for the statutory 30-day period to lapse;
• once the certificate has been obtained and/or the 30-day period has lapsed, the concerned party must then give the other party 48 hours' notice of the strike or lockout.

Effects of a Protected Strike or Lockout

The LRA extends strong protection to strikes and lockouts that comply with its provisions:

• Guarantees immunity from the reaches of the civil law i.e. they do not constitute a delict or breach of contract;
• An employer is not obliged to remunerate an employee for services not rendered during a strike;
• Employees are protected from dismissal.

Effects of Unp-Protected Strike or Lockout

The LRA has decriminalized non-compliance with the Act. However, other sanctions are imposed for non-compliance:

• The affected party can approach the Labour Court for an interdict or order restraining a strike or lockout.
• The Labour Court can also order the payment of just and equitable compensation in the circumstances.
• Participation in an unprotected strike may constitute a fair reason for dismissal.