Human Rights and the South African Constitution

Why protect worker’s rights?

The exploitation of workers was a feature of life in South Africa for decades. Apartheid thrived on cheap labour: workers had to contend with the migrant labour system, passes and influx control, job reservation, poverty wages and oppressive laws.

Nevertheless, trade unions were an important source of resistance. In the 1980s Cosatu organised mass strikes against new labour laws and workers emerged as a strong political force.

South Africa's Constitution now goes far in guaranteeing workers' rights, such as the right to strike.

Section 23 - Labour relations

The rights afforded to citizens generally apply to workers too - such as the rights to equality, privacy, dignity and life. But some sections in the Bill of Rights are especially useful to workers.

Section 23, the most relevant one here, is entitled "Labour relations" and reads:

Everyone has the right to fair labour practices.

Every worker has the right to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike.

Every employer has the right to form and join an employers' organisation; and to participate in the activities and programmes of an employers' organisation.

Every trade union and every employers' organisation has the right to determine its own administration, programmes and activities; to organise; and to form and join a federation.

Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

This section guarantees workers the right to fair labour practices, to form and join trade unions, and to participate in union activities and strikes.

Likewise, employers have the right to form and join employers' organisations and to take part in their activities. These groups have the right to organise, form federations and engage in collective bargaining.

The right to strike is written into the Constitution, but the right of employers to lock out their workers is not expressly included. However, the Labour Relations Act grants employers this right in certain situations.

Other rights

Some other sections in the Bill of Rights that may be relevant to workers are:

section 13 - slavery, servitude and forced labour (no one may be subjected to slavery, servitude or forced labour);

section 17 - assembly, demonstration, picket and petition (everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions); and

section 22 - freedom of trade, occupation and profession (every citizen has the right to choose their trade, occupation or profession freely).

Key Constitutional judgments

SA National Defence Union v Minister of Defence (1999) ( read the judgment )

The High Court had declared unconstitutional a provision of the Defence Act of 1957 that prohibited members of the Defence Force from becoming members of a trade union or engaging in any "protest action".

The Constitutional Court decided that prohibiting participation in acts of public protest violated the right to freedom of expression of defence force members - an unjustifiable limitation and one that was consequently unconstitutional.

On the question of trade union membership, the applicant had argued that prohibiting membership infringed the right of "every worker" "to form and join a trade union".

The Court interpreted the term "every worker" to include members of the armed forces, even though their relationship with the defence force was unusual. Here a generous interpretation of the right was appropriate.

Permitting members to join a trade union would not necessarily undermine strict discipline. But in appropriate circumstances, the right may need to be limited.

Numsa and Others v Bader Bop (Pty) Ltd and Another (2002) ( read the judgment )

Members of Numsa, a minority union in Bader Bop's factory, had sought to strike to force Bader to grant it rights under section 14 of the Labour Relations Act. This section gave a union representing more than half the workers in a workplace the right to have their shop stewards recognised by their employers.

As Numsa represented only 26 percent of the workforce, the question was whether its members were entitled to strike.

The Labour Court held that they were and refused to grant Bader an interdict prohibiting the strike. But the Labour Appeal Court granted the interdict.

In their appeal to the Constitutional Court, Numsa and the employees relied on section 23 of the Constitution - particularly, the right to strike protected by section 23(2)(c) - and argued that the provisions of the Act, interpreted in the light of the Constitution, afforded them the right to strike in the circumstances.

If not, they argued, the provisions were unconstitutional.

Two issues arose: first, in what circumstances should the Constitutional Court entertain an appeal from the Labour Appeal Court? Second, if an appeal were allowed, had the Labour Appeal Court's interpretation of the relevant provisions been correct?

The Constitutional Court granted the leave to appeal and upheld the appeal itself. The Court tackled various sections in the Act and set aside the Labour Appeal Court's order.

New legislation



Since 1994, Parliament has passed a lot of new legislation that deals with labour issues.

Basic Conditions of Employment Act of 1997

This Act, which came into effect on 1 December 1998, applies to all employees and employers except the South African National Defence Force, various intelligence bodies and unpaid volunteers working for charities.

It limits the hours that may be worked in a week and regulates meal breaks and rest periods. But these conditions do not apply to all categories of workers, for example to senior managers.

The Act also sets entitlement to annual leave, sick leave, maternity leave and family-responsibility leave. It explains what workers can expect if their employment is terminated.

This legislation prohibits forced labour and the employment of children under 15, and gives the Minister of Labour the power to place restrictions on the employment of children over 15.

Labour Relations Act of 1995

The Labour Relations Act, which came into effect on 11 November 1996, intends to bring labour law into conformity with the Constitution and with international law. It recognises and regulates the rights of workers to organise and join trade unions, and the right to strike. It guarantees trade union representatives access to the workplace and regulates the right of employers to lock workers out in certain situations.

It also facilitates collective bargaining and makes provision for bargaining councils.

The Act also established a number of important bodies, such as the Commission for Conciliation, Mediation and Arbitration - which creates simple procedures for the arbitration and resolution of labour conflict - and the Labour Court and Labour Appeals Court, which adjudicate disputes.

This legislation prohibits unfair dismissal and defines a dismissal as automatically unfair if it is due to the exercise of labour rights (including participation in or support for a legal strike or protest), pregnancy, or unfair discrimination on the ground of race, gender and other grounds.

Employment Equity Act of 1998

This legislation, which came into effect on 9 August 1999, prohibits unfair discrimination on grounds of race, gender, sex, pregnancy and marital status, among other things. Affirmative action, however, is allowed.

The Act regulates medical testing, HIV testing and psychological testing.

The Act requires designated employers (for example, those with more than 50 employees) to conduct a detailed analysis of employment policies, practices, procedures and the working environment to identify barriers that adversely affect the designated groups: black people, women and people with disabilities.

Such employers need to prepare employment equity plans.

The Skills Development Act of 1998

The Act, which came into effect on 10 September 1999, aims to develop and improve the skills of the South African workforce. It provides a framework for the development of skills of people at work and establishes a number of bodies to co-ordinate and oversee the training and development of South Africa's workforce.

To read further click the link below:

http://www.constitutionalcourt.org.za/site/

yourrights/knowyourrights-workersrights.htm

Last updated : 08-May-2012

This article was produced for South African History Online on 30-Mar-2011