The right to fair labour practices

Section 23(1) of the Constitution of 1996 is deceptively simple: it provides that everyone has a right to fair labour practices. This provision is not hard to understand, but, on closer analysis, what it does not say becomes almost as important as what it does say. It does not state, for example, that only employees are entitled to fair labour practices. Nor does it state that the “fair labour practice” is refers to are those listed in the Labour Relations Act of 1995 (the LRA). Both the LRA and the Constitution are now about ten years old (the LRA came into effect in November 1996), and the question is what can we say, ten years on, about this right?

There is no complete and full list of fair labour practices in our law. This means that it is not possible for employers and employees to check up on a list as to whether what they have done (or intend doing) is a fair labour practice or not. While the Labour Court sees the list of unfair labour practices contained in the LRA as a closed list, it can hardly be argued that any conceivable list would exhaustively enumerate all fair labour practices. In thinking about the concept of fair labour practices, it is often easier to work the other way around — to think about the unfair labour practices we know, and from there to extrapolate some sense of what issues are at stake.

Fair labour practices and labour legislation

One can find references to the right to fair labour practices in many pieces of labour legislation. Section 2(a) of the Basic Conditions of Employment Act of 1997 (BCEA) provides that the purpose of the BCEA includes giving effect to and regulating the right to fair labour practices conferred by section 23(1) of the Constitution. The BCEA does so by establishing and enforcing basic conditions of employment and by regulating the variation of basic conditions of employment. In other words, the entire BCEA must be read as giving effect to the right to fair labour practices.

Section 1(a) of the LRA contains a similar provision — the LRA seeks to give effect to and regulate the fundamental rights conferred by the Constitution. In this section the LRA refers to section 27 of the Constitution. It is important to remember, however, that the LRA was drafted with reference to the Interim Constitution of 1993 (the fundamental labour rights were contained in section 27 of the Interim Constitution). It is worth noting, however, that neither the Employment Equity Act (EEA) of 1998 nor the Skills Development Act of 1998 contains references to the right to fair labour practices. Section 3 of the EEA does provide, however, that the EEA must be interpreted in compliance with the Constitution (the Skills Development Act does not contain a similar provision).

Employee protection

Immediately, when we think of unfair labour practices, we seem to think that these relate only to unfair conduct committed by the employer against the employee. But, as pointed out above, section 23(1) is wider than that: it says that “everyone” is entitled to fair labour practices. Presumably, everyone would include the employer and, in principle at least, an employer could argue that an employee has committed an unfair labour practice.

This is what the employer, a trade union, tried to do in NEWU v CCMA & others (2003) 12 LC 6.10.2. The union’s deputy president resigned without giving the necessary notice and went to work for another union instead. The union approached the CCMA on the basis that the employee had committed an unfair labour practice, but the CCMA rejected the application, stating that it did not have jurisdiction. This is a particularly interesting decision, not only because of these facts; the Labour Court also considers, in some detail, the right to fair labour practices in section 23(1) of the Constitution.

The concept of a fair labour practice, the Court held, recognises that even what is lawful may still be unfair. Even though a contract of employment may be lawfully terminated, for instance, that termination may still be unfair (as in the case of unfair dismissal). The concept of a fair labour practice, the Court continued, relates to the concern that labour practices should not only be lawful but also fair.

The contract of employment can lead to unfairness, the Court continued — in some cases the rights and obligations established by the contract can be unfair. A breach of the employment contract by the employee may well constitute an unfair labour practice — seen from the perspective of section 23(1) of the Constitution. But the definition of an unfair labour practice in the LRA (at that stage it was in Schedule 7 of the LRA) does not encompass an unfair labour practice committed by the employee. In this context, the Court held, the LRA does not give full effect to section 23 of the Constitution. But, the Court added, the LRA is not intended to regulate exhaustively the entire concept of a fair labour practice as contemplated in section 23(1) — the right to fair labour practices is far too wide to be regulated in a single piece of legislation.

Contracts and fair labour practices

In the past five years or so, the impact of the right to fair labour practices on the employment contract (and the rights and duties that flow from this contract) has been significant. The first decision of the Supreme Court of Appeal to consider this impact was Fedlife Assurance Ltd v Wolfaardt (2001) 10 SCA 1.1.1. One of the judges stated that, in the context of the right to unfair labour practices, the most important manifestation of this fundamental right is the right not to be unfairly dismissed. One of the core elements of the right to fair labour practices is, in other words, the right not to be unfairly dismissed — an issue now regulated by the LRA.

The Supreme Court of Appeal took another step in Denel (Pty) Limited v Vorster (2004) 13 SCA 7.9.1 .— the issue was whether the employer’s failure to follow an agreed-upon disciplinary code constituted a breach of contract. The Court did not agree with the employer’s argument that the employment relationship is governed only by a reciprocal duty on both parties to act fairly to one another. Contractual terms and conditions, the Court held, still applied and remained in force — if the right to fair labour practices did introduce a duty to act fairly, it does not deprive contractual terms of their effect. Implied duties (such as a duty to act fairly) could soften the effect of unfair terms in the contract of employment or could even provide supplemental terms if necessary. Still, the contract remained intact, in force and enforceable.

These are small but important steps taken by the Supreme Court of Appeal, and, arguably, it is in the context of the interaction between the contract of employment and the right to fair labour practices that the most significant developments are to be expected in the future.

The fundamental right and the LRA’s unfair labour practices

Section 186(2) of the LRA lists a number of unfair labour practices. The first question in this context is whether this is a complete and exhaustive list of unfair labour practices, or whether there are others as well. Our courts take the view that the LRA’s list of unfair labour practices is a full list and anything that does not fall within the scope of that list of situations does not constitute an unfair labour practices for the purposes of obtaining relief in terms of the LRA. In Nawa & another v Department of Trade & Industry (1998) 7 LC 1.1.7 . employees sought an order from the Labour Court restraining the Department from engaging on a decentralisation programme and protecting them against alleged victimisation. The employees argued that this constituted an unfair labour practice (at this stage the unfair labour practice was still found in Schedule 7 of the LRA).

On the facts, the Labour Court came to the conclusion that the Department (the employer) was planning to change the way it conducted its operations, but that it would leave the terms and conditions of employment unchanged. It fell within its managerial prerogative to change an employee’s reporting functions and the chain of command. This did not fall within the ambit of an unfair labour practice in terms of the LRA and the LRA effectively limited unfair labour practices to those listed. Although the employees may have been unhappy about the way in which the Department had proceeded with its organisational change, they were effectively denied a remedy in terms of the LRA.

In another ten years’ time?

What will we be saying about the right to fair labour practices in ten years time from now? There can be no doubt that the interpretation of this fundamental right will continue as our Courts are faced with new situations and new problems. Will the right to fair labour practices be extended to cover employers as well? Given that the employee is usually seen as the weaker party in the employment relationship, this seems admittedly unlikely.

The most likely scenario is that our law will continue to develop on a case-by-case basis, and that we will only see a gradual and slow exploration of the limits of the right to fair labour practices. Ten years ago, when the LRA and the Constitution was drafted, the future was unclear, but even then everyone knew that the Courts were going to have to interpret and apply the law and, in doing so, make new law or determine the way existing law applies.

The right to fair labour practices in section 23(1) of the Constitution is extremely wide, and even though it has taken us ten years to get to here, we’re clearly still only at the beginning of trying to make sense of just what this right means (and, more importantly, what this right does not mean). For many years to come, our Courts will be grappling with the question of what the right to fair labour practices means in specific cases. An even if we cannot predict these future developments in any meaningful way, they will no doubt make for interesting reading and the decisions of the Courts will have a real and lasting impact of our understanding of this pivotally important fundamental right.