The Right to Fair Labour Practices in South Africa

Introduction 

The right to fair labour practices is an important human right in South Africa. It makes sure  that both employees and employers are treated with dignity, respect, and fairness at work.  This right is found in section 23 of the Constitution of the Republic of South Africa, 1996 and  forms the foundation of all labour laws in the country. It aims to promote fairness and social  justice in the workplace by balancing the power between employers and employees, so that  working conditions are fair and reasonable.1 

Constitutional and Legislative Framework 

Section 23(1) of the Constitution says, “Everyone has the right to fair labour practices2this means the law protects both employees and employers, making sure that everyone is treated  fairly at work. The Constitution also gives workers the right to join trade unions, go on strike,  and take part in collective bargaining. Employers, on the other hand, can join employers’  organisations to protect their interests.3 The Labour Relations Act 66 of 1995 (LRA) makes  the constitutional rights real by encouraging economic growth, fairness at work, peace  between workers and employers, and democracy in the workplace.4The Basic Conditions of  Employment Act 75 of 1997 (BCEA) sets basic rules for work, like working hours, leave, and  pay.5 The Employment Equity Act 55 of 1998 (EEA) aims to stop unfair discrimination at  work and create equal chances for everyone.6 Together, these laws are the main rules that  guide labour relations in South Africa. 

Understanding “Fair Labour Practices”  

The Constitution does not fully explain what “fair labour practices” means. Courts have said  it includes the right to be treated fairly, have job security, and be respected at work. In  National Education Health and Allied Workers Union (NEHAWU) v University of Cape  Town, the Constitutional Court said that this right applies to both employers and employees and should promote fairness, equality, and social justice.7The LRA says an “unfair labour  practice” is any unfair action or failure to act by an employer or employee about things like  promotion, demotion, training, benefits, or suspension.8 This means fairness is not just about  firing someone it applies to all parts of the work relationship. Courts and tribunals look at  whether the employer acted fairly, both in the way they made decisions and in the results of  those decisions. 

Protection against Unfair Labour Practices 

Unfair labour practices can happen in many ways, such as unfair dismissal, unfair discipline,  or discrimination. Section 185 of the LRA says every employee has the right not to be  unfairly dismissed or treated unfairly at work.9When deciding if a dismissal is fair, two things  are checked: whether there was, a fair reason for firing the employee (substantive fairness)  and whether the process used to dismiss them was fair (procedural fairness).10In the case of  Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, the court said that the  fairness of a dismissal must consider all the facts and whether the employer’s decision was  reasonable.11 Similarly, in County Fair Foods (Pty) Ltd v CCMA, the Labour Appeal Court  said fairness means balancing the employer’s need to manage the business with the  employee’s right to keep their job.12 

Role of the CCMA and Labour Courts (Simple English) 

The Commission for Conciliation, Mediation and Arbitration (CCMA) is important for  protecting fair labour practices. It gives employees and employers a simple, affordable, and  quick way to solve disputes through conciliation and arbitration.13 Many issues like unfair  dismissal, unfair labour practices, or discrimination are first handled by the CCMA before  going to the Labour Court. The Labour Court and Labour Appeal Court, set up under the  LRA, are special courts for handling work-related disputes and creating labour law decisions. These courts 14make sure fairness and justice are applied in the workplace. Having these systems helps ensure that every worker gets fair and just treatment, as promised by the  Constitution. 

Challenges and Contemporary Issues (Simple English) 

Even though South Africa has strong labour laws, there are still problems in making sure all  workers are treated fairly. One major issue is the increase in casual work and outsourced jobs,  which often means unstable employment and less protection for workers.15 The rise of the gig  economy and other non-traditional jobs also makes it unclear who counts as an “employee”  and what legal protections they have.16Workplace discrimination and inequality are still big  problems. The EEA bans unfair discrimination based on race, gender, disability, and age, but  the law is not always enforced, especially in private companies.17 The COVID-19 pandemic  showed more weaknesses, as many workers lost jobs, had pay cuts, or faced health risks  without enough protection.18 

Another challenge is balancing workers’ rights with employers’ business needs. Courts often  have to ensure fairness while allowing employers to manage their businesses. As the Constitutional Court said in Sidumo, fairness means finding a balance between the interests of  both workers and employers — neither side can have all the power.19 

Conclusion 

The right to fair labour practices is a key part of South Africa’s democracy. It supports  dignity, equality, and freedom at work and helps fix the unfairness of the past. The  Constitution, LRA, BCEA, and EEA provide strong laws to protect workers and promote  fairness in the workplace. However, we must keep working to make sure this right really  happens. New challenges like automation, digital work, and economic inequality mean that  fair labour practices need to be applied in modern ways. Courts, lawmakers, and society must keep promoting fairness, equality, and respect at work so that all South Africans can truly  enjoy the right to fair labour practices. 

Reference(S):

1 Constitution of the Republic of South Africa, 1996 s 23(1). 

2ibid. 

3 Constitution of the Republic of South Africa, 1996 s 23(2). 

4Labour Relations Act 66 of 1995 s 1 

5 Basic Conditions of Employment Act 75 of 1997 s 6–10. 

6 Employment Equity Act 55 of 1998 s 2.

7National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town* (2003) 24 ILJ 95  (CC) para 40. 

8Labour Relations Act 66 of 1995 s 186(2). 

9Labour Relations Act 66 of 1995 s 185. 

10Le Roux PAK and Van Niekerk A, *The South African Law of Unfair Dismissal* (3rd edn, LexisNexis 2020) 23.

11 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others* (2007)

12 BLLR 1097 (CC) para 78. County Fair Foods (Pty) Ltd v CCMA* (1999) 20 ILJ 1701 (LAC) para 25.12 

13 Labour Relations Act 66 of 1995 s 115. 

14 ibid s 151–167.

15 Benjamin P, ‘Labour Law Beyond Employment’ (2019) 40 ILJ 1381, 1383. 

16 ibid 1390. 

17 Employment Equity Act 55 of 1998 s 6(1). 

18 Grogan J, *Workplace Law* (14th edn, Juta 2021) 45. 

19 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others* (2007) 12 BLLR 1097 (CC) para 78.