# South African labour law

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

## History

The Native Labour Regulations Act 1911 prohibited strikes by trade unions, introduced wage ceilings and a pass system for moving around jobs. Over 70,000 Chinese labourers were brought in, and used by landowners to undercut the wages of other workers. Among white workers, there was significant unrest, and major strikes took place in 1907, 1913, 1914 and 1922
For a period of sixteen years, from 1979 to 1995, several critical developments occurred in the field of labour law in South Africa, beginning with a radical change in the first of these years, when a significant Commission of Enquiry was held, resulting in the establishment of an Industrial Court, which was given extensive powers to mould, change, shape and develop the law. Prior to 1995, most labour relations were based on contracts. In 1995, much of the law developed by the Commission and the Industrial Court was put together in the Labour Relations Act 1995 (LRA). Since then, most labour law has been based on statute.
Prior to 1995, an employee could be dismissed in terms of the contract of employment, which could permit any reason for dismissal. Since 1995, an employee may be dismissed only for misconduct, operational reasons and incapacity. The Labour Relations Act 1995 is a pivotal piece of legislation, as it recognises the need for fast and easy access to justice in labour disputes. The Industrial Court had the status of a High Court, and therefore was not accessible to all labourers.
1995 also saw the introduction of the Commission for Conciliation, Mediation and Arbitration (CCMA) which is an administrative tribunal. The Commission for Conciliation, Mediation and Arbitration endeavours first and foremost to conciliate between the parties. If it is unsuccessful in this, the matter moves on to arbitration. The entire process is very informal, and at no charge, and is therefore very accessible to labourers, who often use it: About 300 new cases are brought before the Commission for Conciliation, Mediation and Arbitration daily. In addition to the Commission for Conciliation, Mediation and Arbitration, 1995 saw the introduction of bargaining councils, which allow for communication across the industry. A bargaining council is organised collectively and voluntarily, and must be registered. In order to be registered, an alternative-dispute-resolution mechanism, similar to the Commission for Conciliation, Mediation and Arbitration, must be put in place.
The Labour Relations Act 1995 also regulated the issue of fairness, not only in termination but during employment, too. In 1998, however, most of the law on unfair labour practices was removed from the Labour Relations Act 1995 and put into the Employment Equity Act (EEA). The EEA also deals with issues such as fairness regarding a worker's human immunodeficiency virus (HIV) status or disability, as well as the issue of affirmative action.
The Basic Conditions of Employment Act (BCEA), the Health and Safety Acts and the Skills Development Act, must be read with the EEA. The Skills Development Act provides that a small percentage of a labourer's salary must be contributed to the Department of Labour, enabling certain workshops to be run which are designed to develop skills.

## Constitution

Chapter 2 of the Constitution contains several provisions of relevance to employment and labour law:
* the right to equality
* protection of dignity
* protection against servitude, forced labour and discrimination
* the right to pursue a livelihood and
* protection for children against exploitative labour practices and work that is hazardous to their well-being.
It is important to interpret all labour legislation in light of the Constitution.
Section 23 of the Constitution deals specifically with labour relations, providing that everyone has the right to fair labour practices, and specifically the right
* to form and join a trade union;
* to participate in the activities and programmes of a trade union; and
* to strike
Every employer, meanwhile, has the right
* to form and join an employers’ organisation; and
* to participate in the activities and programmes of an employers’ organisation.
Every trade union and every employers’ organisation has the right
* to determine its own administration, programmes and activities
* to organise and
* to form and join a federation
Finally, every trade union, employers’ organisation and employer has the right to engage in collective bargaining.
Section 23(1) is an unusual provision—only South Africa and Malawi expressly protect the right to fair labour practices — as it is so broad and overarching. An exact definition of fair labour practices is impossible, since this is a dynamic field of the law, rooted in socioeconomic rights. Section 23(1) refers to "everyone," encompassing far more than merely employees and workers; it also includes would-be workers, employers and juristic persons.
Section 23 is not entirely universal, however, as soldiers are excluded from its ambit insofar as they may not strike at a time of war.
The Labour Relations Act was promulgated as the "national legislation" referred to in subsections 23(5) and 23(6), which provide respectively that "national legislation may be enacted to regulate collective bargaining," and that "national legislation may recognise union security arrangements contained in collective agreements." Both subsections stipulate that, to the extent that such legislation may limit one of the rights in section 23, the limitation must comply with section 36(1), the limitations clause of the Constitution.
The current Basic Conditions of Employment Act is also designed to give effect to the right to fair labour practices. Both Acts are bolstered by the EEA, which replicates the equality clause in the Constitution in its totality, adding that one may not discriminate on the basis of human immunodeficiency virus (HIV) status.
The general guarantee of fair labour practices has far-reaching effects on the civil courts’ approach to the interpretation of the rights of parties to employment contracts.
All courts are enjoined, when applying and developing the common law, to have due regard to the spirit, purport and objects of the Bill of Rights. This calls for a reconsideration of some of the assumptions underlying the common-law contract of employment, in particular the employer's power of command and unfettered rights in respect of promotion and dismissal.
Furthermore, the labour courts’ judgments on such contentious issues as the dismissal of striking workers are subject to review by the Constitutional Court, so long as the applicants have exhausted the procedures available to them under the labour legislation.
In NUMSA v Bader Bop, the Constitutional Court overturned a decision of the Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. The court recognised the necessity of collective bargaining and bargaining councils which facilitate the establishment of trade unions. The court held that minority unions may not strike in support of demands for organisational rights reserved in the Act for majority unions.
In NEHAWU v University of Cape Town, the Constitutional Court overturned another decision of the Labour Appeal Court which restrictively interpreted the Labour Relations Act 1995. It had been argued that the term "everyone" did not include a university or a company, but the court held otherwise. Furthermore, the court ruled that, under the original section 197 of the Labour Relations Act 1995, contracts of employment transferred automatically when businesses were transferred, irrespective of the wishes of the employers.
SANDU v Minister of Defence, another Constitutional Court, case Judge O’Reagan dealt with the concept of a "worker," and held that, although the Labour Relations Act 1995 does not apply to South African National Defense Force (SANDF) members, they are still "workers" in terms of the Constitution, which protects the rights of every person in South Africa.

## Employment contract
### Parties
#### Labour Relations Act 1995 s 200A

There is very little work that cannot be outsourced. Outsourcing is generally not supported by trade unions, who represent employees. If work is outsourced, the worker is an independent contractor. Political pressure was placed on government to move away from outsourcing and more towards employment.
In 2002, accordingly, a new presumption was added to the Labour Relations Act 1995, providing guidelines on when it has to be ascertained whether or not someone is an employee. This presumption was introduced as a part of significant amendments to the Labour Relations Act 1995 and the Basic Conditions of Employment Act in 2002.
The effect of this rebuttable presumption is that, if one or more of the list of factors is present, the person is presumed to be an employee unless and until the contrary is proven. Many of the factors and issues discussed by the courts in the cases above resurface again: The presumption is thus created
* if the manner in which the person works is subject to the control or direction of another person;
* if the person's hours of work are subject to the control or direction of another person;
* if, in the case of a person who works for an organisation, the person forms part of that organisation;
* if the person has worked for that other person for an average of at least forty hours per month over the last three months;
* if the person is economically dependent on the person for whom he works or renders services;
* if the person is provided with tools of trade or work equipment by the other person; and
* if the person only works for or renders services to one person.
The legislative provision has been taken by some to be merely a restatement or summary of the principles laid down by the courts with the passing of time.
Although this presumption is useful in determining whether a person is an employee or not, as it is closely linked to the principles and approaches developed by the courts, the Labour Court held, in Catlin v CCMA, that section 200A does not do away with the principle that the true nature of the relationship between the parties must be gathered from the contract between them. Section 200A is not the starting point, therefore; the court held that it is necessary to consider the provisions of the contract before applying the presumptions.

#### Duties

An employment relationship commences only when the parties conclude a contract of service. Prior to this, neither party has any rights against the other; they are merely a prospective employee and a prospective employer.
There are, however, two statutory exceptions to the principle that employers have no obligations to applicants for employment:
* The EEA prohibits direct or indirect unfair discrimination against an employee or applicant for employment on the basis of race, colour, gender, sex, religion, political opinion, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, culture, language, family responsibility, marital status or any other arbitrary ground.
* The Labour Relations Act 1995 and the Basic Conditions of Employment Act protect both employees and persons seeking employment against discrimination for exercising rights conferred by the Acts.

## Employee
### Basic employment rights

The Basic Conditions of Employment Act is aimed at low-income earners: those who earn less than R193,805 per annum.
No matter what the contract itself says, the Basic Conditions of Employment Act is applicable as the minimum standard that must be achieved.
The Labour Relations Act 1995 deals with strikes and unions and the like; the Basic Conditions of Employment Act is a fall back option for those vulnerable workers who are not able to unionize due to various reasons, such as the kind of work they do. Domestic and farm workers are pertinent examples in the South African context.
The purpose of the Basic Conditions of Employment Act is to advance economic development by providing basic conditions of employment.
The Basic Conditions of Employment Act also contains the definition of an employee, so that issue, discussed above, is relevant here, too. The Minister is empowered to extend the provisions of the Basic Conditions of Employment Act to non-employees in specific circumstances. Even, therefore, if a domestic worker is not considered an employee in terms of the Basic Conditions of Employment Act, the Minister may extend the provisions to her for her own protection.

### Hours

A maximum of 45 hours per week is allowed to be worked. These stipulations (regarding hours) are not applicable on the following persons:
* a person that earns more than R211,596.30 per year; or
* a person in a senior management position; or
* Sales personnel, employees are required to travel in the performing of their duties, and people that can determine their own work hours.

#### Sundays

Payment for working on a Sunday is twice the normal wage if the employee is not expected in terms of his/her contract to work on Sundays, however if the employee is expected to work on Sundays in terms of his or her contract, the employee shall receive 1.5 times the normal wage.

#### Meal intervals

An employee is entitled to one hour off after 5 consecutive hours of work.
An employee's meal interval can be reduced to 30 minutes by mutual consent.

#### Maternity leave

An employee is entitled to four months off in total, the leave must start at least 4 weeks prior to the expected birth date, and end at least 6 weeks after the expected date of birth. It does not, however, stipulate that this is paid leave. In terms of the Unemployment Insurance Fund, when a woman is on maternity leave, she is entitled to Unemployment Insurance Fund benefits for half the time spent away. Usually the employer will pay the other half, but this is not required in the Basic Conditions of Employment Act.

#### Family-responsibility leave

If the employee has been working for more than four months, he is entitled to 3 days family-responsibility leave, as in the case where there has been a death in his/her immediate family. Furthermore, in case where the employees child is ill.

#### Remuneration

Employers must keep records of the hours worked and remuneration awarded for each employee for at least three years.
Employees are to be paid in South African currency at the place of work (unless this is altered in the contract).
Employers may not deduct money from employees unless prior consent in writing is obtained.
Regarding severance pay, in cases of retrenchments or dismissals for operational reasons, employees are entitled to one week's pay for every year worked.

#### Variations

The Basic Conditions of Employment Act is the very minimum standard required by employers. Employers may award more, but never less, than what is stipulated.
If an employer gives more than the minimum, he may be locked into always giving more, as he must then abide by the required annual increases, which are based on a percentage of the current pay.
An employer may vary the provisions in the contract by
* individual agreement; or
* collective agreement on an industry-wide basis.

## Unfair labour practices

In the past, the concept of "unfair labour practice" was broadly defined. The Industrial Court (a specialist tribunal that exercised jurisdiction over alleged unfair labour practices) took several innovative approaches. The court formulated a set of rules to govern unfair dismissals. These rules are now contained in Chapter VIII of the Labour Relations Act 1995 and in the Code of Good Practice: Dismissal.
The employment relationship has three stages:
* the beginning, when the employee is an applicant for employment;
* the middle, which continues as long as the relationship continues; and
* the end, which may take the form of dismissal, resignation or retirement.
Unfair conduct by the employer at the beginning of the relationship normally takes the form of unfair discrimination. Unfair conduct by the employer at the end of the relationship normally takes the form of unfair dismissal. Unfair conduct by the employer during the subsistence of the relationship will take the form of unfair labour practice.
Section 186(2) of the Labour Relations Act 1995 defines an "unfair labour practice" as "an unfair act or omission that arises between an employer and an employee," and involves
* unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
* the unfair suspension of an employee, or any other unfair disciplinary action short of dismissal;
* a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
* an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, on account of the employee's having made a protected disclosure defined in that Act.

### Exhaustive list

Due to the use of the word "involving," the courts have held that the list of unfair labour practices, contained in section 186(2), is exhaustive. Therefore, the definition of "unfair labour practice" in the current Labour Relations Act is considerably narrower than that of its predecessor, the Labour relations Act of 1956. This is because concepts such as unfair discrimination have been removed from its ambit and included in the EEA.
The fact that the list is exhaustive raises three issues, as the Constitution expressly affords everyone the right to fair labour practices:
* whether the limitation of the constitutional right is justifiable, which according to the general consensus it is;
* the actual interpretation of this definition; and
* the freedom of employees to rely directly on the Constitution, as opposed to the current Labour Relations Act.
With regard to the interpretation of this definition, the general principle is that legislation that limits constitutional rights must be interpreted in such a way as to minimise the limitation. The definition must be interpreted so as to give the maximum possible protection.
With regard to the freedom to rely directly on the Constitution, employees may rely directly on the Constitution to challenge practices not covered by the Labour Relations Act 1995, like transfers. This issue, however, remains to be developed by the courts.

### Promotion and demotion
#### Meaning

Employers commonly use one of two systems to promote employees:
* level progression, whereby employees are evaluated on a regular basis and progress to a higher level within the parameters of the job in question; and
* the application-for-vacancies system, whereby vacancies are advertised, and both current employees and external applicants are invited to apply for posts.
The second system is problematic. The Commission for Conciliation, Mediation and Arbitration and the courts have held that it is not promotion at all, as the employee is nothing other than a job applicant.
Firstly, in order to constitute a dispute concerning promotion or demotion, the aggrieved individual must be an employee of the employer to which he wishes to take action.
Secondly, one must compare the current job held by the employee with the job applied for.
Factors which are taken into account include any difference in remuneration levels, fringe benefits, status, levels of responsibility or authority or power, and the level of job security.
In Mashegoane v University of the North, the dispute was whether the university's refusal to appoint a lecturer to the position of Dean of a faculty involved a promotion. The legislation governing the university provided that Deans were appointed by the Senate acting on the recommendation of the Faculty Board. The university argued
* that the position of the Dean was not applied for; and
* that it was not a promotion; but
* that it was a nomination.
Once the court established that the applicant was a current employee, it found that his salary would have remained the same, but that he would have received a Dean's allowance and would have had a car at his disposal; these were the only benefits. His status would have been considerably elevated. He would have had more responsibilities, authority and powers. In light of this, the appointment amounted to a promotion.
In Nawa v Department of Trade and Industry, however, the court held that there was no promotion because there was no intention to change the existing terms and conditions of employment, even though there was an intention to change the way in which work was done.
Generally the Commission for Conciliation, Mediation and Arbitration and other institutions are quick to assume that there was indeed a promotion or demotion.
Disputes concerning Promotion and Demotion generally involve employees being denied a higher-level post within the structure of the employer's organization or being stripped of status or benefits.

#### Protected disclosures

Any occupational detriment an employee may suffer due to the making of a protected disclosure is an unfair labour practice.
"Occupational detriment" and "protected disclosure" are defined in the Protected Disclosures Act.
"Occupational detriment" includes, inter alia, being subjected to disciplinary action; dismissed, suspended, demoted, harassed or intimidated; transferred against one's will, refused transfer or promotion, etc.
Once it is established that the employee has suffered an "occupational detriment," it must be proved that the detriment was due to a protected disclosure. This means that there must be a protected disclosure, and that there must be causality between the disclosure and the detriment.
As far as causality is concerned, the Labour Relations Act 1995 requires that the detriment must be "on account of" the protected disclosure.
"Disclosure" is defined as "any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following:
* "that a criminal offence has been committed, is being committed or is likely to be committed;
* "that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
* "that a miscarriage of justice has occurred, is occurring or is likely to occur;
* "that the health or safety of an individual has been, is being or is likely to be endangered;
* "that the environment has been, is being or is likely to be damaged;
* "unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act [...]; or
* "that any matter referred to [above] has been, is being or is likely to be deliberately concealed."
Generally, such disclosures become protected when they are made to certain persons and offices under certain conditions:
* it was made in good faith;
* the employee reasonably believes that it is substantially true; and
* it was not made for personal gain.
Furthermore, the employee must have reason to believe
* that, if disclosure is made to the employer, he will suffer an occupational detriment;
* that the information was previously disclosed, and no action was taken by the employer; or
* that the matter is exceptionally serious.
Not every disclosure made by an employee will be protected. Only gradually are the courts beginning to consider the nature of a protected disclosure and the protection to be afforded to employees.
In Grieve v Denel, the employee was busy preparing a report for the employer's board of directors relating to allegations of wrongdoing by a manager. The employee found himself charged with misconduct, suspended and told to attend a disciplinary enquiry. He approached the Labour Court for an interdict to stop the employer's taking disciplinary action. The court held that the disclosures the employee intended to make were in good faith, and that, if the allegations were true, they could indicate possible criminal conduct. The disclosures were held to fall within the ambit of protection. The employer was ordered not to proceed with the pending disciplinary action.
In CWU v Mobile Telephone Networks, the Labour Court held that an employee's accusation of fraud by management did not constitute a protected disclosure; it was merely the employee's opinion and was not supported by any facts.

## Discrimination law

Seen generally, there are three mechanisms designed to protect the individual employee:
* protection against unfair dismissal;
* protection against unfair labour practices; and
* the setting of minimum conditions of employment in the Basic Conditions of Employment Act.
The fourth mechanism of protection is protection against unfair discrimination.
The Labour Relations Act 1995 was the first piece of legislation to deal with discrimination in the workplace.
The EEA also contains detailed provisions to counteract and eliminate discrimination in the workplace.
The Constitution, with its right to equality, provides an important constitutional context for employment equity. A consideration of this constitutional provision indicates that the elimination of discrimination has two bases:
* formal equality, or equality in treatment; and
* substantive equality, enshrined in the adoption of positive measures to empower previously disadvantaged groups in South African society; also known as "affirmative action."
Section 6 of the EEA contains the main thrust of the Act's prohibition against unfair discrimination. It provides that
   no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.
It is not unfair discrimination
* to take affirmative action measures consistent with the purpose of the Act; or
* to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
Harassment of an employee is a form of unfair discrimination, and is prohibited on any of the above grounds.
Furthermore, the EEA places a positive duty on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. In certain circumstances there may be a duty on the employer to take reasonable measures to accommodate certain groups of employees.
In this regard, the Code of Good Practice: Key Aspects of human immunodeficiency virus (HIV)/acquired immunodeficiency syndrome (AIDS) and Employment, together with the Code of Good Practice on the Employment of People with Disabilities, provides guidelines on how HIV/AIDS and disability should be dealt with and accommodated in the workplace.
This is the only legislative provision that mentions human immunodeficiency virus (HIV) status as a prohibited ground of discrimination. Its inclusion makes section 6 of the EEA even wider than section 9 of the Constitution.
Section 6 protects only an "employee," but it does not speak only of an employer; it provides that "no person" may discriminate. This is broader, and may include, inter alia, an independent pension fund or an independent medical aid scheme, or even a fellow employee.
In this regard, if an employee lodges a complaint of discrimination against another employee, and the employer does not consult in an attempt to eliminate the discrimination, the employer may be held liable.
The difference between discrimination and differentiation must always be kept in mind, as not all differentiations amount to discrimination. There may be a fair differentiation between employees on the basis, for example, of educational qualifications or experience or seniority.
Generally, differentiation will amount to discrimination if it is based on an unacceptable reason. Even if the discrimination suffered is not listed in section 6(1) of the EEA, it would amount to discrimination if, objectively, it is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings, or to affect them adversely in a comparably serious manner.
Once the employee has proven that there has been a differentiation, the EEA and Constitution provide that it is presumed to have been unfair discrimination. The employer then bears the onus of proving the differentiation to be fair.
Discrimination may be direct or indirect:
* It is direct when it is clearly and expressly based on one or more of the grounds listed in section 6 of the EEA.
* It is indirect when, although not express, discrimination occurs as a result of it, as when an employer imposes a gender-neutral criterion, such as height or weight, as a condition for employment, and this criterion indirectly has a disproportionate effect on women.

### Harassment

The EEA provides that harassment amounts to "a form of unfair discrimination," and as such is prohibited. The most prevalent forms of harassment encountered in the workplace are
* sexual harassment;
* racial harassment;
* sexual-orientation harassment; and
* religious harassment.
Of these, sexual harassment is by far the most common.

#### Sexual harassment

The Code of Good Practice on Handling of Sexual Harassment Cases lists three types of conduct which could constitute sexual harassment:
* physical conduct ranging from touching to sexual assault and rape, and including a strip-search by or in the presence of the opposite sex;
* verbal conduct, including innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person's body (made to that person or in her presence), enquiries about a person's sex life, and even whistling at a person or a group of persons; and
* non-verbal conduct, including gestures, indecent exposure or the display of sexually explicit pictures or objects.
Another way to define sexual harassment is to consider the effect of the harassment. Three types of harassment may be so identified:
* quid pro quo harassment, which occurs when a person is forced into surrendering to sexual advances against her will, for fear of losing a job-related benefit;
* sexual favouritism, which occurs where a person in authority rewards only those who respond to his sexual advances; and
* hostile work environment harassment, which occurs when an abusive working environment is created.
The questions remain: From whose perspective does one analyse the conduct to see if it amounts to sexual harassment? What test does one apply? Does one look to the way in which the victim experienced the situation (a subjective test), or does one try to be more objective?
* A subjective test would rely exclusively on the perceptions of the victim. An obvious criticism of such a test is that some victims may be over-sensitive, and therefore cast the net too wide.
* A purely objective test, on the other hand, may be too narrow. The "reasonable man" test (which is, in terms of the common law, the generally applied "objective" test) implies reliance on male-dominated values.
* The "reasonable victim" test seeks to establish a compromise. It takes into account the experiences of the victim, the surrounding circumstances, and the question of fault on the part of the perpetrator.
Decided cases are inconsistent on which test should be used.
The Code of Good Practice states that sexual harassment is "unwanted conduct of a sexual nature." This implies a subjective test. It goes on to say, however, that sexual attention will only become sexual harassment
* if the behaviour is persistent;
* if the recipient has makes it clear that the conduct is considered offensive; or
* if the perpetrator should know that the behaviour is regarded as unacceptable.
The Code thus adopts a mixture of the subjective and the objective test.

##### Employer liability

The EEA states that the employer may be held liable if he was made aware of the conduct but did nothing, or did not do everything that could be expected of a reasonable employer.
Furthermore, the Code provides that, as a first step in expressing concern about and commitment to dealing with the problem of sexual harassment, employers should issue a policy statement, stipulating the following:
* All employees, job applicants and other persons who have dealings with the business have the right to be treated with dignity.
* Sexual harassment in the workplace will not be permitted or condoned.
* Persons who have been or are being subjected to sexual harassment in the workplace have the right to lodge a grievance about it. Appropriate action will be taken by the employer.
The Code recommends that management be given a positive duty to implement the policy, and to take disciplinary action against employees who do not comply with it. A policy on sexual harassment should explain the procedure to be followed by employees who are victims of sexual harassment. The policy should also state the following:
* Allegations of sexual harassment will be dealt with seriously, expeditiously, sensitively and confidentially.
* Employees will be protected against victimisation and retaliation for lodging grievances, as well as from false accusations.
Finally, the Code recommends that policy statements on sexual harassment be communicated effectively to all employees.

##### Other remedies

The employee who resigns due to sexual harassment may argue that this was a constructive dismissal, which would provide grounds for finding an automatically unfair dismissal.
A victim of harassment may institute a civil claim, based on delict, against the perpetrator; she may also institute a claim against the employer, based on the common-law principles of vicarious liability.

#### Medical testing

The EEA prohibits medical testing of an employee, unless
* legislation requires or permits such testing; or
* the testing is justifiable.
Testing may be justifiable in the light of
* the medical facts;
* the employment conditions;
* social policy;
* the fair distribution of employee benefits; or
* the inherent requirements of a job.
Job applicants are also protected from medical testing.
The EEA prohibits "psychological and other similar assessments" of employees, unless such an assessment
* has been scientifically shown to be valid and reliable;
* is applied fairly to all employees; and
* is not biased against any employee or group of employees.

##### HIV/AIDS

The EEA lists HIV status as one of the grounds on which an employee may not be discriminated against. South African Airways, for example, formerly had a policy of not employing HIV-positive employees as cabin attendants, partly because it believed that HIV-positive people could not have vaccinations, a requirement for international travel, and were at risk of infection, which might be transmitted to others.
In Hoffman v South African Airways, the court found that people living with HIV constitute a minority, to which society has responded with intense prejudice, stigmatization and marginalization. Society's response has forced many of them not to reveal their HIV status, for fear of such prejudice, and has thus deprived them of the help they would otherwise have received. This stigmatization the court considered an assault on their dignity.
The EEA is designed to counteract
* the need which employers may feel to test their employees for HIV/AIDS; and
* the concomitant risk of prejudice to employees who do test positive.
Such testing is prohibited unless it is held to be justifiable by the Labour Court, which may impose various conditions on such testing, including
* the provision of counselling;
* the maintenance of confidentiality;
* a limitation on the period of HIV-testing; and
* a limitation on the category of jobs or employees in respect of which such testing is authorized.
Employers may make HIV testing available to employees as part of a "wellness" program, provided that it takes place confidentially and on the basis of informed consent. Authorisation from the Labour Court is not required for such testing.
The EEA does not forbid anonymous testing undertaken for epidemiological purposes, or to establish the prevalence of HIV/AIDS among the workforce.
In Joy Mining Machinery v NUMSA, the court held that the following considerations should be taken into account in determining whether or not HIV testing is justifiable:
* the prohibition on unfair discrimination;
* the need for such testing;
* the purpose of such testing;
* the medical facts;
* the employment conditions;
* social policy;
* the fair distribution of employee benefits;
* the inherent requirements of the job; and
* the category or categories of jobs or employees concerned.
The court will also want to be informed about the following, which do not go to the question of justifiability, but which are also relevant to arriving at a proper decision:
* the attitude of the employees;
* the financing of the test;
* the preparations for the test;
* pre-test counseling;
* the nature of the proposed test and procedure; and
* post-test counseling.
There is also a Code of Good Practice on Key Aspects of HIV/AIDS and Employment, which provides guidelines to employers and employees on how to deal with HIV/AIDS in general.
With regard to HIV/AIDS and disability, the Code states that an employee who has become too ill to work may be dismissed on grounds of incapacity. A mental or physical impairment will constitute a disability only if it is "substantially limiting" in respect of entry into, or advancement in, employment.

#### Disputes about discrimination

A dispute about unfair discrimination must be referred to the Commission for Conciliation, Mediation and Arbitration for conciliation within six months of the alleged discriminatory act or omission.
Disputes of this nature may not be referred to a bargaining council.
In referring the dispute to the Commission for Conciliation, Mediation and Arbitration, the referring party must indicate that it has made a reasonable attempt to resolve the dispute, depending on the circumstances.
If conciliation fails, the matter may be referred to the Labour Court, unless the parties consent to the jurisdiction of the Commission for Conciliation, Mediation and Arbitration for arbitration.
The Labour Court may make any appropriate order that is "just and equitable" in the circumstances, including compensation, damages, and orders directing the employer to take preventative steps.
Again, once the employee proves that there was discrimination, the onus shifts to the employer to prove that the discrimination was fair.

#### Affirmative Action

Alongside the prohibition against unfair discrimination, affirmative action is the second cornerstone of the EEA.
According to section 2(b) of the EEA, the goal of affirmative action is to ensure the equitable representation of certain groups in all occupational categories and levels in the workplace.
"Equitable representation" is not defined in the EEA, but section 42 states that it may be determined by a consideration of
* the demographic profile of the economically active population, nationally and regionally;
* the pool of suitably qualified people in the designated groups from which the employer may reasonably be expected to promote or appoint employees; and
* the economic and financial factors relevant to the sector in which the employer operates.
Affirmative action is, by its very nature, a temporary measure. Once the goal of equality in the workplace has been achieved, the reason for the measure will fall away.
A potential beneficiary of affirmative action must meet two requirements:
* He must be "suitably qualified."
* He must be from a designated group.
There are, in this regard, four key definitions in the EEA:
* "Designated groups" are black people, women and people with disabilities.
* "Black people" include Africans, Colored people and Indians.
* "People with disabilities" are those who have a long-term physical or mental impairment which substantially limits their prospects of entry into (or advancement in) employment.
* A "suitably qualified person" is one who may be qualified for a job as a result of any of his formal qualifications, prior learning, relevant experience, or his capacity to acquire, within a reasonable time, the ability to do the job.
Employees from one of the designated groups may approach the Labour Court, citing unfair discrimination, to enforce a lack of affirmative action. The Labour Court has held, however, that there is no individual right to affirmative action, which is collective in nature.

##### Designated employers

The prohibition of unfair discrimination applies to all employers, regardless of their size, but the affirmative-action provisions of the EEA apply only to "designated employers."
A "designated employer" is defined as follows:
* an employer who employs fifty or more employees; or
* an employer who employs fewer than fifty employees but whose annual turnover in any given year exceeds a certain level, like an employer in agriculture with a total annual turnover of R2,000,000;
* municipalities;
* organs of state; or
* an employer appointed as a designated employer in terms of a collective agreement.
Employers that do not fall within the ambit of this definition may still voluntarily indicate that they intend to comply with the Act.

##### Employment-equity plans

The employment-equity plan is the centrepiece of the procedure for implementing affirmative action in the workplace.
A designated employer has to consult with the workforce on
* the conduct of an analysis of its employment policies, practices and procedures, as well as the working environment;
* the preparation and implementation of an employment-equity plan, which will achieve reasonable progress towards employment equity in the workforce; and
* the submission of reports to the Department of Labour.
The analysis described above must also contain a profile of the employer's workforce. Using this profile, the employer must determine the degree of under-representation of people from designated groups in the various categories and levels.
The employment-equity plan must include
* annual objectives;
* the affirmative-action measures that have to be implemented;
* annual timetables for the achievement of goals;
* the duration of the plan; and
* internal procedures to resolve disputes about the interpretation or implementation of the plan.
If there is an under-representation of people from designated groups, the plan must also outline
* the numerical goals to be achieved;
* the timetable within which these goals have to be achieved; and
* the strategies to achieve such goals.
A copy of the plan must be made available to employees. The designated employer must assign one or more senior manager the responsibility and authority and means to monitor and implement the plan.
Designated employers must submit reports to the Department of Labour:
* If fewer than 150 employees are employed, the report must be made every two years.
* If more than 150 employees are employed, the report must be made every year.
Designated employers are required to submit a statement to the Employment Conditions Commission about the remuneration and benefits received by employees in each occupational category and level. If this statement reflects disproportionate income differentials, the employer must take steps progressively to reduce such differentials.

##### Enforcement

The EEA provides for four ways in which compliance with its affirmative-action provisions may be ensured:
* self-regulation;
* administrative procedures;
* court action; and
* state contracts.

###### Self-regulation

Employment equity plans must include dispute-resolution procedures. Employers and employees must use these procedures first.

###### Administrative procedures

A labour inspector, with reasonable grounds for believing that an employer is not complying with the EEA, may try to obtain a written undertaking from the employer that he will comply. If he refuses, the inspector may issue a compliance order, to which the employer may object within 21 days.

###### Court action

The Labour Court has the power
* to make a compliance order an order of court;
* to direct the Commission for Conciliation, Mediation and Arbitration to conduct an investigation to assist the court;
* to order compliance with any provision of the EEA;
* to hear appeals against compliance orders imposed by the Director-General; and
* to impose fines on employers if they fail to comply with the EEA.

###### State contracts

Designated employers who wish to enter into commercial contracts with organs of state must comply with the EEA. They must attach to their offer either
* a certificate of compliance issued by the Minister of Labour; or
* a statement that they do comply.
If these requirements are not met, the organ of state may reject the offer; it may even constitute grounds for the cancellation of a contract that has already been concluded.

## Job security
### Common law

The common law afforded the employee virtually no protection against unfair dismissal. Before the Labour Relations Act (LRA), as long as the employer gave the required period of notice, dismissal or probation was acceptable. The common law focused only on the lawfulness of the employment contract itself; the reason for the dismissal was irrelevant. The employer was not required to give the employee an explanation for the termination; nor was there any requirement that the dismissal be fair.
This had the effect of increasing the bargaining power of the employer, who could, essentially, do as he pleased, because of his more powerful position. The employer could threaten to dismiss the employee if the latter refused to accept less favourable terms and conditions of employment. The reason for this, it has been contended, is that, prior to 1980, this area of law was based on the incorrect assumption that there existed equal bargaining power between employer and employee.

### Labour Relations Act

Unfair dismissal is now governed by the Labour Relations Act. Some have argued that the Labour Relations Act undermines the flexibility required for the free market to exist. Others have argued that a restrictive labour law promotes job security, loyalty and incorporation into companies.
The Labour Relations Act gives regulates and gives effect to the following, which includes but is not limited to: to give effect to section 27 of the Constitution; to regulate the organisational rights of trade unions; to promote and facilitate collective bargaining at the workplace and at sectoral level; to regulate the right to strike and the recourse to lockout in conformity with the Constitution; to promote employee participation in decision-making through the establishment of workplace forums; to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration. Furthermore, provides for the right not to be unfairly dismissed or subjected to unfair labour practices.

#### Unfair dismissal

Not only employees have the right not to be unfairly dismissed; non-employees enjoy such protection. The Labour Relations Act's approach to unfair dismissal may be summarised in the following three questions:
* Is the worker an employee? (Only employees may be dismissed, and only employees enjoy the protection of the Labour Relations Act.)
* Has there been a dismissal? (To answer this question, one must look to section 186(1) of the Labour Relations Act.)
* Is the dismissal substantively or procedurally unfair? (In this regard, the reason for the dismissal will be a decisive factor.)
The employee has the onus to establish that there has in fact been a dismissal. If this is discharged, the onus shifts to the employer, who prove the fairness of the dismissal.
"Dismissal" is the termination of the employment relationship by the employer, with or without notice. It can also entail
* that the employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms, or did not renew it at all; or
* that the employer refused to allow the employee to resume work after she took maternity leave in terms of any law or collective agreement, or in terms of her contract of employment.
An employer who has dismissed a number of employees for the same or similar reasons, but who now offers to re-employ one or more of them, while refusing to re-employ another, will have dismissed the latter.
The statutory definition also recognises as constituting dismissal certain circumstances in which the employee terminates the employment relationship. This is known as constructive dismissal.
Where, for example, an employee terminates a contract of employment, with or without notice, because the employer has made continued employment intolerable for him, he will have been constructively dismissed.
An employee may also be regarded as having been constructively dismissed if he terminates a contract of employment, with or without notice, because his new employer, after a transfer of the business as a going concern, provided him with conditions or circumstances at work which are substantially less favourable than those provided by his former employer.

##### Termination of the employment contract

Section 186(1)(a) of the Labour Relations Act refers to the standard form of dismissal. Either the employee is given notice of the termination, or his contract of employment is terminated by way of summary termination. Note, again, that only "employees" may be dismissed.
The requisite period of notice may be expressly stated in the contract itself, in terms of a statute such as the Basic Conditions of Employment Act, or even in terms of a collective agreement. In terms of the Basic Conditions of Employment Act,
* one week's notice is required in the first six months of employment;
* two weeks' notice if the employee has been employed for more than six months but less than a year; and
* four weeks' notice if he has been employed for more than a year.
Summary termination by the employer may be justified if the employee has committed a serious or fundamental breach of a material term of the contract.
It is worth noting, that it a common misconception that an employee can be terminated by simply giving notice in terms of his/her employment contract. All terminations must be in accordance with the Code of Good Practice: Dismissal.
In CSIR v Fijen, an employee and his employer had quarreled during negotiations, with the employee declaring their relationship "finished," and the employer interpreting this as a resignation. The employee subsequently denied having resigned; what he meant, he argued, was that the working relationship had become intolerable. The court held that, in the absence of a clear and unambiguous intention to quit, there could not have been a proper resignation. The employer, therefore, was mistaken in its interpretation of his words.
There were indications, in Ouwehand v Hout Bay Fishing, that the employee would be retrenched. Representations were made to him that he should find other work. He stopped going to work, therefore, on the assumption that he had been dismissed. The court, however, held that he had resigned, because the onus is on the employee to show that he has been dismissed. The employee in this case did not discharge that onus.
When dismissal may be effected is a question of some practical importance. It relates to the question regarding the commencement of employment: Does it commence when the contract is concluded, or rather when the employee starts working? The difficulty is that there may be a significant lapse of time between these two events.
The Labour Court held, in Whitehead v Woolworths, that, to qualify as an employee, it was insufficient for the employee to prove that a contract of employment had been concluded. The conclusion of the contract merely gives rise to contractual claims; it does not confer the status of an employee or employer on the parties for the purposes of the Labour Relations Act. "In terms of the definition," Waglay AJ found,
   a person is only an employee when such person actually works for another person. The employee must therefore have rendered a service to another which services are not that [sic] of an independent contractor. In addition to working for another the employee must also "receive" or be "entitled to receive" remuneration. The remuneration referred to must correspondingly mean remuneration for work done or tendered to be done.
Two subsequent decisions of the Labour Court, in Jack v Director-General, Department of Environmental Affairs and Wyeth SA v Manqele, have taken a different approach.
The rights and remedies of a job applicant were considered in Jack, where the employer breached the contract by not allowing the party to commence work on the agreed date. The Labour Court, having examined the question of whether or not there was an employment relationship between the parties, decided that, once the parties have reached agreement on all the essential terms of the contract, it will be binding and enforceable.
In Wyeth, employer and employee had concluded a written contract on 15 March providing that the employee would commence work on 1 April. Before work commenced, the employer informed the employee that it was no longer prepared to employ him. The Labour Court held that the term "employee" in the Labour Relations Act encompasses a person who has concluded a contract to work, and that such person would also enjoy protection against unfair dismissal. This is in line with a purposive interpretation of the definition of "employee."
The employment relationship is wider than the employment contract. While the contract of employment is the foundation of the relationship, the relationship may begin before the employee commences working, and may endure for some time after the contract has been terminated. It ought also to be noted that, although abscondment by the employee constitutes a breach of contract, this by itself does not necessarily bring the contract to an end. Only when the employer accepts the employee's repudiation of the contract may it be said that there has been a dismissal.
In some cases, an employment relationship is terminated by neither the employer nor the employee, but by operation of law. This occurs, for example, when an employee's residence or work permit expires, and is sometimes called "automatic dismissal."

##### Failure to renew fixed-term contract

The employee must have a "reasonable" expectation that the fixed-term contract will be renewed. He bears the onus of proving that the expectation of continued or permanent employment is reasonable. The test is objective, inquiring into whether or not a reasonable person would anticipate renewal in such circumstances.
In addition, the employer must have created the impression that such an expectation was justified. The following are among the ways in which the employer or his representative may create such an impression:
* by past renewals of fixed term contracts;
* by making representations to the employee that the contract will be renewed; and
* by assuring the employee that the contract will be renewed.
There must, then, be some form of "prior promise or past practice." An offer on less favourable terms is also subject to the reasonable-expectation test.
In SA Rugby v CCMA, the coach of the team indicated to certain players that he had "plans for them." When it came to choosing the side, however, certain of those players were not even sent to training, and therefore were ineligible for the renewal of their contracts. It was held that the coach's representations to the players were such that they had a reasonable expectation of renewal.
What about the reasonable expectation of a permanent position? In Dierks v Unisa, the employee had been employed by means of a series of fixed-term contracts. He argued that he had been unfairly retrenched, and that he was entitled to a permanent position. It is important to draw a distinction between the employee's two expectations:
* that the fixed-term contract would be renewed on the same or similar terms; and
* that he would have permanent employment.
The court held that section 186(1)(b) relates to the first expectation only, but the Labour Court later found, in McInnes v Technikon Natal, that its decision in Dierks had been incorrect. It took the view that the focus should be on the nature of the expectation, and whether or not in the circumstances the expectation was reasonable. In casu, the employee genuinely believed that she would be doing the same work as before, the only difference being that her appointment would in future be permanent. In this case, the "similar terms" referred to included the reasonable expectation of permanent employment on similar terms.
The uncertainty continued with Auf Der Heyde v University of Cape Town, where the Labour Court accepted that the approach in Dierks was correct, and that section 186(1)(b) did not include a reasonable expectation of permanent employment. This case, however, went on appeal, where the judge found it unnecessary in the circumstances to decide the issue.

##### Dismissal for reasons relating to pregnancy

The Basic Conditions of Employment Act provides for four months' maternity leave, but does not require that it be paid. It is possible, however, for an employee to make a claim in terms of the Unemployment Insurance (UIF) Act. Individual or collective agreements may provide for paid maternity leave.
An important concession in the Basic Conditions of Employment Act is that no employee may be expected to work for the first six weeks after the birth of her baby, but a midwife or medical practitioner may certify that she is fit to work if the employee wishes to do so. An employer's refusal to allow an employee to return to work after she has been on maternity leave (paid or unpaid) will now fall within the ambit of "dismissal" for the purposes of the Labour Relations Act. If an employee does not return to work within the period permitted, this will probably be viewed as abscondment, in which case the normal sanctions will apply.

##### Selective re-employment

In a sense, in cases of selective re-employment, the employment relationship continues even after the employment contract itself has been terminated. Three elements are essential:
* There must have been a dismissal.
* The employees concerned must have been dismissed for the same or similar reasons.
* The employer must subsequently have offered to re-employ one or more of the previously dismissed employees, while refusing to re-employ one or more of the others.

##### Constructive dismissal

The essential feature of a constructive dismissal is that the employee terminates the employment contract. His resignation is not entirely voluntary, however, as it is brought about or necessitated by the actions or omissions of the employer. These actions must be "intolerable." The employee, in resigning, indicates that he would have carried on work indefinitely had not the intolerable situation been created.
In considering whether or not there has in fact been a constructive dismissal, the courts will ask the following questions:
* Did the employee intend to bring an end to the employment relationship? Here one must look to the factual context. If the employee signs a resignation letter, such intention is almost certainly present. If the employee would have resigned anyway, even without the intolerable circumstances, he may not claim that those circumstances were the decisive factor. The time frame, too, is important: If the employee only resigns some months after an isolated incident, his case is less credible than if he had done so immediately. He is not automatically discredited, however; the situation must be viewed as a whole. Any subsequent conduct, where the accumulative effect is intolerable, must also be considered.
* Was the working relationship so objectively intolerable that it was no longer possible for the employee to work there? This must be viewed in light of the objective reasonable-person test. "Intolerable" conduct is conduct beyond the norm. To curse and swear in a particular environment may be completely acceptable, for example, and therefore not in itself intolerable. Misrepresentations made by an employer are considered intolerable, as is withholding an employee's salary or claiming deductions without prior written consent; so, too, is the making of threats, and abuse or violent behaviour, on the part of the employer. Furthermore, if an employee is denied the use of a company car, when such is required for the job, and the contract provides for one, this will also count as intolerable. On the other hand, a mere request by the employer to keep costs low is not intolerable; nor is the absence of immediate employment opportunities, or displeasure the employer's management style.
* Did the employer create the intolerable situation? The intolerable situation must be linked to the conduct of the employer.
* Is the situation likely to endure for a longer period of time? This depends on the circumstances of the case.
* Was termination the only option available to the employee? It must be the only reasonable option, and the employee must first have tried other possible dispute-resolution options: lodging a grievance, for example, and then giving the employer the chance to respond.

#### Section 187 of the LRA

Section 187 of the LRA lists the reasons for which an employee may not be dismissed under any circumstances. Such dismissals are "automatically unfair." Once it is proved that the employee has been dismissed for any of these reasons, the employer may not raise any defence save those provided for in the Act. Victims of automatically unfair dismissals will invariably be reinstated unless they choose compensation instead.
Section 187(1)(d) is of particular importance. It designates as automatically unfair dismissals in response to the employee's taking action, or indicating an intention to take any action, against the employer by exercising any right conferred by the LRA, or by participating in any proceedings in terms of the LRA. Dismissal for any conduct regarding membership of a trade union, or for exercising the rights conferred by the labour legislation, is automatically unfair.
The rights referred to are found in section 5 of the LRA. They include lawful trade-union participation, non-compliance with an unlawful order and disclosure of information.
In CEPPWAWU & another v Glass & Aluminium, hostility from the employer in the workplace led to a constructive dismissal. The hostility was very closely related to the employee's work as shop steward. The court held that the employer had made the employee's life unbearable due to the fact that he was a shop steward; the dismissal was therefore automatically unfair. The court noted that victims of automatically unfair dismissal will invariably be reinstated unless they choose compensation instead.

#### Dismissal to compel employee to accept demand in mutual-interest dispute

In terms of section 187(1)(c), employers may not threaten employees with disciplinary action if they do not comply with a demand: a salary decrease, for example. The Labour Court has considered situations in which employees are threatened with dismissal for refusing to accept unilateral amendments of their terms and conditions of employment by their employers. In this regard,
* the first issue is whether or not an employer has a right to dismiss employees who are not prepared to agree to changes to their terms and conditions of employment; and, if so,
* the second issue is the nature of the relationship between that right and the employees' right not to be dismissed for the purpose of being compelled to agree to a demand in respect of a matter of mutual interest.
Employers may lock out employees (provided that they follow the proper procedure) as a bargaining strategy. A lock-out does not constitute dismissal, as the employees are still employed by the employer.
The difficulty is that an employer may argue that he has the right to dismiss, for operational reasons, those employees who do not accept such a demand. It can be factually difficult in such cases to determine what was the true reason for the dismissal.
Section 187(1)(c) does not prevent employers from dismissing employees who refuse to accept a demand if the effect of that dismissal is to save other workers from retrenchment. Nor does this form of automatically unfair dismissal preclude an employer from dismissing a grossly insubordinate employee.
In Afrox Limited v SACWU & Others, the company had a distribution system that resulted in its drivers working in excess of the overtime permitted by law. It decided to introduce a system of staggered shifts to overcome the problem. The employees, refusing to work under the new system, went on strike. They were subsequently dismissed for "operational reasons", as the deliveries from the branch that had been striking were outsourced. The employees contended that the real reason why they were fired was because they were on strike. The court held that, although the strike accelerated the dismissal, the workers did not comply with the Basic Conditions of Employment Act when they went on strike; therefore, regardless of the strike, the dismissal on operational reasons was upheld as fair.
In Fry's Metal v NUMSA, the court held that the dismissal of employees who refuse to accept a demand does not infringe section 187(c) if the employer intends to get rid of the workers permanently. In this case, the dismissal was not in an attempt to force compliance; it had gone so far as to constitute operational reasons.
In CWIU v Algorax (Pty) Ltd, Algorax had not formally declared a lock-out. The court held, therefore, that the employer had infringed section 187(1)(c), because it offered to reinstate the employees after dismissing them. Had Algorax formally declared the lock-out, it would seem that it could have kept the employees out for as long as it did without having to compensate them for unfair dismissal.

#### Insubordination

In retrenchment cases, it is difficult to decide when an employer is entitled to dismiss for insubordination when employees refuse to comply with instructions. One must distinguish between refusal to work and refusal to do work in the specific way required by the employer. A computer technician refusing to fix computers is refusing to work, but an employee refusing to use a particular computer programme is refusing to do work in a specific way.
If the employees are contractually obliged to perform the work demanded of them, and the employer's instructions are reasonable, the employees' refusal amounts to insubordination. It is not unfair to dismiss employees for refusing to comply with their employers' instructions to perform the work required by their contracts.
What if the employee refuses to carry out an order not in accordance with the contract, but with how the employer runs his business? This will depend on the facts: If the instructions are reasonable, such refusal could amount to insubordination.
In Kroukam v SA Airlink, Kroukam was an airline pilot who doubled as a shop steward. He was dismissed after deposing to an affidavit for the purposes of an urgent application by his union to have the company's senior manager committed for contempt of court. He was charged with a number of offences, including gross insubordination. The company claimed that he had divulged the content of an off-the-record discussion in his affidavit, and also that he had refused to submit to a health test required of pilots. The Labour Court ruled that this was not an automatically unfair dismissal. On appeal, however, the court held unanimously that the main or dominant reason for Kroukam's dismissal was his involvement in litigation against the company. The court held, accordingly, that such a dismissal was indeed automatically unfair.

#### Pregnancy dismissals

Section 187(1)(e) is one of a number of statutory provisions aimed at protecting women in employment. Prior to these types of provisions, a woman who left work to have a baby was largely at the mercy of her employer. Under the common law, her absence could be treated as a reason for termination of the contract.
Now, according to the EEA and the LRA, dismissal is unlawful if it is for any reason regarding pregnancy or discrimination on the ground of pregnancy. The employee has no duty to inform her employer that she is pregnant; the employer has no right to ask and demand an answer. Accordingly, a woman may not now be dismissed in any circumstances merely because she is pregnant.
Section 187(1)(e) also renders impermissible the dismissal of a woman on maternity leave (now up to four months under the new Basic Conditions of Employment Act).
Nothing precludes an employer from dismissing a pregnant employee for operational requirements, provided that the court can be persuaded that there was indeed a valid economic or related reason.
In Whitehead v Woolworths, the court held that an employer may have regard to economic considerations, including the woman's availability to perform her services, when considering whether to employ a pregnant applicant.
Section 187(1)(e) embraces any reason "related to her pregnancy." It therefore includes reasonable absences for medical attention and changes in the woman's physical configuration, which may dispose certain employers to fire employees engaged in certain types of work.
If the main reason for the dismissal is the employee's pregnancy, the employer may not rely on an ancillary reason like the employee's alleged deceit in not disclosing her condition. Conversely, a pregnant woman may not rely on her pregnancy as a defence against conduct that constitutes a disciplinary offence.
Mashava, in Mashava v Cuzen & Woods Attorneys, was admitted as a candidate attorney at the firm. At the time of her employment, she was pregnant. She did not disclose this. The firm accordingly dismissed her, but the court held that this was automatically unfair. The employer could not rely on her deceit regarding her condition as a reason for dismissal.

##### Fair dismissal

Fair dismissals are composed of two golden threads: substantive fairness and procedural fairness. Both must be present in order for the dismissal to be fair and in accordance with the labour legislation. Employees may be dismissed fairly only for misconduct, incapacity and operational reasons. Each of these has its own procedure, which must be followed.
Any person considering whether or not the reason for dismissal is fair, or whether or not the dismissal was effected in accordance with a fair procedure, must take into account any relevant code of good practice issued in terms of the Act.

#### Form and content of disciplinary codes of conduct
### Dismissal for operational requirements
#### Changes to employee's terms and conditions of employment

A business may have to be restructured or amalgamated with another enterprise, or its mode of operation may have to be altered in order to ensure its survival or to make it more competitive.
These changes may lead to an employee's becoming redundant, but changes of this nature may also lead to the employee's being offered a new position, with changes to the terms and conditions of employment.
If the employee unreasonably refuses to accept the changes to the terms and conditions of employment, the employee may be dismissed for operational requirements.
In WL Ochse Webb & Pretorius v Vermeulen, the employee was a tomato salesman for WL Ochse (the employer) and was paid a basic salary and commission. He earned more than the other employees, as the sale of tomatoes attracted a higher commission than the sale of the vegetables sold by the other employees. This caused dissatisfaction among the other workers, which the employer tried to address by proposing a new remuneration system. The salesman was given three alternatives:
* He could accept the new system.
* He could present an alternative system.
* He could resign.
He proposed that the old system be retained. When this proposal was rejected by the employer, he resigned.
The court held that the employer had not acted unfairly, as a successful business requires contented employees. Unhappiness can lead to several problems, such as labour unrest and a drop in productivity. A commercial rationale for the changes was thus established by the employer.
Dismissal to compel an employee to accept changes to terms and conditions of employment is branded as automatically unfair by section 187(1)(c) of the LRA. The primary motive for dismissal must be a commercial rationale or operational reason in order for the dismissal to be fair.
The fundamental difference between an operational requirement dismissal and an automatically unfair dismissal is the employer's reason for the dismissal. If an employer dismisses employees because the terms and conditions of employment must be altered for the business to continue being viable, the employees may be fairly dismissed, as they no longer serve the employer's operational requirements.
In Fry's Metals v National Union of Metalworkers, the court discussed the difference between an operational-requirement dismissal and an automatically unfair dismissal:
* In the case of a dismissal due to operational requirements, the purpose is to get rid of employees who do not meet the business requirements of the employer, so that new employees who will meet the business requirements can be employed.
* In the case of an automatically unfair dismissal, the employer wants his existing employees to agree to a change of their terms and conditions of employment, and has the attitude that, if the employees do not agree to the changes, he will dismiss them.
A change in the terms and conditions of employment need not always be the result of changes regarding the business. The circumstances or attitude of the employee could change. This could have such serious economic repercussions for the employer that the latter deems it vital to change the employee's conditions of employment.
The nature of a business may be such that special demands are made on the employees. It may be essential for the economic success of the business, for example, that the employees are able and willing to work overtime. The employee's inability or refusal to do so could jeopardise the well-being of the business; therefore a dismissal would be fair.

#### Incompatibility and related reasons

The courts have accepted than an employee whose actions negatively affect the operation of a business may be dismissed. This may occur where certain actions of the employee create disharmony among his co-workers, as when, for example, he antagonises co-workers by continually making racist or sexist remarks.
In Erasmus v BB Bread, employees called for the dismissal of a manager because of his problematic attitude towards them, and his having made derogatory remarks, particularly aimed at black employees. The Industrial Court (in terms of the old LRA) held that his dismissal was for a valid and fair reason, as the employer is entitled to insist on reasonably harmonious interpersonal relationships between employees. If sound relationships appear to be impossible, the employer may be entitled to remove the employee from the scene.
In East Rand Proprietary Mines v UPUSA, the issue was the fairness of the dismissal of a number of Zulu-speaking workers after violent clashes between them and workers belonging to other ethnic groups. Although the court found that the dismissal had been unfair in the circumstances, it did acknowledge that a dismissal which had its roots in an arbitrary ground, such as ethnic origin, could be fair if the employer could prove that dismissal was the only option left to ensure the safety of the targeted employees and the continued well-being of the business. The court held that an employer may dismiss employees because it cannot guarantee their safety in light of the ethnic hostilities, but the employer must be able to show that it truly had no other alternative.

#### Breakdown in the trust relationship

The relationship between the employer and employee is one of trust. It entails the confidence that the employee is adhering to the common-law duty to act in good faith towards and in the best interests of the business.
If the facts show that this duty is breached, the employee is guilty of misconduct and, if sufficiently serious, may be dismissed.
If the employer is unable to prove such a breach on a balance of probabilities, the employee may not be dismissed for misconduct, but may be dismissed for operational reasons, as such mistrust is counter-productive to the operation of the business.
In Food & Allied Workers Union v Amalgamated Beverage Industries, the Industrial Court accepted that the dismissal of a number of employees on suspicion of assault had an operational rationale to it.

#### Courts' changing views

In the past, the courts took the view that the function of the court is not to second-guess the employer's decision. It is not up to the court to ask whether it was the "best" decision under those circumstances; it needed only to consider whether it was a rational, commercial or operational decision.
Now the courts take a closer view of the employer's business decisions.
In BMD Knitting Mills v SA Clothing & Textile Workers Union, the court departed from its deferential approach and focused on the fairness of the reason to both parties:
   The starting point is whether there is a commercial rationale for the decision. But rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test.
In Chemical Workers Industrial Union v Algorax, the court considered itself to be entitled to scrutinize the employer's business reasoning and decision-making in considerable detail. The reasoning given is that the court should not hesitate to deal with an issue which requires no special expertise, skills or knowledge that it does not have, but simply requires common sense or logic.
The most important implication of this approach is that the employer will need to convince the court not only that it has considered alternatives, but that it has chosen the option that makes the best business sense.

#### Consultation process

The consultation process is at the heart of procedural fairness in the case of dismissal for operational requirements.
Section 189(1) of the LRA provides that, when an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult
* any person whom the employer is required to consult in terms of a collective agreement;
* if there is no such collective agreement,
** a workplace forum, if such exists; and
** any registered trade union whose members are likely to be affected;
* if there is no workplace forum, any registered trade union whose members are likely to be affected; or
* if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.
In United National Breweries v Khanyeza, the court held that, where a union is recognized as a consulting party in a collective agreement, it is entitled to consult on behalf of all employees, even those falling outside the bargaining unit for which the union is recognised.
Note that consultation must take place when the employer "contemplates dismissal"—when the possibility of dismissal is foreseen, but the final decision to dismiss has not been reached. At most, therefore, the employer must have an intention to retrench.
Item 3 of the Code further entrenches the idea that consultation must take place when dismissal is "contemplated."
This ensures that the employees are afforded the opportunity to influence the employer in its final decision to dismiss or not to dismiss.
Section 189 does not prescribe the period over which consultation should extend, but Item 5 of the Code states that the circumstances of each case are relevant to the determination of a reasonable period.
Item 6 further states that the more urgent the need of the employer to respond to the factors giving rise to contemplated dismissals, the shorter the consultation process will be.
Consultation entails that the parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus. This means that the parties must embark on a joint problem-solving exercise, striving for consensus.
For the process to be meaningful, the employer must consult in good faith and not simply "go through the motions." This means the employer cannot have made up his mind to dismiss prior to consultation, and must be prepared to keep an open mind with regard to the representations made.
The employees must engage properly, make representations and ensure that their representations are well founded and substantiated, and not merely prolong consultations.
Should the parties fail to reach consensus, the final decision remains that of the employer.
In NEHAWU v University of Pretoria, the Labour Appeal court held that, after restructuring had been exhaustively discussed by a steering committee, on which all stakeholders were represented, the university was not required to consult again on all those issues after formally giving notice in terms of section 189 of the LRA.

### Measures to mitigate the adverse effects of the dismissals

The employer may, for example, assist the employee in finding alternative work by giving the employee time without loss of pay to search for alternative work.
The employer may also make an office available in which to complete job applications and arrange interviews.
The employer may provide a reference for the employee.
In Sikhosana v Sasol Synthetic Fuels, the court noted that the LRA contemplates a hierarchy of consulting parties, each if applicable excluding its successors. The courts apply section 189(1) strictly. It was held that, although appropriate measures to mitigate the adverse effects of the dismissals should be taken, employers are not required actively to seek alternative work for retrenched employees.
The employer may also undertake to give priority to the dismissed employee should a vacancy arise.

#### "Transfer"

The meaning of this word is wider than a mere "sale." In Schutte & Others v Powerplus Performance, the court held as follows:
   A business or part of a business, may be transferred in circumstances other than a sale. These may arise in the case of merger, takeover or as part of a broader process of restructuring within a company or group of companies. Transfer can take place by virtue of an exchange of assets or a donation [.... G]iven the range of circumstances under which a transfer can take place, the need for an agreed price or valuation may not arise. Consideration may take some other form. The outsourcing in this matter was part of a broader process of restructuring and must be seen against the backdrop of the [old employer's] acquisition of 50% stake in the [new employer].

#### "As a Going Concern"

Once it is established that there was a transfer, the important question is whether that transfer was of the "whole or a part of any business, trade, undertaking or service [...] as a going concern."
A distinction is often made between three ways of transferring a business:
* a sale of shares;
* a sale of assets; and
* a sale of the business itself.
In respect of a sale of shares, it has been held that a distinction should be made between a transfer of a business as a going concern and a transfer of possession and control of a business: the result of a sale of shares. A sale of shares is excluded from the ambit of section 197.
In respect of a sale of assets, the court in Kgethe v LMK Manufacturing held that an agreement to sell a portion of the assets of a business is not a transfer as a going concern. Although this judgment was overturned on appeal, it was on the basis that the court was not entitled to make a finding as to the true of the agreement. Therefore, the previous decision is still tenuous authority for the proposition that a sale of assets does not constitute a transfer as a going concern.
In Schutte v Powerplus Performance, however, the court held that, irrespective of the form the agreement takes, the court will look to the substance of the agreement to determine whether or not it is transferred "as a going concern."
The following factors may be taken into account in finding that there has been a transfer of a business as contemplated in section 197. This list is not exhaustive:
* a pre-existing relationship between the buyer and seller;
* a previous in-principle agreement to sell a certain part of the business;
* the wording of the contract itself;
* the fact that the buyer employed the majority of the employees;
* use of the same premises by the buyer; and
* continuation of the same activities without interruption.
In National Education Health & Allied Workers Union v University of Cape Town, the court held as follows:
   In deciding whether a business has been transferred as a going concern, regard must be had to the substance and not the form of the transaction. A number of factors will be relevant to [this question], such as the transfer or otherwise of assets both tangible and intangible, whether or not workers are taken over by the new employer, whether customers are transferred and whether or not the same business is being carried on by the new employer. What must be stressed is that this list [...] is not exhaustive and that none of them is decisive individually. They must all be considered in the overall assessment and therefore should not be considered in isolation.

#### Outsourcing

The question of whether or not an outsourcing of services falls within the ambit of section 197 has been subject to some scrutiny.
In SAMWU v Rand Airport Management Company, the employer outsourced its gardening and security services to outside contractors, as this was cheaper. The court held that the gardening and security services fell within the ambit of the term "service" in section 197, and that these services could be transferred from one employer to another. The next question considered was whether these services were being transferred as a going concern. The court referred to the decision in NEHAWU v University of Cape Town, and affirmed that a flexible approach must be taken in finding an objective answer to this question. On the facts, the court held that the agreement between RAMC and the other employer in respect of the outsourced services amounted to a transfer of a service within the ambit of section 197. On the evidence, however, the court could not decide whether the agreement between the two companies had been implemented, and therefore could not decide whether the contracts had been transferred from RAMC to the service provider.
This decision confirms, however, that an outsourcing exercise may constitute a transfer of a going concern as envisaged in section 197. The Labour Appeal court did not specify, however, what factors are to be taken into account, so this does not provide a final answer to the question of whether or not all outsourcing arrangements will fall within section 197.

### General rules

Once it is established that s197 applies, one must consider the effect thereof. The four consequences of such a transfer are listed in section 197(2). These principles have far-reaching implications for the new employer, who may want to restructure the business and possibly retrench employees.
If the new employer decides to retrench employees, severance pay will be calculated on the basis of service with the old and new employer to determine the years of service.
Similarly, remuneration and benefits may be linked to years of service, which may also place a financial burden on the new employer.
Section 197 may also affect the freedom of the new employer to apply certain selection criteria in cases of retrenchment. In Keil v Foodgro (A Division of Leisurenet), Keil was first employed by MacRib and then by Foodgro, who bought MacRib as a going concern. Keil was employed in the same position by both employers. Foodgro sought to justify Keil's selection for retrenchment on the basis that it had applied LIFO, and that Keil's old contract was substituted with a new one when Foodgro bought the business. The court rejected this argument on the basis that section 197 provides for continuity of employment, so Foodgro should have taken Keil's service with MacRib into account. Foodgro's selection for dismissal was therefore fundamentally flawed. Keil was awarded nine months' compensation.
The new employer will also be expected to pay for the "sins" of the old employer. In NUMSA v Success Panelbeaters & Service Centre, an employee was unfairly dismissed by the old employer. The employee successfully challenged the fairness of the dismissal, the Labour Court ordering that the employee be reinstated. By this time, however, the old employer had sold the business as a going concern. The court held, accordingly, that the new employer was obliged to take the employee into service.
There are a number of additional principles relating to the consequences of a transfer.
Should the new employer not adhere to its obligations to provide transferred employees with at least substantially the same conditions or circumstances at work, and should this lead to termination of the contract by the employee, it will be considered an automatically unfair dismissal according to sections 186 to 187 of the LRA.

## Collective labour law

The power play between employers and employees is clearly in evidence in the engagement of employer and employee through collective labour law. The LRA, together with other labour legislation, lays down basic rights and duties and remedies for ensuring fairness in the employment relationship. These are matters relating to the rights of employees and are accordingly known as "rights issues." When it comes to creating new terms and conditions of employment—these are known as "interest issues" or "matters of mutual interest"—or to changing existing terms, no legislation exists which explicitly regulates the situation. These issues, it is assumed, are better dealt with by the parties themselves. A court may not, for example, determine an annual increase for employees, or decide whether or not a crèche facility at the workplace is mandatory, or whether employees should be permitted to take Friday afternoons off. The reason for this is that "it is impossible to regulate these matters of mutual interest." This is where collective bargaining comes into the picture.
The LRA recognizes the importance of collective bargaining and supports the mechanism:
   If collective bargaining can be compared to a boxing match, the LRA can be seen as the organiser of the boxing match and the employers and trade unions are the boxers on opposite sides. The LRA provides the basic rules to protect the boxers both inside and outside the boxing ring. This is done, for example, by protecting the right of employees to form and join trade unions and to participate in their activities. This applies equally to employers who can form employers' organisations.
Section 213 of the LRA defines a trade union as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organisation.” An employer organisation is defined as “any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions.”
The LRA regulates the registration of trade unions and employers' organisations. It creates bargaining fora, such as bargaining councils and statutory councils, and guarantees the right to freedom of association. It also regulates organisational rights and strikes and lock-outs.
Once workers are organised in a registered trade union, and employers in an employers' organisation, the power play between workers and employers begins. Employees may try to force the employer's hand by way of strike action, while the employer ma exert pressure on the employees by way of a lock-out. It is accepted that strike action will result in a certain measure of economic handship for the employer. Provided that the strike has obtained protected status in terms of the law—in other words, is not prohibited, and the prescribed procedures have been followed—such economic hardship is considered to be part and parcel of the power struggle between employees and their employers: "In fact, this is the whole idea!" The more the employer is hurt economically, the greater the chance that the strikers' demands will be met.
It is important to know when a strike or lock-out is protected, and when it is not, because that will determine the course of action and remedies for employers in the case of a strike, and for employees in the case of a lock-out.

### History
#### Industrial Conciliation Act (1924)

Between 1911 and 1918, a succession of laws was promulgated in South Africa which dealt with various industrial sectors, and with labour in general. Only in the aftermath of large-scale industrial unrest on the Witwatersrand in 1922, however, was any comprehensive attempt undertaken to regulate relations between management and organised labour. The tumult on the Rand led directly to the first comprehensive piece of labour legislation, the Industrial Conciliation Act 1924, which was also the first legislation to regulate strikes in the country. It also recognised and regulated lock-outs. The Act provided for the registration of white trade unions and employers’ organisations, "self-evidently also white," and established a framework for collective bargaining through industrial councils or conciliation boards, as well as a dispute settlement system. Although the Act was "largely voluntarist," compliance with its provisions and with collective agreements was enforced by criminal sanction. The 1924 Act resulted in greater wage disparity between different racial groups. The Industrial Conciliation Act dealt only with collective labour rights; individual rights were dealt with in a Wage Act in 1925.

#### Wiehahn Commission

This dualistic system of labour relations—one for blacks and the other for whites, "coloureds" and Indians (although the latter groups were also discriminated against)—lasted until the beginning of the 1980s. In 1977, the government appointed the Commission of Enquiry into Labour Legislation, commonly known as the Wiehahn Commission that made significant recommendations for change, which changed the face of collective bargaining in South Africa.$^{:488}$ It was tasked to examine the current legislation and make recommendations to maintain the peace in the labour system.$^{:488}$ The Commission produced a six-part report, the primary recommendations of which were:
* that full trade union rights be accorded black workers;
* that job reservation be scrapped;
* that a Manpower Commission be established; and
* that the Industrial Court replace the existing Industrial Tribunal and be given extended powers.
In an attempt to give effect to these recommendations, significant amendments were made to the Industrial Conciliation Act (renamed the Labour Relations Act 28 of 1956), which with further amendments formed the legislative structure for regulating collective labour relations for the next 15 years.
The country's labour laws were thus largely "deracialised." All African workers who were not migrant workers could now join trade unions. The National Manpower Commission, a statutory body comprising representatives from employers organisations, trades and the State, which would meet to discuss economic and industrial policy, was duly established.
In recognition of the fact dispute-resolution mechanisms, thitherto inadequate, needed to be bolstered, the Industrial Court (predecessor of the present-day Labour Court) was duly established, too. The Industrial Court was largely hands-off in respect of collective bargaining, in which it did not think it had any place involving itself here.
The last change to be implemented as a result of the commission's findings was the removal of race-based job reservation, which was seen as having contributed to the unrest. These changes led to a tremendous growth in the trade union movement, which proved instrumental, especially in the 1980s, in the struggle against apartheid.

#### Labour Relations Act (1995)

The system in place up to the advent of democracy, "when South Africa was shaken to the roots by the transformation of the apartheid regime into a fully democratic constitutional order," was very fragmented. There were numerous definitional problems, too. Given the prominent role played by trade unions in bringing down apartheid, and given "the rapid and large-scale movement of former union leaders and cadres into party politics and government, it is hardly surprising that much attention was given to labour rights m the new dispensation."
The right to fair labour practices, the right to bargain collectively and the right to strike were entrenched with a number of other fundamental rights in a new interim Constitution that came into force in 1993. Those rights remained entrenched in the final Constitution, adopted by the new democratic parliament on 8 May 1996. At that point, although all parties agreed that these fundamental labour rights should be given constitutional status (although there was some dispute about the extent of an employer's right to lock out), there was room for disagreement on the scope and content of those rights. The final Constitution provided that "national legislation may be enacted to regulate collective bargaining."
"From this cue," writes John Grogan, "the government set about preparing legislation to give flesh to the bones of the constitutional guarantees." The first step was to appoint a commission, under the chairmanship of Professor Halton Cheadle, to produce a draft Labour Relations Amendment Bill. This was accomplished six months later. The draft formed the basis of the new Labour Relations Act 66 of 1995, which appeared in its current form after "intensive debate" in the National Economic Development & Labour Council (NEDLAC), a body consisting of representatives of government, organised labour, and employers, including the Manpower Commission and the National Economic Forum. They started thrashing out a new framework, to deal comprehensively with both individual and collective labour law. Given the adversarial nature of the relationship between organised labour and employers up to that point,
   this was a revolutionary development. Under the watchful eye of government representatives, and with their participation, management and labour were entrusted with the task of developing the draft bill into a uniquely South African product that at once satisfied the aspirations of labour and the reservations of management, and yet conformed to the letter and spirit of the Constitution and the requirements of the International Labour Organization (ILO), of which South Africa was now a member.
This produced the current LRA, "yet another turning point." One of the hopes of the drafters was to change the adversarial stance which tended to be adopted by unions and management under the old dispensation to a more co-operative one. The LRA created new institutions for encouraging union-management cooperation, and revamped old ones, "in the hope this would help transform and mature attitudes and bargaining styles."

### Sources
#### Common law

The common law of South Africa, "an amalgam of principles drawn from Roman, Roman-Dutch, English and other jurisdictions, which were accepted and applied by the courts in colonial times and during the period that followed British rule after Union in 1910," plays virtually no role in collective labour law. Initially, in fact, employment law, or "the law of master and servant," was regarded as a branch of the law of lease. As such, the common law did not concern itself directly with collective bargaining; its focus instead was on the rights and duties of individual employees and employers, as reflected in the contract on which their relationship was based. The law did not recognize claims by employees which had not been conferred by agreement. Although the role of the common law is minimal, therefore, the common-law contractual relationship between employer and employee underpins collective labour law in general and collective bargaining in particular.

#### Constitution

Legislation therefore is pivotal. The Constitution, however, is more pivotal still. Section 23 enshrines the right to "fair labour practices," while section 18 provides that "everyone has the right to freedom of association." The right to strike, furthermore, has been explicitly constitutionalized. The Constitution also provides not only for the right of every worker "to form and join a trade union," but also for the right of every trade union "to form and join a federation," like COSATU. Similar rights are granted to employers and employers’ associations as well. The right to collective bargaining is constitutionalized, with a mandate for national legislation to regulate it. More controversially, the Constitution also provides that "national legislation may recognize union security arrangements contained in collective agreements."

#### Labour Relations Act

Collective bargaining is one of the ways in which the LRA gives effect to section 23 of the Constitution. It is also an important part of freedom of association. Among the first of the LRA's aspirations, listed in the Preamble, is "to regulate the organisational rights of trade unions." A trade union without organisational rights is not much of a trade union. Organisational rights allow the trade union to access the workplace, etc.
The Preamble also describes as a purpose of the LRA the promotion of collective bargaining, and the regulation of the rights to strike and to lock out. It seeks also to advance "the democratization of the workplace" by involving employees in decision-making through workplace forums, although these have not proliferated.
The LRA defines as an "employee" any person (excluding an independent contractor) who
* works for another person or the State;
* is entitled to receive remuneration for such work; and
* assists in conduct of the business.
"Trade union" is defined in the LRA as an association strictly of employees, whose principal purpose is to regulate relations between employees and employers. The trade union must act in the interests of its members. Trade unions also support individual members with individual disputes. A trade union must have an address in South Africa, and its name must not be so similar to that of another union "that it is likely to mislead or cause confusion." Other requirements are set out in section 95.
Excluded from the application of the LRA are the members of
* the National Defense Force;
* the National Intelligence Agency; and
* the South African Secret Service.

### Freedom of association

Freedom of association, "one of the cornerstones of liberal democracy," is also one of the basic principles of labour law, reflected in several ILO Conventions, in the LRA and in the Constitution. Freedom of association "stems from a basic human need for society, community, and shared purpose in a freely chosen enterprise [...] protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in a society." In short, people have the right to associate with others in order to defend and protect their common interests. This constitutes "both an individual and a collective human right." In addressing the individual facet of freedom of association, the Supreme Court of Canada, in Lavigne v Ontario recognized that "the essence of freedom of association is the protection of the individual interests in self-actualization and fulfillment that can be realized only through combination with others."
"However," writes Mpfariseni Budeli,
   freedom of association is important not only to facilitate effective participation in civil and political society. It is equally important in the field of social and economic activity and is particularly significant as a basis for securing trade union freedom from interference by the employer on the one hand and the government on the other.
Freedom of association in the workplace may be defined as "those legal and moral rights of workers to form unions, to join unions of their choice and to demand that their unions function independently." It also includes the right of workers to participate in these unions’ lawful activities. "Freedom of association must therefore be seen," according to Budeli, "as the foundation of the collective bargaining process," which contributes to ensuring fairness and equity in labour matters, and to facilitating orderly and stable industrial relations.
Freedom of association is the foundation of the collective-bargaining process. Before a group or collective may engage in collective bargaining, it is necessary that legal protection be extended to that group or collective. Legal measures are also necessary to protect the rights of people to belong to a group or collective. This is what freedom of association is all about: the legal protection of the freedom of persons to join a collective entity. The law, therefore, both permits people to join trade unions, and also protects their right to do so.
The ILO Committee of Experts has provided "what can be regarded as the correct approach concerning freedom of association and social policy." In the committee's view, freedom of association should be guaranteed in such a way as to allow trade unions to express their aspirations, and so as to provide an indispensable contribution to economic development and social progress.
The Constitution grants a general right to freedom of association to "everyone," as well as explicitly and specifically to trade unions. Section 23 of the Constitution protects the right of employees to form and join a trade union and to participate in the activities and programmes of that union. Freedom of association does not apply only to employees, however; the employer's freedom of association is protected, too: Section 23 also protects the right of employers to form and join employers’ organisations, and to participate in the activities and programmes of such organisations.
Both trade unions and employers' organisations have the right
* to determine their own administration programs and activities;
* "to organize; and
* "to form and join a federation."
Finally,
   every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this chapter the limitation must comply with section 36(1).
While the Constitution lays emphasis on the importance of freedom of association, the LRA emphasizes, protects and gives concrete content to this foundational right. The LRA recognizes the right of trade unions to organize themselves. Membership of a trade union is subject to the constitution of the trade union. This means that a union may determine, in its constitution, what types of employees may become members of the union, and what types of employees are disqualified from membership. Unless an employee qualifies for membership in terms of the union's constitution, he is ineligible for membership. This principle has its limits. A trade union which attempts, through its constitution, to limit its members to persons of a certain race or sex could find such a provision ruled invalid; "it would certainly not be registered in terms of the LRA."
Section 4 does not only protect the right to join and form a union. It also grants members of a union the right to participate in the affairs of the union. As a member of a trade union, an employee has the following rights:
* to participate in the union's lawful activities;
* to participate in the election of any of the union's office-bearers, officials or trade-union representatives;
* to stand for election, and be eligible for appointment, as an office-bearer or official, and to hold office if elected or appointed; and
* to stand for election, and be eligible for appointment, as a trade-union representative, and to carry out, if so elected or appointed, the functions of a trade-union representative in terms of the LRA or any collective agreement.
Again, these rights are subject to the constitution of the union. If the constitution of a union requires that the nomination of a candidate as union office-bearer be signed by ten members in good standing, and also that the election be by means of a secret ballot at the union's annual conference, these provisions of the union constitution must be complied with.
The LRA specifically grants employees the right to freedom of association, and protects both employees and people seeking employment, should this right be infringed by the employer. Section 5 of the LRA prohibits a wide range of actions which infringe the right to freedom of association in section 4. In terms of section 5(1), "No person may discriminate against an employee for exercising any right conferred by this Act." Examples of such discrimination would include an employer's dismissal of an employee, or failure to give an employee a discretionary annual bonus, because the employee joined a trade union, and an employer's resort to harassment against an employee because that employee has been elected as a trade-union representative.
The general protection of section 5(1) is complemented by section 5(2), which prohibits certain specific types of conduct that would undermine freedom of association. In terms of section 5(2)(a), no person may require an employee
* not to be a member of a trade union;
* not to become a member; or
* to give up membership.
The LRA grants the right of freedom of association to employers as well.
Section 5(2)(b) provides that no person may prevent an employee (or a prospective employee) from exercising any right in terms of the LRA, or prevent an employee from participating in any LRA proceedings. For example, where an employer prevents an employee from standing for election as a trade-union representative, or where he threatens a union representative with dismissal because the representative is representing a union member at a disciplinary hearing, the employer would be acting unlawfully.
In terms of section 5(2)(c), employees or job seekers may not be prejudiced because of their trade-union membership, their joining a trade union, their participation in the lawful activities of a trade union, or their disclosure of information that they are entitled or required to disclose.
Section 5(3) prohibits an employer from attempting to persuade or tempt an employee into surrendering rights granted in terms of the LRA. The employer may not, for example, offer to promote the employee, or promise a wage increase, on the condition that the employee surrender rights accorded him by the LRA.
Section 5(4) provides that any contract of employment that limits freedom of association, either directly or indirectly, is regarded as invalid—irrespective of whether or not the contract was concluded before the LRA came into effect.
In terms of section 187 of the LRA, it will be an automatically unfair dismissal if the employer, in dismissing an employee, acts contrary to the provisions protecting an employee's right to freedom of association.
The protection of freedom of association, then, has two aspects:
* Employers and employees must be protected against state infringement of the right. If the legislature enacts legislation that infringes the right, it may be challenged on the basis that it is in conflict with section 23 of the Constitution (South African National defense Union v Min of Defense and another).
* Employees’ freedom of association should be protected against attempts by the employer to infringe this right. It is in this regard that the LRA plays an important role.
Although the right to freedom of association is not only guaranteed in terms of the LRA, but also in terms of the Constitution, the scope of this right has not been tested. The question has arisen, however, of whether or not groups excluded from the application of the LRA, such as the Defense Force, are entitled to form and join trade unions, based on their constitutional right to freedom of association. The issue came before the Constitutional Court in SANDU v Minister of Defence. The court found that, although uniformed members of the South African Defense Force, the Secret Service and the Intelligence Service are excluded from the protection of the LRA, they may claim the right to freedom of association under section 23 of the Constitution.
Section 4 of the LRA states that all employees have the rights set out in that section. Section 4 therefore applies to senior managers as well. This may in some circumstances, "and does," cause problems both for employers and for the managers themselves. A senior manager involved in the formulation of an employer's approach to the annual wage negotiations (including its "final offer") may not be able to perform his functions properly if he is also a member of the union sitting on the other side of the bargaining table. It might be difficult, too, for the manager not to divulge confidential information, bearing on the bargaining process, to the union.
This issue arose for decision in the case of Independent Municipal and Allied Trade Union v Rustenburg Transitional Council, where the Labour Court declared unconstitutional a prohibition on senior managers holding executive positions within a union. The court indicated, however, that there are limitations to the scope of section 4. It pointed out that, in terms of common-law principles, an employee owes an employer a "duty of fidelity"—a duty to act in good faith. Because of the conflicting aims of trade unions and employers, the joining of a union and participation in its affairs may, in terms of common-law principles at least, and especially in the case of senior managerial employees, breach this duty of fidelity.
Common-law principles have been amended by the Constitution, and especially by section 4 of the LRA. The court in IMATU stated that the rights granted in section 4 are "unequivocal and unconditional," but that they are not unlimited. Employees, including senior managers, are entitled to join trade unions and take part in their affairs, but this does not relieve them of their contractual obligations to their employers. If, for example, an employee takes time off without permission to attend to union affairs, the employee may be disciplined on the basis of misconduct. If a senior employee, part of whose job it is to conduct disciplinary enquiries, refuses to undertake this task when union members are disciplined, this will amount to incapacity.
A senior employee who has access to confidential information of the employer must also, the court added, tread carefully when conducting trade-union business, and ensure that this information is not disclosed.
In FAWU v The Cold Chain, where an employee was offered a managerial position as an alternative to retrenchment, on condition that he no longer participated in the activities of the union, he refused and was retrenched, and the court found his dismissal to be automatically unfair, holding that there was nothing absurd in permitting a senior managerial employee to participate in the activities of a trade union—provided that the employee complies with his contractual obligations.
In Kroukam v SA Airlink, the court held that Kroukam's dismissal was automatically unfair in terms of section 187(1)(d) of LRA, because he had been dismissed for union activities and for initiating litigation against the company on behalf of his union. The court, in delivering its verdict, cautioned against the argument that participation in trade-union activities destroys the trust relationship between employer and employee; such an argument is unacceptable on policy grounds.
Managerial employees, therefore, must balance the right to freedom of association with their common-law duty to act in good faith towards their employers. If a manager, for example, divulges information to the trade union that he acquired by virtue of his managerial position, he may be disciplined.
Sections 6 and 7 of the LRA grant and protect employer rights to freedom of association in terms similar to those granted to employees: to form, join and participate in the activities of employers’ organisations.

#### Union security arrangements

The Constitution allows for "union security arrangements contained in collective agreements." There is no firm definition of the term "union-security arrangements," but it is generally viewed as a generic term for a collective agreement between an employer or employers’ organisation and a trade union or trade unions, in terms of which union membership, or alternatively the payment of trade union subscriptions, is a condition of employment for all employees. Clearly this infringes upon an employee's right to freedom of association. Union security arrangements therefore require compulsory union membership, or compulsory payment of a union subscription.
In the South African context, the term "union-security arrangements" refers to the so-called "closed-shop" and "agency-shop" agreements. The only limits set in the Constitution are that such agreements must
* be contained in a collective agreement; and
* comply with the general limitations clause of the Constitution.
The two types of union security arrangements are illustrated by way of the following example:
   K employs 100 employees. 60 of them belong to trade union T. These members pay a monthly membership fee of R20. From the other 40 employees 10 belong to union R and 30 are non-unionised. Every year with wage negotiations, T negotiates with K and the increase agreed on is applied across the board. T feels that it does all the hard work which both union and non-union members benefit from. If T concludes an agency-shop agreement with K, it will mean that K will deduct an agency fee of R20 from the salaries of all the other 40 employees and pay it over to T. The other 40 employees do not have to become members of T [... but] the members of R will pay their own membership fee for R as well as the R20 agency fee.
   If K and T conclude a closed-shop agreement, it will mean that all other 40 employees of K must become members of T. R will no longer be allowed to operate in the workplace. All 100 employees will have to pay the R20 membership fee to T.

##### Controversy

The reason for these agreements relates to the nature and practice of collective bargaining. Under certain circumstances, employees who are not members of a trade union will be bound by the provisions of an agreement entered into by the union. In other circumstances, the employer may, in the interests of administrative convenience, extend the provisions of a collective agreement to non-union members. In effect, employees who are not members of the trade union may derive benefits from a collective agreement entered into by a union. "Understandably," unions have reservations about this state of affairs. These non-union employees are sometimes called "free riders," because they derive benefits for free: They do not pay union subscriptions, but they still obtain the benefits of the union's collective bargaining. This is the main argument in favour of forcing employees either to belong to a union (in the case of closed-shop agreements) or to pay a fee (in the case of agency-shop agreements).
Those who support union-security arrangements argue that they are necessary to avoid free riders. Furthermore, there is a view that they encourage "responsible" unionism. They support collective bargaining by aiding the development of strong and representative trade unions. Such arrangements are said to give union organizers a sense of security, and to enable them to devote themselves to the long-term interest of their members, "instead of collecting subscriptions and trying to persuade reluctant employees to join." For some, the main justification for union-security arrangements is that they add to the power of the unions during the collective-bargaining process, creating a more effective counterbalance to the naturally superior economic power of the corporate employer. This they do by preventing the defection of members during wage bargaining which may lead to strike action.
There may also be some benefit in such arrangements for the employer. If all employees belong to one union (or contribute to that union), the employer need only deal with that specific union. As a collective-bargaining relationship grows, a certain pattern and consistency of collective bargaining can thus be formed.
On the other hand, those who consider that the unions already possess monopoly status and excessive power see union security arrangements, particularly the closed shop, "as a main cause of undesirable state of affairs at the workplace." The main arguments against union security arrangements are,
* in the case of closed-shop agreements, that they give more power to the unions, since the union controls the pool of applicants for the post;
* in the case of agency-shop arrangements, that workers who are members of minority unions end up paying double subscriptions (one for their union and one for the representative union); and
* that union security arrangements, particularly closed-shop arrangements, infringe the right not to be a member of a trade union or the freedom not to associate, which is an intrinsic part of the right of freedom of association.
The two ILO Conventions on freedom of association and collective bargaining do not make any express reference to the notion of union-security arrangements. The ILO Committee also left it to the practice and regulation of each state to authorise and, where necessary, to regulate the use of union-security clauses in practice.
According to the committee, union security arrangements are compatible with the ILO Conventions on freedom of association, provided that they are the results of free negotiations between workers’ organisations and employers. As long as this is the case, then, the international body will not interfere with them, provided that the law of a particular country does not go so far as to impose them generally and make union membership compulsory. However, when trade union security clauses are imposed by the law itself, then the right to join an organization of one's own choosing is compromised, and those provisions will be incompatible with the ILO Convention. Accordingly, ILO member states are at liberty to include or not to include in their constitutions and labour legislation provisions regulating union-security arrangements.
Despite the arguments in favour of agency shops and closed shops, it would appear prima facie that these types of agreement do infringe the employee's freedom of association. Particularly in the case of a closed shop, an employee is no longer free not to associate: The employee must belong to a specific trade union. Employees are no longer free to choose which union they want to belong to, or even if they want to belong to a union at all. If the employee is not a member of a particular trade union, or if he loses his trade-union membership in terms of the union's constitution, the employee may end up out of a job.
It has been argued, accordingly, that the closed-shop agreement amounts to an infringement of the employee's freedom of association, as protected by sections 18 and 23 of the Constitution. The situation is different in the case of agency shops: The employee still has the freedom to choose whether or not he wants to belong to the union which is party to the collective agreement—"that is if the employee wants to belong to a union in the first place."
The solution to this problem lies in a constitutional provision, section 23(6) of the Constitution, which provides that "national Legislation may recognize union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with s 36(1)." In other words, union-security arrangements are permitted within the scheme of constitutional rights, and these arrangements may be recognized by national legislation (the LRA).
Agency shops and closed shops, then, are not automatically unconstitutional, but a limitation of any right by a union-security arrangement must comply with section 36(1) of the Constitution, which provides that a fundamental right, such as freedom of association, may be limited by legislation as long as that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Section 36(1) contains a list of the factors that must be considered:
* the nature of the right;
* the importance and purpose of the limitation of the right;
* the nature and extent of the limitation, and the purpose of the limitation; and
* whether or not there are less restrictive means to achieve this purpose.
Applied to agency and closed shops, the purpose of these arrangements is, at least in part, to enhance collective bargaining by the development of strong and powerful trade unions and stable bargaining relationships. (Collective bargaining is also protected by section 23 of the Constitution.)
While agency shops do not represent all that serious an infringement of freedom of association, it is clear that the closed-shop agreement does. The question (which still awaits an answer) is whether or not it is really necessary to force employees to become members of a union, especially when a less restrictive method—that is, the agency shop—exists.

##### Dispute resolution

Disputes about collective agreements (including closed- and agency-shop agreements) must be referred to the Commission for Conciliation, Mediation and Arbitration for conciliation. If conciliation fails, any party to the dispute may refer the matter to arbitration. By way of exception, the LRA makes provision in this context for an appeal against an award issued by the Commission for Conciliation, Mediation and Arbitration commissioner. The arbitration award may be taken on appeal to the Labour Court.

### Organisational rights
#### Election of shop stewards

Shop stewards are union representatives, "the infantry of the trade union." They play a very important role in industrial relations, being in the best position to represent the union in the workplace and to relay information about the workplace to the union. They look after the day-to-day operation of the union and the protection and assistance of workers with their work-related problems. Their statutory role is to ensure compliance with the law and with collective agreements.
Section 14 of the LRA provides that members of a registered trade union, provided that the union represents the majority of employees in the workplace, are entitled to elect trade-union representatives if the union has at least ten members in the workplace. The nomination, election, terms of office and removal from office of representatives are governed by the union's constitution.
The number of representatives is determined according to the number of union members in the specific workplace. For example, if there are only between ten and fifty union members, there will be two representatives. The amount increases on a sliding scale. The maximum number of representatives is twenty.
The functions of union representatives are set out in section 14(4) of the LRA:
* to assist and represent the employee at his request in grievance and disciplinary proceedings;
* to monitor the employer's compliance with the LRA and all other applicable laws;
* to report alleged contraventions of LRA or collective agreements to the employer, the representative trade union and the responsible authority or agency; and
* to perform any other function agreed between representative trade union and the employer.
Shop stewards are employed by the employer, not by the union. Grogan describes "the difficult position in which shop stewards find themselves," keeping two sets of books, or attempting "to serve two masters," their employer and their trade union—masters whose interests are often diametrically opposed. "This situation is particularly difficult," writes Grogan, "when shop stewards also occupy supervisory or managerial positions." The courts have held, however, that employers may not for this reason forbid managerial employees from being elected as shop stewards; the most they can do is to discipline them if their union role actually prevents them from performing their managerial duties properly.
The distinction between union officials and union representatives (like shop stewards) is an important one. Trade-union officials are employees of the trade union; they perform various duties for the trade union in this capacity. Trade-union representatives, on the other hand, remain employees of the particular employer at the workplace, although they also represent the union in various ways within the workplace where they are employed.

#### Time off for trade-union activities

Section 14(5) of LRA entitles the trade-union representative to "reasonable" time off, during working hours, without loss of pay, to perform union functions and be trained in any subject relevant to performance of those functions. The meaning of "reasonable" in relation to paid time off is not stated in the Act.
Attendance at union conferences and meetings may require the office-bearer to be absent from work. In terms of section 15(1), the office-bearer of a registered, sufficiently representative trade union is entitled to take reasonable leave during working hours for the purpose of performing the functions of his office. In terms of section 15(2), the union and employer may agree on the number of days’ leave, the number of days’ paid leave and the conditions attached to any leave. If the union and the employer are unable to reach an agreement, the dispute may be determined by an award made in terms of section 21 of the LRA.
No benchmark for shop stewards’ leave emerges from the decided cases, but arbitrators have generally accepted ten days per annum as "reasonable." Employers may take disciplinary action against shop stewards if they exceed or abuse their powers by, for example, intimidating employees, including other shop stewards. Employers are entitled to refuse to deal with shop stewards if they have committed serious misconduct.
Item 4(2) of the Code of Good Practice: Dismissal, seeks to discourage victimization of shop stewards by requiring employers to inform and "consult" their unions before taking disciplinary action against them for any reason. A number of cases concerning the dismissal of shop stewards have reached the courts. The approach in such cases is to determine
* the dominant reason for the dismissal; and then
* whether that reason relates to the performance by the shop steward of his or her duties.
If it does, the dismissal is ‘automatically’ unfair, and the shop steward will invariably be reinstated.

### Sufficient representation

Where the union is "sufficiently represented," it represents less than the majority of employees in the workplace. There is no fixed rule as to "sufficient representation;" it is decided on a case-by-case basis. A sufficiently representative union enjoys the following organisational rights:
* the right of access to the workplace;
* the right to deduction of membership fees from wages; and
* the right to leave of shop stewards for trade-union activities.
If the union is a member of a bargaining council, it enjoys the following organisational rights:
* access to the workplace; and
* deduction of membership fees from wages.
If it is a minority union, it may enforce its rights through collective bargaining and industrial action. Two or more trade unions may act jointly to acquire rights.
The LRA does not define "sufficient representation," but it does give guidelines. Factors to be taken into account would include the nature of the workplace and the industry involved, as well as the presence or absence of other unions with membership in the workplace. The approximate figure is thirty per cent.
In UPUSA v Komming Knitting, the Commissioner extended the right to access the workplace, together with the right to deductions of union subscriptions, to a union which, at the time of the award, represented just seven employees out of 31. The Commissioner made this decision on the basis
* that the union was the only union organising and recruiting at the workplace;
* that it had been present in the workplace since shortly after the employer's inception; and
* that its current low level of representation was due to high labour turnover.
The Commissioner held that the union seemed capable of recruiting a majority of the workers at the workplace.
In SACTWU v Marley, the Commission for Conciliation, Mediation and Arbitration refused organisational rights to a union with 42 per cent representativity, on the basis that another union represented 56 per cent of employees in the workplace, and because the employer had a long association with the other union, which included an agency-shop agreement.
In NUMSA v Feltex Foam, the question was whether differing degrees of "sufficient representativeness" could be set for different organisational rights: a higher degree for gaining access to workplace, for example, than for stop-order facilities. The Commission for Conciliation, Mediation and Arbitration held that there have to be very special circumstances to allow him to distinguish between such rights. If the arbitrator is prepared to grant one of these rights, in other words, there would have to be special circumstances to justify a refusal to grant any of the others.
In Organisation of Labour Affairs v Old Mutual Life Assurance, the Commissioner was prepared to order the employer to grant access to the workplace and stop-order facilities to a union with level of representativity which would not ordinarily have permitted the granting of these rights, on the basis that the rights had been granted to other unions with lower representativity . A similar approach was adopted in Group 4 Falck v DUSWO.
The effect of these decisions is that, when an employer grants organisational rights to a union with, for example, only ten per cent representativity, the employer cannot really argue that another union seeking organisation rights must have at least thirty per cent.
Section 18 allows an employer and majority union in a workplace, as well as parties to a bargaining council, to establish by collective agreement the level of representativeness required for the purposes of gaining access, deductions and leave at a particular workplace.
The only limit is that the agreed threshold must be applied equally to all unions seeking to exercise any, or all, of these rights.

### "Workplace"

The "workplace" is defined in section 213 of LRA. There is a distinction to be drawn, in this regard, between the public service and the private sector.
* In the public sector, the workplace is the national department, provincial administration, provincial department or organisational component contemplated in the Public Service Act.
* In the private sector, the workplace is the place where employees of the employer work.
If the private employer has two businesses, independent of each other by reason of size or function or organisation, the place where the employees work in connection with each independent operation constitutes the workplace for that operation. This foresees the possibility that geographically distinct operations may constitute one workplace. Commission for Conciliation, Mediation and Arbitration commissioners been unwilling to accept too easily that geographically distinct places of work constitute separate workplaces.
In Speciality Stores v SACCAWU, the Labour Court was loath to find, in the absence of proof by the trade union, that different stores of a retailer constituted different workplaces. The court also made it clear that the onus rests on the union to prove that two operations are two different workplaces.

### Through s 21 procedure

Briefly, the section-21 procedure involves notice by the union to the employer of its intention to seek organisational rights, consultation between union and employer in an attempt to reach a collective agreement, and referral by the union of a dispute, if any, to the CCMA, which will attempt to settle the matter through conciliation, failing which it will arbitrate the dispute and issue a binding award. The union in this case must be registered, and must enjoy a certain level of representation in the workplace.
The onus rests on the union to notify the employer, in writing, that it intends to seek the organisational rights conferred by the Act. The notice must contain the following information:
* the workplace in which the union seeks to exercise the rights;
* the representativity of the trade union in that workplace;
* the rights that the trade union wishes to exercise; and
* the manner in which the trade union wishes to exercise those rights.
The notice must be accompanied by a certified copy of the trade union registration certificate.
Within thirty days of receiving the notice, employer must meet with the union. The parties must then try to conclude a collective agreement regulating the manner in which the organisational rights will be exercised. The employer may refuse to grant union rights on the grounds there is a dispute as to what constitutes a "workplace," or because the employer argues that the union does not enjoy the required degree of representativeness.
If the parties fail to conclude a collective agreement, either of the parties may refer the dispute, in writing, to the Commission for Conciliation, Mediation and Arbitration for conciliation. If conciliation fails, either party may request that the dispute be arbitrated. The CCMA has jurisdiction to arbitrate only if the union has complied with all the provisions of section 21, which are peremptory. Failure by the union to comply with them will mean that Commission for Conciliation, Mediation and Arbitration may not deal with the dispute.
The CCMA commissioner will be called upon to decide whether or not the union is representative. Section 21 authorizes him to make inquiries, conduct a ballot and take all other relevant information into account.
Once the actual number of members has been established, section 21(8) provides that the commissioner
* must seek to minimize the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and
* must seek to minimize the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered union.
Here the LRA gives "clear legislative support for the principle of majoritarianism."
In this regard, the commissioner must consider
* the nature of the workplace;
* the nature of the one or more organisational rights that the registered trade union seeks to exercise;
* the nature of the sector in which the workplace is situated; and
* the organisational history at the workplace or any other workplace of the employer.
If the employer is of the opinion that the union is no longer representative, it may refer matter to the Commission for Conciliation, Mediation and Arbitration, requesting that it withdraw the organisational rights. The commissioner may withdraw any of the organisational rights once conferred which are exercised by any other registered trade union in respect of that workplace, if that other union has ceased to be a representative union.
In order to determine the membership or support of the registered trade union, the Commissioner may
* make any necessary inquiries;
* where appropriate, conduct a ballot of the relevant employees; and
* take into account any other relevant information.
The employer must co-operate with the Commissioner and make available any information and facilities that are reasonably necessary for this purpose. An employer who alleges that a union is no longer a representative trade union may apply to the CCMA to withdraw any of the organisational rights previously granted.
In summary, the section 21 procedure runs as follows:
* The union notifies the employer in writing that it intends to exercise organisational rights.
* Within thirty days of the notice, employer and union meet in an attempt to conclude a collective agreement.
* If a collective agreement is concluded, they need go no further with section 21; if not, either party refers the dispute in writing to the Commission for Conciliation, Mediation and Arbitration for conciliation.
* If the matter is not successfully conciliated, there are two options:
** Either party may request arbitration, where after a Commissioner may determine the representativeness of the union and the manner in which rights are to be exercised. The Commissioner may consider an application for withdrawal of the rights, and relevancy and confidentiality of the information. An arbitration award is binding on the parties.
** The union may strike, or the employer may lock out:
*** If the union gives notice of its intention to strike, it may not refer the dispute to arbitration for a period of twelve months from the date of the notice.
*** The same condition applies to an employer giving notice of a lock-out.
The LRA Amendment Bill now before parliament proposes to amend section 21. Section 8A of the proposed amendment would allow a non-majority trade union to bring shop stewards into the workplace.

#### Through strike action

The LRA would prohibit a strike in support of a demand that the employer grant all or some organisational rights to a union, because such a dispute may be referred to arbitration in terms of section 21. Section 65(2)(a) specifically permits a union which would otherwise have the right to refer a dispute about organisational rights to arbitration in terms of section 21 to embark on strike action in an attempt to force employer to grant these rights.
A trade union, including a minority union, may therefore strike in support of a demand for organisational rights even if it does not meet the statutory threshold for acquiring such rights. Except for the right to information, in fact, organisational rights are the only rights conferred by the LRA over which strikes are permitted.
This is the consequence of NUMSA v Bader Bop, where NUMSA, although not a majority union, sought to acquire the right to elect shop stewards by striking. The lower courts were divided. A divided Labour Appeal Court held that minority unions could not do strike for such a right because,
* once the union conceded that it lacked a majority, there would be no dispute over which to strike; and
* such a strike would be hit by section 65(1)(c), which prohibits strikes over disputes that either party may refer to arbitration.
This judgment was overturned by the Constitutional Court, however, which held that the minority unions may strike in support of demands for organisational rights to which they are not entitled under the LRA.
The Constitutional Court found that nothing in section 20 of the LRA precludes a collective agreement granting collective-bargaining rights, even if the qualification for representativity is not met. The court's interpretation of this was that, if a minority union asks for, but does not succeed in acquiring, the organisational rights in question, and if conciliation subsequently fails, the dispute-resolution mechanism is to strike for it.
This judgment has been severely criticized.
If the union uses the strike remedy, but is unsuccessful in forcing employer to grant the rights, the union loses the right to use the section-21 procedure for one year from date on which notice was given of the intention to go on strike.

#### Dispute resolution for organisational rights

If there is a dispute about the interpretation of organisational rights, any party may refer the dispute in writing to the Commission for Conciliation, Mediation and Arbitration for conciliation and, if conciliation fails, for arbitration.
Disputes about disclosure of information follow the same route. In determining the dispute, the Commissioner must strike a balance between the employer's right to privacy and the interests of sound collective bargaining. The Commissioner has a fairly wide discretion to make a suitable award to achieve this.

### Collective bargaining

The legal rules relating to freedom of association and organisational rights are all aimed at making collective bargaining possible. There are specific rules that govern the collective bargaining process and the result thereof: collective agreements.
Neither the Constitution nor the LRA defines "collective bargaining." This is primarily because the law does not impose a legal duty to bargain on employers and trade unions.
Collective bargaining must be understood as a process. The process of collective bargaining entails negotiations between the two parties:
* a union on the one hand; and
* an employer or an employers’ organisation on the other hand.
Broadly, then, the collective-bargaining process may be defined as a process whereby employers (or employers’ organisations) bargain with employee representatives (trade unions) about terms and conditions of employment, and about other matters of mutual interest.
Unlike mere consultation, collective bargaining presumes a willingness from each party, not only to listen to and consider the representations of the other party, but also to abandon its own fixed positions where possible, in order to find common ground.
Bargaining occurs, inter alia,
* where two opposing parties exchange demands and make counter-demands;
* where they propose (and accept or reject) compromises;
* where they negotiate; and
* where one party places pressure on the other to give in to its demands.
Bargaining, then, is a dynamic process.
Collective bargaining is mainly concerned with disputes of interest, but not to the exclusion of disputes of right.
The word "collective" refers to the fact that employees join in trade unions to increase their power in bargaining with employers over wages, working conditions and any other matters of mutual interest between them. It is important to note that, on the workers' side, only trade unions may engage in collective bargaining. Although a single employer can engage in collective bargaining, an individual employee cannot, by definition, engage in collective bargaining.
If successful, collective bargaining leads to a settlement and the conclusion of a collective agreement. If it fails, there are several options available to the employer or the union, including
* resort to a lock-out or a strike; and
* submitting the dispute to mediation.
When a trade union enters into the collective-bargaining process, it will normally have one of three objectives in mind:
* The first, and most important, is the regulation of terms and conditions of employment.
* The second is regulation of the relationship between the union and the employer in whose workplace it has members. The union may negotiate organisational rights with an employer.
* Linked to the first three objectives, the union may wish to attempt to resolve a dispute that has arisen between it and the employer.

#### Duty to bargain

It could be argued that the constitutional right to bargain collectively (s 23(5)) includes both a legally enforceable right to bargain collectively, as well as a corresponding duty to bargain collectively on the other party to the relationship. Since the LRA does not create a duty to bargain, this may give rise to the argument that the Act does not go far enough in protecting and giving content to the constitutional right. This debate may have to be solved by the courts in the future. For now, however, there is no general duty to bargain on employers and trade unions in terms of the LRA. An employer may refuse to engage with a trade union; in turn, the trade union may take strike action.
The question of whether the constitutional right to bargain collectively includes a duty on the other party has arisen in connection with one group of persons not covered by the Act: members of the South African National Defence Force (SANDF). In three separate disputes, the High Court had to consider whether the South African National Defense Force Union (SANDU) may rely on the provisions of section 23 in order to obtain a court order to require the State to bargain collectively with it. These decisions, and their arguments, were contradictory.
The SCA, on appeal, held that the constitutional provision does not impose a judicially enforceable duty to bargain on employers or employees. On further appeal, however, the Constitutional court left the question open. It did point out, however, that the contrary approach could create difficulties. It came close, then, to agreeing with the SCA that no duty to bargain collectively exists in South African labour law.
Although the LRA does not compel parties to bargain with each other, it encourages collective bargaining through the granting of organisational rights, the right to establish bargaining institutions and closed-shop and agency-shop agreements. Should an employer refuse to bargain, the Act allows for strike action by employees to convince the employer to bargain. A refusal to bargain includes:
* the employer's refusal to recognise a trade union as a bargaining agent;
* the employer's refusal to establish a bargaining council;
* the employer's withdrawal of recognition of a collective bargaining agent;
* the employer's resignation as a party to a bargaining council; and
* the employer disputing appropriate bargaining units, levels and topics.
Disputes regarding refusal to bargain must first be referred to the Commission for Conciliation, Mediation and Arbitration for an advisory award. An advisory award provides guidance only; it is not binding on the parties.

#### Bargaining agents

Collective bargaining is performed by bargaining agents, namely trade unions and employers’ organisations. The LRA sets requirements for unions and organisations relating to registration. A trade union is defined as an association of employees whose principal purpose is to regulate the relations between employers or employers’ organisations and employees. Only employees may be members of a trade union. Job seekers and ex-employees may not be members of a trade union.
To qualify as a trade union, an association of employees need not be registered. Registration is beneficial, however, since only a registered trade union is entitled to rights, such as the right to
* conclude a collective agreement enforceable under the LRA;
* acquire organisational rights;
* be a member of a bargaining council, statutory council and workplace forum; and
* conclude closed-shop and agency-shop agreements.
The powers and functions of a bargaining council are outlined in section 28 of the LRA. A bargaining council has three main functions:
* to conclude collective agreements;
* to enforce those collective agreements; and
* to prevent and resolve labour disputes.

#### Levels of bargaining

Collective bargaining can take place at plant level, sector level or industry level. The LRA encourages collective bargaining at sector or industry level. Provision is made for the establishment of bargaining councils for a particular sector. It is at this level that bargaining will take place in bargaining councils. Moreover, bargaining councils may be established in the private as well as the public sector. The private sector is the economic sector in which the State is not the employer; in the public sector, the State is the employer.

#### Collective agreements

The main goal of collective bargaining between an employer and a trade union is to reach consensus about certain matters and formalise their relationship by means of a collective agreement. A collective agreement regulates the rights and duties of parties, as well as the terms and conditions of the employment of workers.
In terms of section 213 of the LRA, a collective agreement is a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other
* one or more employees;
* one or more registered employers’ organisations; or
* one or more employers and one or more registered employers’ organisations.
The parties, therefore, are
* a registered trade union; and
* the employer/s and/or registered employers' organisation/s.

##### Contracts of employment

Where applicable, a collective agreement varies any contract of employment between an employee and an employer if they are both bound by the collective agreement.

### Workplace fora
#### Consultation

Consultation entails that the employer
* allows the forum to make representations and to advance alternative proposals; and
* considers and responds to these. If the employer disagrees with them, it must state the reasons for disagreeing.
Consultation must take place before the employer implements any proposal.

#### Matters for consultation

Matters for consultation include (unless they are regulated by a collective agreement) proposals relating to
* restructuring the workplace (for example, the introduction of new technology and new work methods);
* changes in the organisation of work;
* total or partial plant closure;
* mergers and transfers of ownership in so far as they affect the employees;
* the retrenchment of employees;
* exemption from any collective agreement or law;
* job grading;
* criteria for merit increases or the payment of discretionary bonuses;
* education and training;
* product development plans; and
* export promotion.
A bargaining council or a representative union and an employer may conclude a collective agreement granting a forum the right to be consulted about additional matters that fall within the council's registered scope.

#### Matters for joint decision making

Matters for joint decision making cannot be regulated by a collective agreement. Matters for joint decision making relate to
* disciplinary codes and procedures;
* the proper regulation of the workplace (except for work-related performance);
* measures designed to protect and advance persons disadvantaged by unfair discrimination; and
* changes by employer-representatives on boards of employer-controlled schemes with regard to social benefits.
A representative union and the employer may also enter into a collective agreement conferring on the forum joint decision making in respect of additional matters or removing other matters.
In fulfilling its duties to consult and to have joint decision making, an employer is required to disclose all relevant information that will allow the forum to participate effectively in consultation and joint decision making. The employer is not obliged to disclose information, however,
* that is legally privileged;
* that the employer may not disclose without contravening a law or court order,
* that is confidential and, if disclosed, may cause substantial harm to the employee or the employer; and
* private personal information relating to an employee (unless the employee has consented to the disclosure).
Disputes about disclosure of information must be referred to the Commission for Conciliation, Mediation and Arbitration. If parties fail to resolve the dispute through conciliation, any party to the dispute may request arbitration.
The Commissioner will not compel the employer to disclose "irrelevant" information.
Despite the potentially important influence that a forum may have on a workplace, few such forums are found in practice. This is due to employers' viewing fora as an inroad to managerial prerogative, and the concern of unions that fora will undermine collective bargaining structures.

### Industrial action

At the end of a collective-bargaining session or process, parties may either reach an agreement or fail to do so. If an agreement is reached, a collective agreement is concluded. If no agreement is reached, parties may agree on mediation or arbitration, or decide to exert pressure on each other through industrial action.
Industrial action, sometimes also called collective action, generally refers to employees acting together to force the hand of the employer, but employers, too, for the purposes of industrial action, employers may act individually or collectively with other employers to lock out employees. Industrial action for employees can take the form of strikes, secondary strikes, pickets and protest action, while employers have recourse to lock-outs.
Strikes and lock-outs are a reality in the workplace—"just like friction in a marriage is a reality." Conflict in the workplace—"and in a marriage"—is not necessarily negative:
   It gives the parties an opportunity to reaffirm their different bargaining strengths and positions. Conflict becomes problematic only if matters get out of hand as a result of the power struggle. That will then undermine the purpose of the conflict.
   Another problematic aspect of conflict is that once parties are in a stand-off, the matter will not be resolved without a "loser" and a "winner". In the long run, this may lead to a deterioration of the relationship and it may even spark further friction about other issues.
In the workplace, again "just like in a marriage," the law seeks "to ensure healthy and productive conflict that can lead to the resolution of matters of mutual interest." The LRA sets out the manner in which this is to be done by regulating various types of industrial action.
In the past few years, South Africa has seen a high level of industrial action. The Department of Labour has reported that working days lost to work stoppages in 2010 were the highest ever, with approximately 20,674,737 working days lost from about 74 work stoppages; in 2009, there were only 51.
The right to strike is clearly protected in South Africa through the Constitution, which guarantees that "every worker has the right [...] to strike." The Constitution does not give employers the right to lock out employees. Employers’ right to lock-out is implied in the Constitution's express protection of the right to bargain collectively. The LRA provides, however, in section 64(1), that every employee has the right to strike, and that every employer has recourse to a lock-out.
Neither the right to strike nor the right to a lock-out is directly protected in terms of an ILO Convention, but it is indirectly done through ILO Convention 87 and ILO Convention 98, which were both ratified by South Africa.
Both strikes and lock-outs are essential elements of collective bargaining, but "such rights should be used only as measures of last resort." Strikes are used by employees to back up their demands in promoting and defending their employment-related interests; lock-outs are used by employers to back up their employment-related demands.
In matters of industrial action, "it is important to know what type of action to take." Different types of industrial action serve different purposes. The purpose of the employer or the employees will determine the type of action to be taken:
* A strike is undertaken to remedy a grievance or resolve any matter of mutual interest between employees and employers.
* A secondary strike is a strike in support of another strike (known as the primary strike) in order to put pressure on the primary employer to accede to the demands of its striking employees.
* A picket is a peaceful demonstration of support for any protected strike, or of opposition to any lock-out.
* Protest action is undertaken to promote or defend the socioeconomic interests of workers.
* A lock-out is undertaken by an employer to compel its employees to accept a demand in respect of any matter of mutual interest between them.
Not only is it important to ensure that the right type of action is chosen; it is important "also to ensure that the action will be protected by the LRA." In the case of a protected strike or lock-out—it used to be called a "legal" strike or lock-out under the 1956 LRA—the parties taking part in the action are not guilty of breach of contract and cannot be dismissed for that reason. The court may not order an interdict to stop the action from continuing, and the participants in the industrial action will not be held liable for compensation for the work stoppage.

#### Definition of a strike

"Strike" is defined as follows:
   the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory.
Except for "protest action," any intentional refusal to work will amount to misconduct unless it can be regarded as strike action in terms of the above definition. In order to qualify as strike action, the employees must comply with the following three elements contained in the definition:
* there must be a refusal to work (a complete or partial retardation or obstruction of work);
* the refusal must be a concerted action by persons (employed by the same or different employers); and
* the refusal must be for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between an employer and an employee.
There must be a refusal to work in order for an action to qualify as a strike. This is the first hurdle that employees must cross. The refusal to work must be
* in relation to work which employees are contractually obliged to perform; and
* not contrary to the law or a collective agreement.
The action may be partial (in that the employees still perform some of their duties), or complete (in that the employees do not perform any of their duties), or the retardation of work (where employees work, but at a reduced pace), or obstruction of work (where employees disturb production through their actions). A refusal by employees to work overtime also constitutes a strike, whether the overtime is compulsory (required by a contract or by a collective agreement) or voluntary.
Although the Constitution grants individual workers the right to strike, the right itself cannot be exercised individually. The action must be
* "concerted;"
* "by persons;" and
* constitute collective action.
An individual employee cannot engage in a strike. More than one person must be involved in order for the action to constitute a strike. The action must be carried out by people acting together who are or have been employed by the same employer or by different employers (as in the case of an industry-wide strike). The action is thus directed at the employer or employers. If, for example, employees refuse to work because they have a demand against a union, that will not amount to strike action. An exception exists in respect of secondary strikes.
The refusal to work must be for the common purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee. A grievance or an issue in dispute in respect of a matter of mutual interest must exist, therefore, before an action may be deemed a strike. Where there is no grievance or dispute against the employer, there cannot be a strike. While the concept of "mutual interest" is not defined in the LRA, it was described as "whatever can be fairly and reasonably regarded as calculated to promote the well-being of the trade concerned."
Matters of mutual interest may include, for example,
* terms and conditions of employment;
* health and safety issues;
* the negotiation of disciplinary procedures; and
* wage increases.
An important indication that a matter is one of mutual interest would be that the matter can be dealt with through collective bargaining. For example, political issues or demands against the State do not qualify, unless the State is the employer and the demands relate to the State's role as employer. These political issues or demands should be dealt with by way of protest action.

### Definition of a lock-out

While employees have the right to strike in terms of the Constitution and the LRA, employers do not have a right to lock-out, but they do have recourse to a lock-out in terms of section 64 of the LRA.
"Lock-out" is defined as
   the exclusion by an employer of employees from the employer's workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees’ contracts of employment in the course of or for the purpose of that exclusion.
To constitute a lock-out, the employer's action must contain the following two elements:
* The employer must exclude employees from the workplace. This normally happens when the employer closes the workplace entrance or gates and refuses to permit employees to enter the premises. In practice, this allows the employer to refuse to pay the employees their remuneration. This is in line with the LRA, which states that the employer is not obliged to remunerate an employee for services not rendered during a protected strike or a protected lock-out. Put differently, the principle of "no work, no pay" applies. In terms of the definition of a lock-out, the employer cannot exclude only one employee; it must be a group of employees.
* The exclusion must be for the purpose of compelling the employees to accept a demand in any matter of mutual interest between employer and employees. If it is for a different purpose, the action will not constitute a lock-out and will be breach of contract. "Matters of mutual interest" with regard to strikes are also "matters of mutual interest" in the case of lock-outs.

#### Procedural requirements for protection of strikes and lock-outs in terms of section 64

The second hurdle to be crossed in order for a strike or lock-out to be regarded as protected is that certain procedural requirements must be complied with. This hurdle stands on the three legs prescribed by section 64(1):
* the issue in dispute must be referred to the CCMA (Commission for Conciliation, Mediation and Arbitration) for conciliation;
* the CCMA must have issued a certificate to verify that the dispute has not yet been resolved.
* A written notice must be handed to the employer, employees or trade union at least 48 business hours prior to the commencement of the strike or lock-out.

#### The issue in dispute

The LRA defines an "issue in dispute" as "the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out." The issue in dispute must fall within the definition of a strike (or lock-out). In other words, the demand, grievance or dispute about which the employees strike (or the employer locks out) must relate to a matter of mutual interest.
The LRA requires that parties must try to resolve the issue. It requires that the parties first refer the dispute to a bargaining council (if there is one for that sector). If no bargaining council exists, the dispute must be referred to the Commission for Conciliation, Mediation and Arbitration for conciliation.

#### Certificate of outcome

The bargaining council or the Commission for Conciliation, Mediation and Arbitration must attempt to resolve the dispute through conciliation within thirty days of the referral. If the parties to the dispute reach an agreement, the dispute is resolved. If no agreement is reached, the conciliator must issue a certificate to indicate that the matter has not been resolved. After this (or after thirty days have gone by since referral of the dispute for conciliation), the parties can give notice of the proposed strike (or lock-out).

#### Prescribed notice

If conciliation fails, or thirty days have passed since the referral of the dispute, at least 48 hours’ written notice must be given of the commencement of the strike or lock-out. If the State is the employer, at least seven days’ notice must be given. If the employer is a member of an employers’ organisation, notice must be given to the employers’ organisation.
In case of a proposed lock-out, the employer must give notice to the union involved in the dispute, or to the employees directly if there is no union.
The LRA does not prescribe what details the notice must contain; it only regulates that it must be in writing and must be issued 48 hours before commencement of the industrial action.
There are some exceptions, according to which, the parties do not need to follow the procedures prescribed by the LRA:
* if the parties to the dispute are members of a bargaining council and the dispute followed the procedure set by that council's constitution;
* if the parties concluded a collective agreement with prescribed procedures to be followed before they strike or lock-out, and they have complied with that agreement,
* if an employer implements an unprotected lock-out and the employees strike in response to that (and the same would apply if the employer locked-out the employees in response to an unprotected strike);
* if a strike takes place after the employer has unilaterally changed the terms and conditions of employment, and the employer fails to rectify this despite prior warning; and
* if an employer refuses to bargain with a union, in which case the dispute must first be referred for conciliation and then for advisory arbitration before notice of a strike can be given.