Abstract:
Inherent in any employment relationship is the imbalance of bargaining
power between the parties to the employment contract. On a globalised
scale, this imbalance is exacerbated where employees are often reliant
on the provisions within their contract to ensure they are adequately
protected. Party autonomy enables the parties to choose the legal
system that will govern these provisions and the employment
relationship as a whole. The doctrine of mandatory rules purports to
make applicable those 'laws of a strictly positive, imperative nature' so
as to guarantee the protection of employees' interests where party
autonomy serves to conceal the power imbalance within the
employment relationship. The Labour Court has, however, often
misunderstood and neglected to consider the application of private
international law rules, which are inclusive of the mandatory rule
doctrine. The aim of this article is, therefore, to critically analyse the
doctrine and question whether, from a comparative perspective, South
African labour law can be considered as fitting within this framework as
developed within the European Union and the United States, so as to
ensure its protective elements are applied in the appropriate instances.
