Labour Rights in the Constitution

The Constitution contains a Bill of Rights, Chapter Two, which enshrines the rights of all South Africans. The following labour rights are enshrined in the Constitution:

• Section 18: Freedom of Association
• Section 23: Labour Relations
• Everyone has the right to fair labour practices;
• Every worker has the right to form and join a trade union and to participate in the union’s activities;
• Every worker has the right to strike
• Every employer has the right to form and join an employers’ organization and to participate in the activities of the organization; and
• Every trade union, employers’ organization and employer has the right to engage in collective bargaining. 

The sources of labour law

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• The Unemployment Insurance Act 30 of 1996 (UIA) [NB: This law has been repealed and replaced by the Unemployment Insurance Act, 2001  ]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.