The purpose of the Basic Conditions of Employment Act is to advance economic
development and social justice by fulfilling the primary objects of the Act which are
to give effect to and regulate the right to fair labour practices conferred by section
23(1) of the Constitution, and to comply with obligations incurred by the Republic as
a member state of the International Labour Organisation. Section 9(1) read with
section 10(1) of the Act has the effect that employees covered by the sections are not
allowed to work for the same employer for more than 55 hours per week. This does
not prevent employees from working longer hours in total in terms of employment
agreements with different employers, an option that entails certain disadvantages.
The study investigates the constitutionality of the limitation of the opportunity to
work for longer hours for the same employer. Reference to comparative law focuses
on the legal position in America, Germany and Canada. Throughout the study the
notion that work involves more than a trade agreement in terms of which labour is
sold, is a basic theme.
Constitutional perspectives on the concepts human dignity and freedom, with
reference to freedom of the person as well as freedom of contract, are discussed. A
direct relationship between work and employment, and the development of
personality and human dignity, is indicated. The discussion leads to a conclusion that
the relevant articles limit the rights to human dignity and freedom of the person,
including freedom of contract, of the employees concerned.
Human dignity is also discussed within the context of the entrenchment of socioeconomic
rights. The relevant provisions are substantively assessed in terms of the
reasonableness standard set by the Constitution. The conclusion is reached that the
provisions cannot be accounted for on this basis. A third fundamental constitutional principle, equality, is considered. A substantive
assessment in terms of the applicable test established in Harksen v Lane NO reveals
that the provisions have the effect of reinforcing the disadvantaged position, owing to
past discrimination, of black people and women with regard to job opportunities,
which supports a conclusion that the relevant provisions constitute indirect unfair
discrimination based on race, gender and socio-economic status.
It furthermore appears that, although the provisions pass the rationality test that
applies to provisions that regulate trade, occupation or profession, the fact that the
regulating effect of the provisions violates fundamental constitutional rights,
constitutes a violation of the right to freedom of trade, occupation or profession,
protected by section 22 of the Constitution.
The study also focuses on section 23(1) of the Constitution that determines that
everyone has a right to fair labour practices, as well as on section 23(5) that confers a
right to engage in collective bargaining. It appears that the provisions have a negative
effect as far as work security is concerned, and therefore are unfair. The position with
regard to section 23(5) is that the bargaining options of union members and employers
are limited by the determination of minimum standards.
The study concludes with an application of the section 36 test for the justification of
limitations of constitutional rights. The adverse effects and the objects of the relevant
provisions, taking into account the extent to which the provisions effectively promote
the objects, are weighed up proportionally. Less restrictive means by which the
objects can be promoted, are discussed. A conclusion is reached that the infringement
of the constitutional rights of employees who are adversely affected by the relevant
provisions, cannot be justified.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-09162010-160218 |
| Date | 16 September 2010 |
| Creators | Marais, Maria Elizabeth |
| Contributors | Prof JL Pretorius |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-09162010-160218/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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