Study Unit 2: International Standards and the Constitution (1 week)

Learning outcomes

• Explain when was the ILO established, what was (and is) the relationship
between SA and the ILO and when did SA re-join the ILO?
• Explain what are the core conventions and with what do they deal?
• Explain the difference between ILO “conventions” and “recommendations”?
• Explain why international labour standards are important in the application and
interpretation of domestic law?
• Discuss the role played by international standards in the constitutional court
cases of SANDU v Minister of Defence and NUMSA v Bader Bop.
• Explain in your own words, the three ways in which constitutional rights have the
potential to affect labour law.
• Discuss the content and meaning of section 23(1) and who is covered by this
right.
• Explain the rights provided for in sections 23(2)-(6).
• Discuss whether there is a constitutional duty on parties to engage in collective
bargaining.
 International Labour Standards

- ILO was established in 1919, as part of the Treaty of Versailles that ended
World War I to reflect the belief that ”universal and lasting peace can only be
accomplished only if it's based on social justice
- the Union of SA was a signatory to this Treaty, which also created the League
of Nations.
- Following the end of World War II, the United Nations (UN) replaced the
League of Nations, and the ILO became the UN's first specialized agency.
- As a founding member of the UN, South Africa remained a member of the
ILO.
- Apartheid became the focal point of debate in the ILO and in 1961 the
International Labour Conference adopted a resolution to have SA withdrawn
from the ILO on account of the apartheid policy of its government.
- South Africa withdrew in 1964. For the 30 years that SA was not a member of
the ILO,
- The ILO played a significant role in the international campaign against
apartheid.
- Each year the Special Committee on Apartheid tabled a report to the
Conference on labour-related aspects of apartheid, drawing the attention of
an international audience to the oppression of Black trade union movements,
the denial of basic labour rights to Black workers and broader issues relating
to SA labour market policy.
- In 1992, the ILO’s Fact-finding and Conciliation Commission visited South
Africa after COSATU filed a complaint regarding amendments to the 1956
Labour Relations Act (LRA). The Commission made recommendations aligned
with ILO standards, which became an important reference when the new LRA
was drafted after South Africa's transition to democracy.
- South Africa re-joined the ILO on 26 May 1994 after the end of apartheid.
Since rejoining, South Africa has ratified all of the ILO's core conventions and
has played a significant role in the organization’s affairs.

ILO comprises of three main bodies:

 International Labour Conference

 Governing Body
 International Labour Office

What are the most important ILO Standards?

- Conventions
- Recommendations

Conventions

Adoption Process:

- Conventions are adopted by the International Labour Conference

(ILC), the governing body of the ILO.
- The a proposed convention is usually discussed in a tripartite
committee made up of representatives from governments, employers,
and workers' organizations.
- Often, the committee meets over two consecutive years to review and
refine the text of the proposed convention and accompanying
recommendations.

Double Discussion:
 - The convention text is first discussed in the committee, and after the
first year’s discussion, the draft is sent to governments for feedback.
- A second discussion is then held, where a drafting committee is
appointed to finalize the text of the convention.
- After this, the convention is submitted to the full plenary session of the
Conference for final adoption.

Adoption Requirements:

o For a convention or recommendation to be adopted, it must be

approved by a two-thirds majority of the delegates present at the
session.

o In some cases, conventions and recommendations can be adopted

after only one discussion if there is sufficient agreement.

Conventions are not automatically binding, the ILO’s Constitution provides

for the voluntary assumption of obligation, so the convention becomes
binding on the state only one’s the state has ratified the convention.

A recommendation is not capable of ratification, and is not binding on a

member of state. They provide guidelines on how a particular matter may be
regulated, or when adopted with a convention, provide more detailed
measures that are supportive of the terms of the convention itself.

Difference between convention and recommendation

Convention Recommendation
 o Can be ratified by member o Not capable of ratification
states through voluntary o Not binding on member states
assumption of obligation. o Provides guidelines on how a
o Then becomes binding on particular matter might be
member states that ratified the regulated or when adopted with
convention a convention, provide more
detailed measures that are
supportive of the terms of the
convention itself.

What is the role of ratification of a convention?

Ratification of conventions:

 Conventions are not automatically binding, not even on those member

states that voted in favor of the adoption of the convention.
 Rationale:
- resistance to the concept of an international labour parliament that
would have the power to bind sovereign member states to standards
adopted by a requisite majority.
- ILO’s constitution therefore provides for the voluntary assumption of
obligation, so that a convention becomes binding only once that state
has ratified the convention.
 Article 19, paragraph 5(d) of the ILO constitution:
- A member state ratifying a convention is obliged to take such action as
may be necessary to make effective the provisions of the ratified
convention.
 Ratification also has the consequence of submission to the ILO’s
supervisory bodies, including the complaints procedure established by the
ILO’s Constitution

What are the 8 core conventions?

1. Freedom of Association and the Right to Organise Convention

2. Right to Organise and Collective Bargaining Convention
3. Forced Labour Convention
4. Abolition of Forced Labour Convention
5. Minimum Age Convention
6. Worst Forms of Child Labour Convention
7. Equal Remuneration Convention
8. Discrimination (Employment and Occupation) Convention

Impact of the ILO on SA labour law

ILO standards have a particular status:

o The Constitution requires that we apply ILO standards when interpreting

SA legislation.
o The Bill of Rights must be interpreted in line with international norms.

Section 39 of the Constitution:

Section 232 of the Constitution:

- Customary international law is law in the Republic unless it is

inconsistent with the Constitution or an Act of Parliament.

Section 233 of the Constitution:

- When interpreting any legislation, every court must prefer any

reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.

Application of ILO standards by SA courts:

SA National Defence Union v Minister of Defence (1999):

- S39(1) and 233 of the Constitution and the importance of ILO

Standards
 Challenged the provision in the Defence Act that provided that members
of the defence force cannot form and join trade unions.
 Basis for challenging its constitutionality was s 23(2) of the Constitution
which provides for workers to have the right to work trade unions.
 The argument from the Defence Force was that members of the defence
force do not constitute ‘workers’ as defined in s 23 of the Constitution.
 The CC considered 2 international standards, conventions 87 and 98.
 Both conventions deal with freedom of association and collective
bargaining
 These conventions make reference to the armed forces.
 Convention 87 also provide that workers without distinction can establish
and join organisations of their choosing.
 Therefore, the court held that the ILO considers armed forces as workers
and therefore s 23(2) had to be interpreted to include armed forces
within the ambit of ‘workers’.
 CC did recognize that armed forces are a different category of worker,
but ultimately the provisions of s 23 should be purposefully interpreted
and therefore soldiers should be included to be workers.
 Thus, this prohibition that prevented armed forces from joining and
forming trade unions was unconstitutional.
 This limitation was also not justifiable in terms of s 36 of the Constitution

NUMSA v Bader Bop (Pty) Ltd:

- S39(1) and 233 of the Constitution and the importance of ILO

Standards
• Trade unions are afforded organisational rights (right to elect members, to
come to workplace at employer and hold meeting with members, etc.)
• In order for a union to be afforded, union must be sufficiently represented
or have majority representation (50% + 1 of workers at the workplace as
members)
• This case dealt with a minority union, NUMSA.
• They were thus not entitled to organisational rights in terms of the LRA.
• They wanted to be allowed recognition of their members as shop stewards
by the employer.
• Threatened to strike if not afforded this organisational right by employer.
• Employer argued that NUMSA had to follow proper dispute resolution
processes, not strike.
• Court relied on convention 87 and 98.
• Convention 87 affords workers the right to choose the organisation they
wish to join.
• Because workers should have a choice, it found that minority unions must
exist, organise, and represent members.
• If minority unions did not allow the opportunities to fight for members’
rights, employers will have to join majority unions in order to have their
rights protected.
• Permitting minority unions to strike over the issue of shop steward
recognition is more in accordance with freedom of association entrenched
in ILO conventions.
• NUMSA could strike over this organisational right that it was trying to be
afforded by the employer.

The Constitutional Framework

The LRA was enacted a month before the final Constitution was signed into
law.

The interim Constitution came into force in 1994 and introduced the principle
of constitutional supremacy and established a Bill of Rights.

 The nature and scope of statutory labour rights were no longer the
subject of parliamentary sovereignty.
 Constitution became the supreme law.
 The provisions of the new LRA were thus required to be consistent with
the Constitution to give expression to the labour rights incorporated in
the interim Constitution.
- Right to fair labour practices and to organise and bargain collective.
 These rights were subject to an insulation clause to the effect that
existing laws promoting fair employment practices, orderly and equitable
collective bargaining and the regulation of industrial action would remain
in force until repealed or amended.
 Purpose of insulation clause was to preserve the statutory status quo
pending the introduction of the new LRA.

SA labour law’s development had undergone a fundamental change driven

by the Industrial Court’s interpretation and application of the concept of the
unfair labour practice – an important component was the status accorded to
international law in the interim Constitution and the consequences of SA’s
readmission to the ILO
Section 23: Labour relations

1. Everyone has the right to fair labour practices.

2. Every worker has the right.
a) To form and join a trade union.
b) To participate in the activities and programmes of a trade union; and
c) To strike
3. Every employer has the right.
a) To form and join an employers’ organisation; and
b) To participate in the activities and programmes of an employers’
organisation
4. Every trade union and every employer’s organisation have the right.
a) To determine its own administration, programmes, and activities
b) To organise; and
c) To form and join a federation.
5. Every trade union, employers’ organisation and employer have 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 s 36(1)
6. 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 s 36(1)

Other rights in the Bill of Rights that has an impact on labour relations:

• S 9 – equality clause
• S 10 – right to dignity
• S 18 – right to freedom of association
• S 22 – right of all citizens to choose their trade, occupation, and
profession freely.
The Constitution affects labour law in 3 ways:

i. Testing the validity of legislation

ii. Interpreting legislation
iii. Developing the common law

Testing the validity of legislation:

• SA National Defence Union v Minister of Defence and Another (SANDU)

– Constitutionality of the Defence Act

- The CC considered whether the absence of a justiciable duty to

bargain in the LRA infringed the constitutional right to engage in
collective bargaining

Interpretation of legislation

- Assign Services (Pty) Ltd v NUMSA and Others 2018 (5) SA 323 (CC)-
Proper interpretation of the deeming provision

Developing the common law

• Murray v Minister of Defence [2008] 6 BLLR 513 (SCA) – murray’s

employment was governed by s23(1) and that this right as developed
by common law includes protection against constructive dismissal
Wording in s 23(1) reference to ‘everyone’ having right to fair labour
practices has generated debate whether this broadened the scope of the
right beyond the employment relationship.

Cheadle’s argument:

o Emphasis ought to be placed on ‘labour practices’ rather than

‘everyone’.
o Labour practices are the practices that arise from the relationship
between workers, employers, and their respective organisations.

NEHAWU v University of Cape Town:

o The reference to ‘everyone’ extends to employers.

o CC held that fairness must be applied to both employees and
employers.
o Where the rights in the section are guaranteed to workers or
employers or trade unions or employers’ organisations, the
Constitution says so explicitly. If the rights in s 23(1) were to be
guaranteed to workers only, the Constitution should have said so.
o Applies to all employers, whether they are natural or juristic persons.

Pretorius v Transnet Pension Fund:

o The reference to ‘everyone’ extends beyond those engaged in formal

employment:
o The right to fair labour practices extends beyond formal employment
to other forms of engagement in work

CC has held that the right to fair labour practice is incapable of a precise
definition. The scope of ‘labour practices’ may embrace:
 a. Unfair practices relating to work security and employment
opportunities
b. Minimum standards accorded in BCEA
c. Potentially rights legislated in other labour legislation such as health
and safety
d. Collective bargaining rights

SECTION 23(2) AND (3): THE RIGHT TO FORM, JOIN AND PARTICIPATE IN THE
ACTIVITIES OF A TRADE UNION AND EMPLOYERS’ ORGANISATION

Are soldiers considered ‘workers’?

 On the one hand, members of armed forces render services for which they
receive a range of benefits.
 On the other, their enrolment in the permanent force imposes upon them
an obligation to comply with the rules of the Military Discipline Code
 A breach of that obligation of compliance constitutes a criminal offence.
 In many respects, therefore, the relationship between members of the
permanent force and the defence force is akin to an employment
relationship.
 In relation to punishment for misconduct, however, it is not.
 If the approach of the ILO is adopted, it would seem to follow that when s
23(2) speaks of ‘worker’, it should be interpreted to include members of
the armed forces, even though the relationship they have with the
defence force is unusual and not identical to an ordinary employment
relationship.

SANDU v Minister of Defence:

- CC interpreted the term ‘every worker’ to include members of the

armed forces, even though their relationship with the Defence Force is
unusual and not identical to an ordinary employment relationship.
 - Defence Force members may join a trade union.
- The structure and scope of such a trade union might differ given the
military environment.
- In appropriate circumstances, the constitutional right to join a trade
union may be limited, provided that said limitation is constitutionally
justifiable

Sections 23(4) and (5)

SECTION 23(4) TRADE UNION AND EMPLOYERS’ ORGANISATION RIGHTS

ILO’s Freedom of Association and Protection of the Right to Organise

Convention:

- Provides for the rights of trade unions and employers’ organisations to

determine their own administration, programmes, and activities, to
organise and to form and join federations.
- Section 8 of LRA: Gives expression to these rights in virtually identical
wording.

The LRA establishes organisational rights that may be acquired by trade

unions either by agreement or through a process of arbitration.

SECTION 23(5): THE RIGHT TO ENGAGE IN COLLECTIVE BARGAINING

- This right is also embodied in the preamble and s 1 of the LRA.

- To further this right, the LRA entrenches the right to freedom of
association and to assemble, demonstrate, picket and petition and
establishes organisational rights, promotes collective bargaining, and
protects the right to strike.
- But nowhere in the LRA is there a duty to bargain.
Does the right to engage in collective bargaining in s 23(5) encompass a
duty to bargain?

Cheadle argues that the right to engage in collective bargaining is composed

of three elements:

1. There is the freedom to bargain collectively.

o This is a negative right to collective bargaining.
o It is a right that may be enforceable against employers’ organisations
and trade unions that, by collective agreement or by the exercise of
economic power, prevent employers and workers from engaging in
collective bargaining.

2. The right to use economic power.

o The right to bargain collectively constrained within it the right to
exercise economic power against bargaining partners.
3. The positive right to bargain.
o It is a state-enforced compulsion to bargain collectively which is why it
is normally referred to by its correlative, the ‘duty to bargain’.
o The positive ‘duty to bargain’ carries with it a policy choice as to the
level of collective bargaining and the regulatory regime that is
necessary to govern and maintain it.
o The ‘duty to bargain’ is not an aspect of the right to bargain
collectively in the manner articulated in international instruments
which assert the freedom to bargain but not the form that bargaining
should take and in particular not the positive right to compel an
employer or trade union to bargain collectively.

Cheadle develops three arguments against interpreting the right to engage

in collective bargaining in s 23(5) so as to include a positive right to bargain.
- A duty to bargain is more than just a right as it involves policy choices
such as the form and level of collective [Link] results in a
complex system that requires a delicate balance to maintain it and
imposing a duty to bargain may tip the balance in favour of unanticipated
and unfortunate affects.
- International labour standards and foreign jurisdictions do not promote a
duty to bargain. The ILO Committee of Freedom of Association has
endorsed this view and states ‘collective bargaining, if it is to be effective,
must assume a voluntary quality. Measures of compulsion would alter the
voluntary nature of such bargaining’.
- ILO Convention 98 endorses this approach.
- The wording in s 23(5) and the right to engage in collective bargaining
read with Constitutional Principle XXVIII is restricted to a freedom to
bargain collectively and that the forms, processes and institutions and
levels are the subject matter for the legislature

Is there a constitutional duty to engage in collective bargaining and

can an employee rely on the constitutional provision despite the
fact that the LRA regulates this aspect?

SANDU 1999:

• CC held that soldiers were ‘akin’ to employees and that the provisions of
the Defence Act and its regulations that prohibited soldiers from
belonging to trade unions were unconstitutional and invalid.
• The minister was obliged to establish a collective bargaining structure for
the Defence Force and to publish regulations to achieve this end.
• When the minister failed to amend the regulations, SANDU approached
the HC on 2 separate occasions.
SANDU I:

• Held that the SANDF was not obliged to bargain collectively with the
SANDU and that the withdrawal of the SANDF from the negotiations was
reasonable.
• S 23(5) does not impose an obligation upon an employer to bargain
collectively with a trade union and neither was there any legislative duty
to do so.

SANDU II and SANDU III:

• HC held that s 23(5) grands a trade union the right to engage in collective
bargaining with an employer and in addition places a duty on the
employer to bargain with the trade union.

SANDU III:

• Union sought an interdict restraining SANDF from implementing and

proceeding with a transformation and restructuring policy without
consulting and negotiating with the SANDU.
• SANDU declared a dispute in the Military Bargaining Council
• The union referred the dispute to arbitration.
• SANDF took the view that there was no duty to bargain, and it could
unilaterally implement the policy in the public interest.
• HC held that there was a duty to bargain with SANDU and restrained the
SANDF from implementing the policy until the outcome of the arbitration
in the MBC
All three cases went on appeal. SCA heard three appeals simultaneously.

SCA case:

• SCA considered the provisions of the Constitution and observed that the
expression ‘right to engage in collective bargaining’ in s 23(5) is open to
more than one interpretation.
• Referred to as 233 of the Constitution and found that there is much in
international law that is helpful in interpreting s 23(5)
• Concluded that a distinct preference for voluntarism, for a system that
functions without reliance on a legally enforceable right to bargain,
emerges from these provisions, and this is reinforced by the Collective
Bargaining Convention 1981
• Concluded that the Constitution, while recognizing and protecting the
central role of collective bargaining in our labour dispensation, does not
impose on employers or employees a judicially enforceable duty to
bargain.
• It does not contemplate that, where the right to strike is removed or
restricted, but is replaced by another adequate mechanism, a duty to
bargain arises

CC case:

• Held that where legislation is enacted to give effect to a constitutional

right, a litigant may not bypass that legislation and rely on the
Constitution without challenging the legislation is falling short of the
constitutional standard.
• CC was not therefore required to determine whether s 23(5) conferred a
justiciable duty to bargain collectively on employers and trade unions and
 neither endorsed nor rejected the approach to s 23(5) of the Constitution
adopted by the SCA.
• Noted that should s 23(5) establish a justiciable duty to bargain
enforceable by either employers or unions outside the legislative
framework to regulate the duty, the court may be drawn into a range of
controversial industrial relations issues and this would be generally
undesirable.

Answer to question:

- No constitutional duty to engage in collective bargaining (SCA decision)

- An employee cannot rely on the constitutional provision despite the
fact that the LRA regulates this aspect (CC decision)

Section 23(6) Union Security Arrangements

The LRA permits 2 forms of union security arrangements

a) Closed Shop (Section 26 of the LRA): a majority union or unions making up

a majority in a workplace, may conclude a collective agreement requiring
all employees covered by the agreement to be members of the trade
union.

b) Agency Shop (Section 25 of the LRA): membership of the trade union is

not obligatory, but those employees eligible for membership but who
elect not to become members pay an agency fee.

Limitations of rights

S 36(1) rights may be limited by law of general application to the extent that
it is justifiable in an open and democratic society based on human dignity,
equality and freedom
In order for a limitation to be justifiable, it must “ serve a purpose that most
people would regard as compellingly important.

A law of general application includes; legislation, common law, customary

law BUT not policy or practice.

S36 list factors that must be considered when considering the

reasonableness and justifiability of the limitation:

o The nature of the right

o The importance of the purpose of the limitation
o The nature and extent of the limitation
o The relation between the limitation and its purpose, and
o Less restrictive means to achieve the purpose

Principle of Subsidiarity

• Litigants are prohibited from relying directly on the provisions of the

Constitution when legislation has been adopted to give effect to
constitutional rights

• Labour relations in general and the LRA particularly were adopted to give
effect to constitutional rights and values
• The effect of the principle is that it is not possible to approach the court
directly based on a claim that the right to fair labour practices has been
infringed upon. The litigant must first challenge the constitutionality of the
omission from such legislation.

Pretorius v Transnet Pension Fund [2018] 7 BLLR 633 (CC)

- Was the exception

- While the subsidiarity principle suggests that matters should be
resolved at the most local or immediate level, the Pretorius case
highlights that subsidiarity does not always apply when fundamental
rights are at stake. In this case, the Constitutional Court intervened
because it determined that the pension fund's decision affected the
constitutional rights of the individual, particularly administrative
fairness, thus requiring judicial review despite the subsidiarity principle
favoring internal resolution.

Question

1) Independent contractors are excluded from the definition of employee

in the LRA and BCEA. However, section 23(1) of the Constitution says
that everyone has the right to fair labour practices. In view of this,
discuss whether an independent contractor, such as uber drivers can
rely on section 23(1) to challenge a possible violation of their right to
fair labour practices.
2) The LRA promotes collective bargaining but does not compel parties to
bargain. Discuss the potential success of a trade union seeking court
intervention to compel an employer to engage in collective bargaining,
based on constitutional provisions.