Abstract
The defining of the different types of labourers in South Africa has gone through many different stages, morphing into a progressive, constantly moving, idea. The historical meaning and subsequent reasoning for terms such as ‘employer’, ‘employee’ and ‘worker’, among others, is an area that is shared by the republic of South Africa and the United Kingdom, due to the historic ties in the old Empire. The split between the nations in the 1960s led to subsequent separate legal developments.
While the UK was a far more free and fair society, South Africa was in the midst of apartheid. The dissolution of the apartheid state in the 1990s meant that South Africa had much to catch up on in terms of equality. Poverty caused by race-based laws led to millions of vulnerable workers who were in need of labour protections to prevent abuse of power on the part of employers. Thus, South Africa took the route of attempting to classify as many people as possible into categories with the most labour protection. This was done from the Constitution of the Republic all the way down to legislation and policy and is in line with the current international law standards. The UK took a different route, being far less flexible, but still allowing for fairness in terms of labour disputes.
South Africa must, in the author’s opinion, be applauded for the steps it has taken to protect vulnerable workers. But no system is perfect, and this dissertation provides recommendations for the Republic, based on a comparative study with the United Kingdom, that would further the current goals of labour legislation. These recommendations look at not only labour law itself but connected areas that would further these aims. Recommendations include strong border control, ensuring that every person entering the Republic is documented, to ensure that employers do not exploit the illegal status of immigrants. Another recommendation is for South Africa to take a stance on the legality of certain illegal actions which are, counterintuitively, protected by labour law. On the legislative side, South Africa should pass more specific legislation, ensuring that each job has a legislative framework with basic minimum standards, so the distinction between ‘employee’ and ‘worker’ need not be so contentious. The example given is that if domestic workers have specific legislation which regulates hours, minimum pay and working conditions, one need not debate whether a domestic worker is an ‘employee’ or ‘worker’ to determine if certain protections are offered. All relevant protections would be clear and distinguishable through specific legislation, leading to less confusion as to the rights of vulnerable workers.