Who Needs Labour Law? Defining the Scope of Labour Protection

Drawing on the experience of South Africa's ambitious efforts to reform labour law so as to serve a people left impoverished and under-skilled by apartheid, this chapter explores the folly of deploying a binary and centuries-old legal distinction to sort out the gradations of dependency and subordination found in contemporary work relationships. Defining an employee raises two related but distinct issues. The first is an issue of legislative policy — what legal instruments and institutions should determine who receives the protection of labour law. The second is a question of judicial interpretation — how courts and other arbitral forums interpret legal definitions of who should be covered by labour law. This chapter seeks to address both these issues. It suggests that the legislators have retained the traditional approach of placing the responsibility for determining who should receive the protection of labour law in the hands of the courts.