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Labour Relations Act, 1995 (Act No. 66 of 1995)

Code of Good Practice

Who is an Employee

Part 5 : Interpretation of Labour Legislation



59. Any person who is considering the application of either the presumption of employment or the definition of an employee in a particular statute is engaged in the interpretation of that statute. Accordingly, they must be mindful of the approach that must be adopted to the interpretation of labour legislation.


60. Section 3  of the LRA provides that any person applying the Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.


61. The Constitutional Court has stated that section 3 of the LRA is an express injunction to interpret the provisions of the LRA purposively.25 A 'purposive' approach to interpretation considers a statutory provision broadly so as to give effect to the Constitution and to the underlying purpose of the statute. This may result in a generous interpretation of the relevant provision.26


62. In order to interpret labour legislation in compliance with the Constitution, a commissioner, arbitrator or judge must interpret its provisions in a way that ensures the protection, promotion and fulfilment of constitutional rights, in particular the labour rights contained in section 23 of the Constitution.27 If more than one interpretation can be given to a provision, the decision-maker must choose the interpretation that best gives effect to the Constitution, provided this does not unduly strain the language of the statute28 or infringe any protected right. The Labour Appeal Court extended the literal construction of the definition of an employee to include persons who have concluded contracts of employment to commence at a future date because a literal translation resulted in gross hardship, ambiguity and absurdity.29 The Constitutional Court has noted that security of employment is a core value of the LRA and this should be taken into account in determining whether a person is an employee and therefore entitled to protection against unfair dismissal.30


63. Section 39(2) of the Constitution requires that "when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. The Constitutional Court has confirmed that the common law must be interpreted in a way that develops the common law and ensures that it is consistent with constitutional principles.31


64. Section 23 of the Constitution establishes the fundamental rights in respect of labour relations. In particular, section 23(1) and (2) provide that—
"(1) Everyone has the right to fair labour practices.
(2) Every worker32 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."


65. The Constitutional Court has confirmed that the major source of South Africa's public international law obligations in respect of labour law, is the Conventions and Recommendations of the International Labour Organisation (ILO).33 Two supervisory bodies ensure the application and observation of these Conventions: the Committee of Experts on the Application of Conventions and Recommendations, and the Freedom of Association Committee of the Governing Body of the ILO.34


66. In certain instances, these bodies have expressed views on the categories of workers covered by particular Conventions. Article 2 of the Convention concerning Freedom of Association and Protection of the Right to Organise 87 of 1948 guarantees the right of "workers and employers without distinction whatsoever, to establish and join organisations of their own choosing, without prior state authorisation." The Freedom of Association Committee has held that the criteria for determining whether persons are covered by Convention 87 is not based on the existence of an employment relationship and self-employed workers in general should enjoy the right to organise.35 South Africa has ratified Convention 87 and compliance with its provisions therefore constitutes a public international law obligation.


67. The ILO has adopted an Employment Relationship Recommendation that addresses issues of criteria that define an employment relationship, as well as indicators that are associated with an employment relationship. A copy of the Recommendation is attached to this Code.


68. Section 3(d) of the Employment Equity Act specifically provides that the Act should be interpreted in compliance with the ILO's Discrimination (Employment and Occupation) Convention 111 of 1958.


25 National Education Health and Allied Workers Union (NEHAWU) v UCT and others at para 41.
26 S v Zuma at paras 15 -16; S v Makwanyane and Another at paras 9 -10.
27 See National Education Health and Allied Workers Union v University of Cape Town and others at para 14. In South African National Defence Union v Minister of Defence and Another at paras 20 -29.
28 De Beer NO v North-Central Local Council and South-Central Local Council and Others at para 24; and NUMSA and Others v Bader Bop (Pty) Ltd and Another at para 37.
29 Wyeth SA (Pty) Ltd & others v Manqele at paras 50-52.
30 NEHAWU v UCT at para 47.
31 Pharmaceutical Manufacturers Association of SA and Others; In re: Ex Part e Application of President of the RSA and Others at para 49; Carmichele v Minister of Safety and Security and Another at paras 39 -40.
32 The Constitutional Court has held that the term 'worker' in section 23(2) includes, military personnel who are expressly excluded from the ambit of the LRA and other labour legislation (South African Defence Union v Minister of Defence and Another at para 25).
33 NUMSA and Others v Bader Bop (Pty) Ltd and Another at para 28.
34 NUMSA and Others v Bader Bop (Pty) Ltd and Another at paras 29-30.
35 Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (4ed) (ILO, Geneva 1996).