In South Africa ordinary common law contractual principles originally formed the primary basis of employment regulation in the private sector. As such, the employment contract rather than legislation tended to be pivotal in determining the content of employment relationships. The result was an employment dispensation that tended to suit employers as the stronger bargaining party in the pre-employment negotiation process. This position was exacerbated by the institutionalised system of apartheid that stripped a significant number of people of elementary human rights.

HISTORICAL CHANGES: In 1981 the Wiehahn Commission recommended that all employees in the private sector be brought under a Labour Relations Act. This was followed by the Basic Conditions of Employment Act of 1983, which laid down minimum conditions for private sector employees. This legislation was revolutionised through institutions such as the Industrial Court, which sought, through an administrative law-based approach, to develop a potent unfair labour practice jurisdiction providing expression to employees’ rights. Despite being an innovative change, this nebulous concept of unfair labour practices resulted in some unruly consequences, particularly in collective bargaining. This can be seen from the scale of strikes experienced in South Africa during the 1980s.

In 1996 this overlapping jurisprudence and antiquated labour legislation was comprehensively replaced by the Labour Relations Act of 1995. This act has sought to introduce a participatory approach to collective bargaining distinct from the adversarially based arrangement of labour relations of the 1980s. It has also attempted to codify many of the crucial rights that had previously evolved through judicial intervention, such as the right to strike and collectively organise. While seeking to give legislative effect to these collective labour interests, the act has also imposed a structured basis upon which the exercise of these rights must take place. By the same token, it has provided employers with certainty regarding the procedural processes that they need to undertake in restructuring, transferring businesses as going concerns, disciplining and dismissing employees.

The act clearly favours but does not compel collective bargaining. Employers can refuse requests by unions to engage in collective bargaining, but they are compelled to grant organisational the rights to unions with significant representation. Moreover, armed with the right to strike, unions can effectively compel employers to agree to formal collective bargaining.

Proximate to the revamp of the Labour Relations Act, a new Basic Conditions of Employment Act was introduced in 1998. This statute seeks to achieve consistency with the Labour Relations Act and to ensure protection of employees in conformity with the constitution. It also gives effect to South Africa’s assumed obligations as a member of the International Labour Organisation. The act contains innovations in its approach to the regulation of employment conditions, such as hours of work and overtime. It also provides the framework under which the enforcement of minimum conditions of employment can be accomplished.

NEW DEVELOPMENTS: While the current labour legislation has resulted in improved labour regulation, some of these innovations have come at the expense of labour market flexibility. Certain arrangements such as labour brokering and fixed-term contract employment continue to be perceived by organised labour as being feudalistic and exploitative. To address these concerns, changes have been proposed to existing legislation. The key proposals are as follows: unions should not be entitled to strike unless the majority of unionised employees have voted in favour of striking; labour brokers engaged for more than six months on a specific client site should be presumed to be employed by that client; fixed-term contract employment extending beyond six months should be prohibited unless there is a cogent reason for this; highly paid employees should automatically be considered to have been fairly dismissed if they are paid three months severance pay.