Exploring Section 186(2) of the Lra

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Abstract
Since the Labour Relations Act 66 of 1995 came into effect the South African labour market has undergone numerous changes. Such a consequence is the rise in the number of employees engaged in atypical or non-standard employment. This paper responds in the affirmative to Cheadle’s assertion that the Labour Relations Act 66 of 1995 provides inadequate protection to vulnerable workers such as non-standard employees. I explore the recent attempts to extend the protection of certain labour and social security laws to some categories of non-standard employees and I recognise their shortcomings. I suggest that senior and middle management employees no longer require statutory protection from unfair labour practices as such protection can be attained through contractual means. I propose that there is presently an urgent need to create a statutory arrangement which affords adequate protection to non-standard workers.

1. Introduction

The current South African labour legislation is one which affords too much protection to those who do not need it and far too little to those who require it most. In his paper Cheadle explores the consequences of the changes to the labour market since 1994 and recognises that the current conceptual structure has failed to accommodate these changes. The first source for reform is that there is “a huge protection hole – casual workers are not protected, informal workers are not protected, marginalised workers are not protected.” This results from the changes undergone by the labour market and the fact that the current remedies for unfair labour practices in the Labour Relations Act 66 of 1995 have “never been subject to careful scrutiny”. The most effective response to this problem is a re-evaluation of the current labour legislation. Cheadle’s main argument is that there is no longer a need to protect the working class against unfair labour practices as they are able to protect themselves through contractual means. I concur with Cheadle’s affirmations and in strengthening my argument I focus firstly on the brief history and development of the concept of an unfair labour practice. Through this exploration I evidence how the lack of proper scrutiny of unfair labour practices has resulted in an ill conceived provision. I argue that the current labour legislation does not extend protection to non-standard workers this based on the fact that protection rarely goes beyond the employment relationship. I further argue that if middle and senior employees can contractually negotiate “their hours of work and rights to any payment for overtime work” then surely this is possible for purposes of unfair labour practices.

2. Origins of unfair labour practices

The first observation made by Cheadle is that the ‘jurisprudence relating to the individual employment relation was fully codified in respect to dismissal but only roughly codified in respect of the residue.” Cheadle questions the lack of scrutiny applied to the definition of section 186(2) and argues that there is a need to revise and reconsider the practicality of unfair labour practices listed in section 186(2) of the LRA. The idea of unfair labour practice was first introduced into the South African labour law by the Industrial Conciliation Amendment Act. Under The Industrial Conciliation Amendment Act unfair labour practice was widely defined follows: “any labour practice which in the opinion of the industrial court is an unfair labour practice.”

This wide definition was a mechanism intended to protect white workers against “less favourable conditions of employment in the face of an extension to black workers of access to occupations previously reserved for whites.” Because of this wide definition the legislature was obliged to intervene and in 1980 the concept of an unfair labour practice was more comprehensively defined. The protection regarding the right to strike, refusal to negotiate in good faith, selective dismissal or...
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