Second, the in which it provides rules that governs the "restrictive function" conduct of industrial conflict, ie restricting the lawful ambit of industrial action. Third, the in which it provides rules that govern the "auxiliary function" encouragement and extension of collective bargaining institutions. In reality there is a great overlap between these functions, but as tools of analysis they are quite useful. Regulatory Functions The conceptual corner-stone of labour law both historically and currently is the individual contract of employment as a legally enforceable relationship. In legal theory the employer and the employee are equal bargaining partners with freedom to decide on its terms. There is, however, a wide difference between legal theory and what happens in practice as far as the contract of employment is concerned. Kahn-Freud sums up this contradiction between legal theory and what happens in practice - ".... the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable (Labour figment of the legal mind known as the contract of employment". and the Law, p.8) In order to provide protection on behalf of the powerless individual employee, the State provides a floor of rights on such issues as fundamental rights of employees (see labour act), duration, particulars and termination of employment (s12) Restrictive Function In general terms the State acts as a referee in the dynamic relations between employers and employees. This analogy of a referee symbolizes the restrictive function of the State in so far as it limits and prescribes the freedom of action of the participants. The starting point when analyzing this function is to consider
Second, the "restrictive function" in which it provides rules that governs the conduct of industrial conflict, ie restricting the lawful ambit of industrial action. Third, the "auxiliary function" in which it provides rules that govern the encouragement and extension of collective bargaining institutions. In reality there is a great overlap between these functions, but as tools of analysis they are quite useful. Regulatory Functions The conceptual corner-stone of labour law both historically and currently is the individual contract of employment as a legally enforceable relationship. In legal theory the employer and the employee are equal bargaining partners with freedom to decide on its terms. There is, however, a wide difference between legal theory and what happens in practice as far as the contract of employment is concerned. Kahn-Freud sums up this contradiction between legal theory and what happens in practice - ".... the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the contract of employment". (Labour and the Law, p.8) In order to provide protection on behalf of the powerless individual employee, the State provides a floor of rights on such issues as fundamental rights of employees (see labour act), duration, particulars and termination of employment (s12) Restrictive Function In general terms the State acts as a referee in the dynamic relations between employers and employees. This analogy of a referee symbolizes the restrictive function of the State in so far as it limits and prescribes the freedom of action of the participants. The starting point when analyzing this function is to consider