Understanding how labour law defines a workplace is more important than ever, especially in a world where working from home is becoming the norm and businesses are navigating complex retrenchment and union representation processes.
The term “workplace” carries significant legal weight. Defined in section 213 of the Labour Relations Act (LRA) of 1995, it serves as the basis of many employment-related decisions that can impact both employers and employees.
What does the law say about the workplace?
The term “workplace” is defined in section 213 of the LRA as follows:
“The place or places where the employees of an employer work. If an employer conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation constitutes the workplace for that operation…”
At first glance, this definition may seem straightforward, but applying it in practice often isn’t and may require case-by-case analysis.
Case law suggests that CCMA commissioners do not readily accept that geographically distinct places of work constitute separate workplaces. The bias appears to favour treating the business as a whole as a single workplace, placing the onus on the party alleging that the workplaces should be treated separately to prove its case.
What does this mean in practice? Several key labour-related decisions rely on how the workplace is defined, particularly in the context of remote work, retrenchments and union representation.
Remote work and occupational health & safety
Remote work is here to stay – and with it, new questions about employer responsibilities. According to the Occupational Health and Safety Act (OHSA), a workplace includes:
“…any premises or place where a person performs work in the course of his (or her) employment.”
The term “work” means “…work as an employee or as a self-employed person, and for such purpose an employee is deemed to be at work during the time that he is in the course of his employment”.
This means a home office or remote location where work is performed may also be considered a workplace under OHSA.
Why this matters
- Employers may still have health and safety responsibilities even when staff work from home.
- Employees working remotely are still regarded as “at work” under the law.
In simple terms, your duty of care as an employer does not end at the office door.
Retrenchment procedures: section 189 or 189A
The definition of “workplace” is central to determining which retrenchment procedure applies under the LRA.
- Section 189 applies to smaller employers or those retrenching fewer people.
- Section 189A applies to employers with 50 or more employees and imposes stricter procedural obligations.
Example:
- Operation A has 40 employees, and Operation B has 20.
- Treated separately, retrenchments would fall under section 189.
- However, if the two operations are considered a single workplace (60 employees), section 189A applies if 10 or more employees are affected.
Therefore, correct classification of your workplace is critical to ensure legal compliance in the event of retrenchments.
Union representation and organisational rights
Determining whether a union has majority representation and is entitled to organisational rights as determined by sections 11 to 26 of the LRA, could depend on whether two or more operations constitute one workplace or several.
For instance, if operations are treated separately, a union may hold majority representation in one (for example, 15 of 20 employees). But if treated as a single workplace, the same union may only have sufficient representation (15 of 50 employees), limiting its rights.
In Chamber of Mines of South Africa obo Harmony Gold Mining Company Ltd and Others v Association of Mineworkers of South Africa and Others [2014] ZALCJHB 22, the labour court held that a single workplace exists where operational decisions, procedures, production planning and financial management are centrally controlled. The definition of “workplace” must be applied based on whether various operations function independently in terms of size, function or structure.
To summarise, by default all locations where an employer’s employees work are considered a single workplace, unless the operations are independent in terms of size, function or organisational structure – in which case they may be regarded as separate workplaces.
Determining whether your business locations constitute one or multiple workplaces is crucial under labour law. This definition impacts union representation, retrenchment procedures and considerations for employees working from home.
Our labour law experts at SERR Synergy can assist businesses in navigating these complex labour issues.
About SERR Synergy
As South Africa’s leader in legal compliance and transformation solutions since 2014, SERR Synergy provides expert employment equity compliance services aligned with your business’s strategic objectives. Our employment equity specialists and skills development facilitators offer professional guidance to ensure compliance with the amended Employment Equity Act. Contact us for expert advice on how employment equity may impact your business, including its role in B-BBEE compliance.
- The author, Jaco Conradie, is a specialist labour legal advisor at SERR Synergy’s Cape Town office. This article was published earlier on SERR Synergy’s website
- Read more articles by SERR Synergy on TechCentral
- This promoted content was paid for by the party concerned
Don’t miss: