South African Labour Law Practice Flashcards

Flashcards covering the foundational principles of South African Labour Law including the BCEA, LRA, types of dismissal, equality and non-discrimination, collective bargaining, and strike actions.

Basic Conditions of Employment Act (BCEA)

Legislation that aims to advance economic development and social justice by establishing and enforcing minimum employment standards, particularly for unorganized and vulnerable employees.

Labour Relations Act (LRA)

The statute that governs the relationship between employers, employees, and trade unions, with a specific focus on collective bargaining and dispute resolution.

Essentialia of an Employment Contract

The fundamental elements defining a contract as one of employment: the agreement to perform work and the agreement on remuneration (which must be reasonably ascertainable).

Dominant Impression Test

The standard test used by courts to determine the status of a worker by assessing various factors, such as the employer's right of supervision, payment method, and the worker's economic dependence.

Statutory Presumption Threshold

Individuals earning below $R269,600.90$ per annum are rebuttably presumed to be employees if they meet specific criteria, such as working an average of at least $40\,hours$ per month.

Kylie v CCMA

A Labour Appeal Court case which held that sex workers (prostitutes) can be considered employees under the LRA and the Constitution for the purpose of protection against unfair dismissal.

Calculation of Ordinary Working Hours

Under Section 9 of the BCEA, the maximum is set at $45\,hours$ per week, comprising no more than $9\,hours$ per day for a five-day week or $8\,hours$ per day for a week exceeding five days.

Overtime Remuneration

The requirement that employers pay an employee at least $1.5$ times their ordinary hourly rate for overtime, or provide $30\,minutes$ of paid time off for every hour of overtime by agreement.

Compressed Working Week

A written agreement allowing an employee to work up to $12\,hours$ per day without overtime pay, provided the total ordinary hours do not exceed $45\,hours$ per week.

Maternity Leave Entitlement

An employee is entitled to at least $4\,consecutive\,months$ of leave, which can commence up to $4\,weeks$ before the expected date of confinement.

Constructive Dismissal

A situation where an employee terminates the contract (resigns) because the employer's conduct made the continued employment intolerable.

Substantive Fairness

Relates to the validity of the reason for dismissal, which the LRA identifies as misconduct, incapacity, or operational requirements.

Procedural Fairness

Relates to the process followed during a dismissal, including whether the employee was given a prior warning and a hearing in cases of misconduct.

Automatically Unfair Dismissal

Defined under Section 187 of the LRA, these are dismissals for reasons that the employer cannot prove to be fair, such as pregnancy, unfair discrimination, or exercising rights like freedom of association.

Inherent Requirement of the Job

An exception to unfair discrimination where a specific characteristic (e.g., physical fitness for an airline pilot) is essential for the performance of the job.

Formal vs. Substantive Equality

Formal equality treats everyone the same regardless of individual circumstances, while substantive equality recognizes that affirmative action is needed to correct imbalances caused by group-based disadvantage.

Yellow Dog Clause

An illegal contractual provision where an employee agrees never to join a trade union in exchange for continued employment.

Agency Shop Agreement

A collective agreement that requires an employer to deduct an agency fee from non-union members to prevent 'free riders' who benefit from union-negotiated gains.

Collective Agreement

A legally binding written agreement regarding terms and conditions of employment between one or more registered trade unions and one or more employers or employers' organizations.

Right to Disclosure of Information

A core organizational right where employers are obligated to share certain data with registered trade unions to facilitate effective collective bargaining.

Strike (Section 213 LRA)

A concerted refusal to work or the retardation/obstruction of work by employees for the purpose of remedying a grievance or resolving a dispute of mutual interest.

Protected Strike

A strike that is not prohibited by Section 65 and has followed valid procedures (conciliation and notice), shielding employees from civil liability and dismissal.

Secondary Strike

A strike in support of a primary strike against a different employer, provided the primary strike is protected and specific notice requirements are met.

Protest Action (Section 77 LRA)

A concerted refusal to work intended to promote or defend the socio-economic interests of workers, distinct from the purpose of a standard strike.

Lockout

An industrial action initiated by management where the employer denies employees access to the workplace during a labor dispute.

Commission for Conciliation, Mediation and Arbitration (CCMA)

A mandatory body for the initial referral of all labor disputes to facilitate resolution through conciliation before moving to arbitration or the Labour Court.