A critical analysis of the right to fair labour practices
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Section 23 of the Constitution is an embodiment of fundamental labour rights. Section 23(1) reads as follows: “(1) Everyone has the right to fair labour practices.” The fair labour practice concept is a rather recent development in South African labour law and is it therefore still required to attempt to provide meaning to this concept. It further becomes essential to provide meaning to the concept if it is acknowledged that when this concept was introduced in 1979, the unfairness of the concept was regulated by labour legislation and the Industrial Court’s equity jurisprudence; currently, not only the unfairness of this concept is legislatively regulated but is the fairness of this concept embedded as a constitutional guarantee in the Constitution of South Africa. It has therefore become necessary to determine the exact scope of this constitutional right in order to determine the relation between the legislative concept and the constitutional right and to investigate whether there is any room for an extended view of this right and to which limitations (if any) it should be subjected to. Prior to analysing the constitutional right to fair labour practices, a comprehensive investigation was led into the historical position preceding the introduction of this right. It was found that the history of fair labour practices played an immensely important role in the analysis of this constitutional right. The events, motivations and circumstances which consequently led to the introduction of this right, without any doubt, provided a useful guideline as to the interpretation of the right. The disregard for the human element present in the employment relationship, not only while slavery was in existence but also in the continued policies and mindsets of policy-makers thereafter, could be described as the first element contributing to the unfairness of labour practices. It was also found that, although the common law still being relevant, the common law contract of employment should no longer serve as the yardstick for establishing the existence of an employment relationship (for purposes of provision of protection and ensuring fair labour practices). Regards must rather be having to all the circumstances surrounding the relationship between a person rendering services and the person paying for the services in order to establish the true nature of the relationship. In the end, protection for either of these parties is not solely dependent on a contract of employment anymore, but rather on the fact whether an employment relationship was proven or not. Before the enactment of the Constitution, protection in an employment context was literally limited to legislation providing protection. It is suggested that legislation should be interpreted according to the Constitution and common law should be developed in terms of the Constitution. Based on this premise everyone can currently enjoy the right to fair labour practices based on section 23(1), even if excluded by legislation or common law and even in the absence of regulation by legislation or common law. When analysing the word everyone, it is submitted that our law has moved beyond the realms of contract to broad constitutionality in determining who is an employee. A claim to be recognised as an employee in terms of the 1995-LRA is not contractual in nature but rather a claim to enforce constitutional rights. Although a contract of employment (or being regarded as an employee) is required to claim labour rights in terms of the 1995- LRA and other labour laws, section 23(1) of the Constitution provides broader protection than labour laws where a person is in a work relationship akin to an employment relationship. Everyone should be determined with reference to “being involved in an employment relationship”. The following persons will therefore in general enjoy protection in terms of this right: natural persons, juristic persons, employers, workers (including employees employed in a contract of employment and employees in utero), independent – and dependent contractors, citizens, aliens, children, job applicants, illegal workers (to a certain extent), temporary workers, casual workers, acting workers, probationary workers and managerial employees. It is also suggested that the protection afforded by section 23(1) is not limited to an individual relationship but extends to collective relationships as well. Fairness is a concept that has drawn attention not only since the unfairness of labour practices in South Africa has been realised but since the beginning of time. In attempting to comprehend the meaning of this concept attention should therefore be divided to the unfairness complained of, the views of ancient philosophers, the recommendations of the Wiehahn Commission, the previous Industrial Court’s perception and decisions on fairness, contemporary views and future predicaments (last mentioned form an important part of defining this concept due to the fact that much of the meaning of the concept of fairness is contained in its idealistic nature). Determining the fairness of a labour practice should not be done according to a value judgment made by a court as this would lead to much uncertainty. Therefore a statutory definition of an unfair labour practice must be interpreted and applied in accordance with the spirit, purport and objects of the fundamental rights guaranteed by the Constitution. It is not certain what type of value judgement will ensure fairness and it is also uncertain how it should be done. Furthermore, the content and standard of such a value judgment is uncertain. Brassey’s determination of fairness ensures much more certainty: A labour practice will only be regarded as fair if it bears both an economic rationale and also proves to be legitimate. It is suggested that fairness is determined by balancing the respective interests of parties in any given situation. If the other factors, i.e. the concept of everyone and the meaning of fairness, influencing the application of section 23(1), the history of unfair labour practice regulation and the values of the Constitution are taken into consideration, it seems justified to conclude on the concept of labour practices in the following fashion: the Constitution envisaged to prevent and prohibit the repetition of a system that was representative of unfairness in the employment relationship. Both individual – and collective employment relations have bearing on the perceived fairness of the employment relationship. All practices concerned with the employment relationship (before, during and after such a relationship) should therefore be subject to the scrutiny of the constitutional right to fair labour practices.