Tshwane University of Technology

Faculty of Humanities

Department of Education Studies

Educational Management (EDU401T & EDU402T)

Presenter:Dr Muavia Gallie (PhD)

Session 3Week: 21 Feb - 22 Feb 2011

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Content1. Introduction2. Nature of labour relations;3. Sources of labour relations;4. Legislation;

- Constitution;- Labour Relations Act (LRA);- Employment of Educators Act (EEA);- Other statutes;

5. Common Law6. Case law Continue next week - 10.3 (p.256)

Nature of Labour Relations• Ever increasing labour relations cases between SGBs,

educator unions and education departments;• Labour relations phases:

- era of exploitation (1870 - 1924;- era of colonialism and paternalism (1925 - 1980);- era of adversarialism (1980 - 1995);- era of co-determination and cooperation (since 1995);

• Human rights - rights of individuals- protection of minorities

• Balance between employer and employee rights;

Sources of Labour Relations• Regulated through a variety of documents,

agreements and forums;

- workplace;

- bargaining chambers (ELRC);

- courts (labour court);

- parliament.• 10 Different sources: (1) individual contracts, (2) legislation,

(3) sectoral determinants, (4) collective agreements, (5) guidelines by labour courts, (6) international labour standards, (7) jurisprudence of foreign courts, (8) custom and practice, (9) constitutional provisions and (10) common law.

Legislation• South African Constitution (Act 108 of 1996), and

the Bill of Rights (to regulate the power of the state and to determine basic principles for the development of legislation);

• Labour Relations Act (Act 66 of 1995);• Employment of Educators Act (Act 76 of 1998);• International Labour Organisation (ILO) -

Convention no. 111, ratified by SA“achievement of equality of opportunity and treatment in respect of employment and occupation and through the elimination of discrimination” (Tinarelli (2000, 7).

Constitution• Bill of Rights - Section 23 - Labour relations

- right to fair labour practices- Rights of employer, worker, trade unions;

• Section 7 - founding values: human dignity, equality and freedom;• Section 8 - application of Bill of Rights;• Section 9 - affirmative action;• Section 10 - human dignity;• Section 12 - freedom and security of the person;• Section 18 - freedom of association;• Section 22 - freedom of trade, occupation and profession;• Section 24 - environment;• Section 33 - just administrative action;• Section 36 - ‘limitation clause’

Labour Relations Act• Purpose of the Act - advance economic development, social justice,

labour peace and democratisation of the workplace - give effect to and regulate the fundamental rights of section 27 of Constitution;- give effect to the obligations of ILO;- provide a framework within which employees, trade unions, employers and employers’ organisation can

* collectively bargain - wages, conditions of service;* formulate industrial policy

- promote:* orderly collective bargaining;* collective bargaining at sectoral level;* employee participation in decision making at workplace;* effective resolution of labour disputes.

Employment of Educators ActTo provide for the employment of educators by the State, for the

regulation of the conditions of service, discipline, retirement and discharge of educators and for matters connected therewith.

• Chapter 1 - interpretation and application of Act;• Chapter 2 - conditions of service and educator establishments;• Chapter 3 - appointments, promotions and transfers;• Chapter 4 - termination of services;• Chapter 5 - incapacity and misconduct;

Education Laws Amendment Act (Act 53 of 2000) - Schedule 1: Incapacity code and procedures for poor work performance; … in respect of ill health and injury - Schedule 2: Disciplinary code and procedures for educators;

• Chapter 6 - South African Council for Educators (repealed)• Chapter 7 - General.

South African Council for Educators• Chapter 1 - interpretation and objects of the

Act;• Chapter 2 - continuation, powers and duties,

composition and governance of council;• Chapter 3 - registration of educators;• Chapter 4 - general

• Code of professional ethics:- ‘noble calling of their profession’- ‘commit themselves to do all within their powers …

Other statutes• Public Service Act (Proclamation no. 103 of

1994);• Occupational Health and Safety Act (Act 85 of

1996);• Basic Conditions of Employment Act (Act 75 of

1997);• Employment Equity Act (Act 55 of 1998);• Skills Development Act (Act 56 of 1998);• Promotion of Administrative Justice (Act 3 of

2000)------------------• South African Schools Act (Act 84 of 1996);• National Education Policy Act (Act 27 of 1996)

Common Law

Several common law principles:• Are still valid and referred to SA context;• Have been developed i.t.o. Constitution, to suit

modern tendencies and demands;• Have been codified in statutes such as Promotion

of Administrative Justice Act;

• Non-compliance with the audi alteram partem principle = employee not granted a fair hearing, then dismissal becomes procedurally unfair;

Application of Common Law PrinciplesCommon law principle or maxim Brief meaning

APPLICATION NORMALLY IN ADMINISTRATIVE ACTION

Audi alteram partem Let the other side (of the story) also be heard

Nemo ludex in propria causa est No one is fit to judge (or witness) his own case

Ultra vires To act outside the scope of one’s power

Intra vires To act within the power or competence

APPLICATION NORMALLY IN CASES OF THE LAW OF DELICT

In loco parentis In the place (instead) of a parent

Actio legis Aqquiliae Delictual action or ‘Aquillian’ actionin cases of pecuniary losses

Actio iniuriarium Delictual claiming of satisfaction after injuries to body, name, etc.

Volenti non fit iniuria He who consents cannot receive an injury

Boni mores Good moral convictions that prevail in a specific community

Contra bonos mores Against good morals that prevails in a specific community

Pactum de non petendo in anticipando A contract not to claim damages

Solatum/solatia/solacium Reparation of personal harm for injury to feelings

APPLICATION NORMALLY IN THE LAW OF CONTRACT

Pacta servanda sunt Agreements are to be observed

Caveat subscriptor/emptor The person who signs a contract is bound by it and should be careful

Condicio sine qua non An essential condition/element

Case Law• Court case reports offer a clear indicationof

the interpretation and application of the legal principles at stake;

- labour courts;

- Labour appeals court;

- Constitutional court;

- CCMA awards

- ELRC judgements.

Continue next week

- 10.3 (p.256)

Thank You!