The distinction between these two types of contracts is crucial, as the different legal consequences arise from the different forms of contract. More importantly, South African labour law only applies to workers who are entitled to social security benefits and who have access to legal mechanisms if they wish to seek redress for violations of their workers` rights. Similarly, only employers are bound by labour law and are liable in the name of the criminal acts of their employees. Very often, a recognition agreement in which the employer recognizes one or more trade unions as negotiating parties to a particular group of workers contains as an annex an agreed disciplinary code and an agreed disciplinary procedure. In this way, a disciplinary regulation and a disciplinary procedure have the status of a collective agreement. The conditions of employment provided for by the BCEA are the basic conditions of any employment relationship, unless other laws or conditions of the employment contract provide for more favourable conditions or the basic condition has been modified in relation to the BCEA. Collective agreements may also amend, where appropriate, the terms of employment contracts between employers and employees bound by them. Unjustified dismissals are now regulated by the Industrial Relations Act. Some have argued that the Industrial Relations Act compromises the flexibility required for the existence of the free market. [Citation needed] Others argued that restrictive labor laws promote safety, loyalty, and integration into companies. [Citation needed] Reduced to its core, the employment contract can now be defined as an agreement between two parties, in the sense of which one party (the employee) works for another (the employer) for remuneration.
While this definition may seem simple, it contains a number of important principles, aspects and implications. If taken into account below, the definition of the contract of employment may be extended as follows: (1) An employer and a registered trade union whose members are the majority of the employees employed by that employer in a workplace, or the parties to a collective agreement may conclude a collective agreement setting a threshold of representativeness necessary for one or more of the organisational rights referred to in Article 12. 13 and 15. Disputes concerning collective agreements (including closed contracts and agency contracts) must be submitted to the Conciliation, Mediation and Conciliation Commission. If the arbitration fails, either party to the dispute may submit the matter to arbitration. Exceptionally, the LRA provides for an appeal against an arbitral award of the Conciliation, Mediation and Arbitration Commission in this context. The arbitral award may be appealed to the Labour Court. [120] This does not mean that the employee normally has to work 45 hours a week. Normal working time is a matter of contractual agreement between the employer and the employee. Some employers work 40 hours a week and so on. The statutory limitation period of 45 hours per week means that the employee cannot work more than 45 hours per week normally. The lunch break is unpaid time and is the employee`s own time – he/she reads a book, goes shopping, etc.
because they are not paid for the lunch break. Posting of workers Posting of workers is a recognised practice in South Africa and can be carried out on the basis of an agreement between the worker, his employer and the entity to which he is posted. Depending on the particular circumstances of the posting, this may result in the employee being qualified as an employee of both employers involved in the posting. In practice, this freedom of dissociation is not so controversial. Even more controversial, the constitutions of some unions stipulate that the union has the right to refuse to admit a person as a member of that union, even if that person is eligible to join. A constitution may also provide for the exclusion of members. This becomes crucial if there is a closed workshop agreement, as refusing to join the union can mean losing a job. The Basic Conditions of Employment Act provides for four months of maternity leave, but does not require it to be paid. However, it is possible for an employee to make a claim within the meaning of the Unemployment Insurance Act (UIF). [60] Individual or collective agreements may provide for paid maternity leave.
Fixed-term employment contracts: Fixed-term employment contracts are permitted under South African labour law. However, in order to avoid the continuous turnover of fixed-term contracts, amendments to the LRA have been adopted, namely Articles 198B(8)(a) and 198B(5) of the LRA, which provide that a worker employed on a fixed-term contract of more than three months (whether a single fixed-term contract or successive fixed-term contracts), is considered a permanent employee for the purposes of the LRA and cannot be treated less favourably than a permanent employee performing the same or similar work. Section 198B of the LRA applies only to workers earning less than the BCEA`s income threshold of ZAR 211,596.30. These provisions do not apply if: Unlike the law of some other countries, collective agreements are generally legally enforceable between employers and trade unions. Law 66 of 1995 on Industrial Relations (“LRA”) supports the primacy of collective agreements and stresses the need for organized workers and enterprises to regulate their relations through the conclusion of collective agreements that provide for the employer, trade union members and, if the union represents more than 50% of employees in a workplace and when such an intention is expressed, Non-unionized workers in the workplace. If there is a prior warning in the employee`s personal file that he or she will be fired if the same crime is committed in the future, the dismissal may be fair in that case. A warning does not remain valid indefinitely. Employers and unions may agree on the period during which a warning remains valid, or the Employer Code may provide for it.
In the absence of such an agreement or provision, the default position is that the warning remains valid for six months, unless the breach is particularly serious, in which case it may remain valid for the duration of the employee`s period of service. Initially, it was considered that only suspensions of sentences fell within the scope of the “unfair labour practice”, but this view was rejected by the Labour Court. As a result of the use of the word “involving”, the courts have held that the list of unfair labour practices in subsection 186(2) is exhaustive ..