Inequality in equality
| Jurisdiction | South Africa |
| Pages | 399-435 |
| Date | 20 August 2019 |
| Citation | (2016) 28 SA Merc JL 399 |
| Author | Judith Geldenhuys |
| Published date | 20 August 2019 |
INEQUALITY IN EQUALITY
JUDITH GELDENHUYS*
Senior Lecturer, Department of Mercantile Law, UNISA
I INTRODUCTION
The lack of efficient labour legislation has been cited by the International
Labour Organisation (‘ILO’) as being the principal cause of the negation
of rights enjoyed by atypical employees in South Africa.
1
The prejudice
suffered by this vulnerable group has long been recognised.
2
The African
National Congress specifically undertook to ensure that legislation
would be enacted to avoid exploitation of these workers.
3
Nevertheless,
before the recent interventions,
4
little had been done to ensure that fixed
term employees, part-time employees and employees who are employed
to perform temporary employment services are treated equitably in the
workplace.
5
* LLB LLM (UP) LLD (UNISA). With gratitude to the reviewers for their valuable inputs
and valid criticism.
1
International Labour Organization (ILO), ‘NEDLAC Republic of South Africa Decent
Work Programme 2010 to 2014’ (2010) 10, available at http://www.ilo.org/wcmsp5/groups/
public/@dgreports/@integration/documents/genericdocument/wcm_145432.pdf, accessed
on 2 October 2015. In this contribution, the term ‘atypical employee’ is used to denote
temporary employees, employees employed on fixed term contracts and workers employed by
labour brokers. Even though independent contractors also fall within the classification
of ‘non-standard’ work, they would logically also fit comfortably within the definition of
‘atypical employees’. However, as the main South African labour legislation expressly
excludes independent contractors from its operation, save for the exceptional instances where
independent contractors are mentioned in passing, a discussion of the remedies available
to independent contractors falls beyond the scope of the discussion.
2
See the statement made by the Department of Labour in the ‘Green Paper on Labour:
Minimum Standards Directorate Policy Proposals for a New Employment Standard Statute’
(13 February 1996), available at http://www.info.gov.za/greenpapers/1996/labour.htm#
Executive. Although there are exceptions to the rule, such as high-income employees
appointed on a fixed term basis, atypical employees are often more exposed to abuse. The
legislative amendments discussed in this contribution were enacted with the particular goal of
addressing these inequities.
3
African National Congress, ‘ANC 2009 Election Manifesto’, available at http://
www.anc.org.za/docs/manifesto/2009/manifesto.pdf, accessed on 2 October 2015.
4
The Employment Equity Amendment Act 47 of 2013 and the Employment Equity
Regulations, 2014 came into effect on 1 August 2014 (GN R16 in GG 37238 of 16 January
2014). The Basic Conditions of Employment Amendment Act 20 of 2013 and its regulations
that were published on 29 August 2014 came into operation on 1 September 2014 (GN 987 in
GG 37139 of 1 September 2014). The Labour Relations Amendment Bill, 2012, was assented
to by the President on 18 August 2014 (See the Proclamation of the Labour Relations
Amendment Act 6 of 2014 in GG 37921) and it came into operation on 1 January 2015 (See the
Proclamation in GG 38317 of 19 December 2014).
5
Sections 198A to 198D were inserted into the Labour Relations Act 66 of 1995 (‘the LRA’)
for this specific reason. See the motivations provided for the inclusion of the various
399
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The Labour Relations Amendment Act 6 of 2014 (‘LRA Amendment
Act’) introduced regulatory measures in respect of atypical employees.
6
Several months have passed since the LRA Amendment Act has become
operational.
7
Early in 2015, it was predicted that there will be an influx of
review applications to the Labour Court resulting from the legal reform.
It was also predicted that the new introductions in the reform would lead
to many judicial reviews, because there are not many people who possess
the knowledge and experience to deal with them.
8
Nevertheless, the
Commission for Conciliation Mediation and Arbitration (‘CCMA’) and
bargaining councils have not been inundated with unfair dismissal
and equal treatment claims involving atypical employees as expected.
9
Consequently, there has also been little opportunity to see whether
attorneys, labour consultants and even CCMA commissioners and
judges are properly equipped to handle these matters.
After briefly highlighting the underlying constitutional and interna-
tional law obligations, some obstacles to access to justice brought about
by the provisions in the new amendments that apply to atypical
employees are identified.
10
Where possible, case law in point is consid-
ered. Why atypical employees may be reluctant to even attempt to
enforce their new rights becomes clear when the remnant and newly
introduced anomalies in the quest for the achievement of equality
between permanent employees and atypical employees are uncovered.
mechanisms in the Memorandum of the Objects of the Labour Relations Amendment Bill
2012, 21–27.
6
The new heading for Chapter IX of the LRA is ‘Regulation of non-standard employment
and general provisions’. The provisions that follow these headings (s 198) were introduced to
specifically apply to atypical employees. Even though the equal pay provisions in s 6 of the
Employment Equity Act 55 of 1998 (‘the EEA’), the regulations that have been passed under
them, and the codes used to properly interpret and apply them also apply to standard
employees, and not only to atypical employees, they remain relevant in respect of certain
atypical employees who earn above the threshold amount, as well. Consequently, a brief
reference to equal pay as provided for in the EEA is apt.
7
The LRA Amendment Act became effectiveon 1 January 2015. Several provisions that will
be considered in this contribution, particularly in respect of atypical employees who were
already employed before the LRA Amendment Act was enacted, only became effective on 1
April 2015. In this regard see s 198A(4B)(b), 198A(9), 198B(8)(b) and 198C(4) of the LRA
Amendment Act.
8
See the statement made by Levy in Karl, ‘South African labour: CCMA braces for extra
work from law reforms’, available at http://www.bdlive.co.za/national/labour/2015/01/27/
ccma-braces-for-extra-work-from-law-reforms, accessed on 18 August 2015.
9
According to the CCMA’s Annual Report there was an increase in workload of only 1%,
which the Commission attributed to the opening of two new regional offices. See the
2014/2015 Annual Report, available at http://www.ccma.org.za/UploadedMedia/
CCMA%20ANNUAL%20REPORT%202015.pdf, accessed on 5 October 2015.
10
Although cursory suggestions are put forward in places, further research is planned to
find solutions to the problems that are identified.
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II EQUAL TREATMENT IS CONSTITUTIONALLY
MANDATED
The Constitution of the Republic of South Africa, 1996 (‘the Constitu-
tion’) is moulded to the International Covenant on Civil and Political
Rights, which expressly states that ‘[a]ll persons are equal before the law
and are entitled without any discrimination to the equal protection of
the law’.
11
Various pieces of legislation have been enacted, among other
things, to ensure that workers are treated as equals, and equitably in the
workplace.
12
South Africa is a signatory to ILO Convention No 100 of 1951 on
equal wages for men and women who deliver work of equal value. This
Convention requires that all member states that ratified it, must
establish measures to ensure equal pay for equal work performed.
13
South Africa has also ratified ILO Convention No 111 of 1958 that
prohibits workplace discrimination.
The interpretation to be afforded to the labour legislation should
accord with South Africa’s international law obligations.
14
In addition,
national legislation should be construed in a way that underscores the
constitutional values, and that best gives effect to the purpose of
the particular piece of legislation.
15
It is clear that in terms of interna-
tional obligations and the national legislation that was enacted to give
effect to the constitutional right to fair labour practices,
16
the labour
forums have an obligation to ensure that the law is interpreted equitably
and applied equally to all who are entitled to its protection.
A significant purpose for the introduction of the amendments is to
address the inequalities that exist between atypical workers and those
who are employed permanently in the workplace.
17
Although the LRA
Amendment Act has made huge strides in formalising legal principles to
regulate atypical employment relationships, the Constitution requires
not only that such legislation must exist, but also that the legislation
enacted in order to resolve labour disputes must be effective. If a piece of
11
Article 26 of The Covenant on Civil and Political Rights, available at http://
www.hrweb.org/legal/cpr.html, accessed on 5 October 2015. South Africa ratified this
instrument on 10 December 1998.
12
Sections 9 and 23 of the Constitution; the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (‘PEPUDA’) and the Employment Equity Act 55 of 1998
(‘EEA’).
13
Article 2(1).
14
Section 39 of the Constitution. See also s 3(d) of the EEA and Mangena & others v Fila
South Africa (Pty) Ltd & others (2010) 31 ILJ 662 (LC) para 5.
15
Section 3 of the LRA.
16
Section 23 of the Constitution.
17
Memorandum of the Objects of the Labour Relations Bill 2012, 1.
INEQUALITY IN EQUALITY 401
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