Die grondwetlikheid van die vasstelling van maksimum werkure ingevolge die Wet op Basiese Diensvoorwaardes

English: The purpose of the Basic Conditions of Employment Act is to advance economic development and social justice by fulfilling the primary objects of the Act which are to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution, and to comply with obligations incurred by the Republic as a member state of the International Labour Organisation. Section 9(1) read with section 10(1) of the Act has the effect that employees covered by the sections are not allowed to work for the same employer for more than 55 hours per week. This does not prevent employees from working longer hours in total in terms of employment agreements with different employers, an option that entails certain disadvantages. The study investigates the constitutionality of the limitation of the opportunity to work for longer hours for the same employer. Reference to comparative law focuses on the legal position in America, Germany and Canada. Throughout the study the notion that work involves more than a trade agreement in terms of which labour is sold, is a basic theme. Constitutional perspectives on the concepts human dignity and freedom, with reference to freedom of the person as well as freedom of contract, are discussed. A direct relationship between work and employment, and the development of personality and human dignity, is indicated. The discussion leads to a conclusion that the relevant articles limit the rights to human dignity and freedom of the person, including freedom of contract, of the employees concerned. Human dignity is also discussed within the context of the entrenchment of socioeconomic rights. The relevant provisions are substantively assessed in terms of the reasonableness standard set by the Constitution. The conclusion is reached that the provisions cannot be accounted for on this basis. A third fundamental constitutional principle, equality, is considered. A substantive assessment in terms of the applicable test established in Harksen v Lane NO reveals that the provisions have the effect of reinforcing the disadvantaged position, owing to past discrimination, of black people and women with regard to job opportunities, which supports a conclusion that the relevant provisions constitute indirect unfair discrimination based on race, gender and socio-economic status. It furthermore appears that, although the provisions pass the rationality test that applies to provisions that regulate trade, occupation or profession, the fact that the regulating effect of the provisions violates fundamental constitutional rights, constitutes a violation of the right to freedom of trade, occupation or profession, protected by section 22 of the Constitution. The study also focuses on section 23(1) of the Constitution that determines that everyone has a right to fair labour practices, as well as on section 23(5) that confers a right to engage in collective bargaining. It appears that the provisions have a negative effect as far as work security is concerned, and therefore are unfair. The position with regard to section 23(5) is that the bargaining options of union members and employers are limited by the determination of minimum standards. The study concludes with an application of the section 36 test for the justification of limitations of constitutional rights. The adverse effects and the objects of the relevant provisions, taking into account the extent to which the provisions effectively promote the objects, are weighed up proportionally. Less restrictive means by which the objects can be promoted, are discussed. A conclusion is reached that the infringement of the constitutional rights of employees who are adversely affected by the relevant provisions, cannot be justified.