Regulated Flexibility and Small Business: Revisiting the LRA and the BCEA

The object of the paper is to identify the conceptual underpinnings of the labour law reforms of the 1990s, particularly the concept of regulated flexibility, and the changes to the labour market since then in order to review the performance of those reforms and to propose changes to more appropriately regulate that market. The main argument made in this paper is that the concept of regulated flexibility may be put to good use in extending protection to those who most need it and limiting intervention, particularly judicial intervention, where there is no appreciable gain in protection. The paper reviews the regulation each of the standard incidents of the employment relationship, from recruitment to termination, and finds that much of this regulation (in the form of an unfair labour practice remedy) escaped careful scrutiny in the reform process in the 1990s. The unfair labour practice remedy has, for the most part, become a charter of rights for middle and senior management while the most vulnerable workers are left without protection. Rather than intensifying regulation, labour law reform should be setting its sights on the extension of protection to those who most need it, namely employees in atypical employment. The paper makes various proposals to fine-tune the legal regulation of the labour market, in particular removing unnecessary regulation in the form of judicial interference in the employment relation and extending legislative protection to the most vulnerable.