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REPUBLIC OF SOUTH AFRICA
No. 66 of 1995: Labour Relations Act
as amended by
Labour Relations Amendment Act, No 42 of 1996
Proclamation, No 66 of 1996
Labour Relations Amendment Act, No 127 of 1998
Labour Relations Amendment Act, No 12 of 2002
ACT
To change the law governing labour relations and, for that purpose-
* to give effect to section 27 of the Constitution;
* to regulate the organisational rights of trade unions;
* to promote and facilitate collective bargaining at the workplace
and at sectoral level;
* to regulate the right to strike and the recourse to lockout in
conformity with the Constitution;
* to promote employee participation in decision-making through the
establishment of workplace forums;
* to provide simple procedures for the resolution of labour disputes
through statutory conciliation, mediation and arbitration (for which
purpose the Commission for Conciliation, Mediation and Arbitration
is established), and through independent alternative dispute
resolution services accredited for that purpose;
* to establish the Labour Court and Labour Appeal Court as superior
courts, with exclusive jurisdiction to decide matters arising from
the Act;
* to provide for a simplified procedure for the registration of
trade unions and employers' organisations, and to provide for their
regulation to ensure democratic practices and proper financial
control;
* to give effect to the public international law obligations of the
Republic relating to labour relations;
* to amend and repeal certain laws relating to labour relations; and
* to provide for incidental matters.
BE IT ENACTED by the State President and the Parliament of the
Republic of South Africa, as follows:-
TABLE OF CONTENTS
CHAPTER ONE
Purpose, Application and Interpretation
1. Purpose of this Act
2. Exclusion from application of this Act
3. Interpretation of this Act
CHAPTER TWO
Freedom of Association and General Protections
4. Employees' right to freedom of association
5. Protection of employees and persons seeking employment
6. Employers' right to freedom of association
7. Protection of employers' rights
8. Rights of trade unions and employers' organisations
9. Procedure for disputes
10. Burden of proof
CHAPTER THREE
Collective Bargaining
Part A: Organisational Rights
11. Trade union representativeness
12. Trade union access to workplace
13. Deduction of trade union subscriptions or levies
14. Trade union representatives
15. Leave for trade union activities
16. Disclosure of information
17. Restricted rights in domestic sector
18. Right to establish thresholds of representativeness
19. Certain organisational rights for trade union party to council
20. Organisational rights in collective agreements
21. Exercise of rights conferred by this Part
22. Disputes about organisational rights
Part B: Collective Agreements
23. Legal effect of collective agreement
24. Disputes about collective agreements
25. Agency shop agreements
26. Closed shop agreements
Part C: Bargaining Council
27. Establishment of bargaining councils
28. Powers and functions of bargaining council
29. Registration of bargaining councils
30. Constitution of bargaining council
31. Binding nature of collective agreement concluded in bargaining
council
32. Extension of collective agreement concluded in bargaining
council
33. Appointment and powers of designated agents of bargaining
councils
34. Amalgamation of bargaining councils
Part D: Bargaining Councils In The Public Service
35. Bargaining councils in public service
36. Public Service Coordinating Bargaining Council
37. Bargaining councils in sectors in public service
38. Dispute resolution committee
Part E: Statutory Councils
39. Application to establish statutory council
40. Establishment and registration of statutory council
41. Establishment and registration of statutory council in absence
of agreement
42. Certificate of registration of statutory council
43. Powers and functions of statutory councils
44. Ministerial determinations
45. Disputes about determinations
46. Withdrawal of party from statutory council
47. Appointment of new representative of statutory council
48. Change of status of statutory council
Part F: General Provisions Concerning Councils
49. Representativeness of council
50. Effect of registration of council
51. Dispute resolution functions of council
52. Accreditation of council or appointment of accredited agency
53. Accounting records and audits
54. Duty to keep records and provide information to registrar
55. Delegation of functions to committee of council
56. Admission of parties to council
57. Changing constitution or name of council
58. Variation of registered scope of council
59. Winding-up of council
60. Winding-up of council by reason of insolvency
61. Cancellation of registration of council
62. Disputes about demarcation between sectors and areas
63. Disputes about Parts A and C to F
CHAPTER FOUR
Strikes and Lock-Outs
64. Right to strike and recourse to lockout
65. Limitations on right to strike or recourse to lockout
66. Secondary strikes
67. Strike or lockout in compliance with this Act
68. Strike or lockout not in compliance with this Act
69. Picketing
70. Essential services committee
71. Designating a service as an essential service
72. Minimum services
73. Disputes about whether a service is an essential service
74. Disputes in essential services
75. Maintenance services
76. Replacement labour
77. Protest action to promote or defend socio-economic interests of
workers
CHAPTER FIVE
Workplace Forums
78. Definitions in this Chapter
79. General functions of workplace forum
80. Establishment of workplace forum
81. Trade union based workplace forum
82. Requirements for constitution of workplace forum
83. Meetings of workplace forum
84. Specific matters for consultation
85. Consultation
86. Joint decision-making
87. Review at request of newly established workplace forum
88. Matters affecting more than one workplace forum in an employer's
operation
89. Disclosure of information
90. Inspection and copies of documents
91. Breach of confidentiality
92. Full-time members of workplace forum
93. Dissolution of workplace forum
94. Disputes about workplace forums
CHAPTER SIX
Trade Unions and Employers' Organisations
Part A: Registration and Regulation of Trade Unions and Employers'
Organisations
95. Requirements for registration of trade unions or employers'
organisations
96. Registration of trade unions or employers' organisations
97. Effect of registration of trade union or employers' organisation
98. Accounting records and audits
99. Duty to keep records
100. Duty to provide information to registrar
101. Changing constitution or name of registered trade unions or
employers' organisations
102. Amalgamation of trade unions or employers' organisations
103. Winding-up of registered trade unions or registered employers'
organisations
104. Winding-up of trade unions or employers' organisations by
reason of insolvency
105. Cancellation of registration of trade union that is no longer
independent
106. Cancellation of registration of trade unions or employers'
organisations
Part B: Regulation of Federations of Trade Unions and Employers'
Organisations
107. Regulation of federations of trade unions or employers'
organisations
Part C: Registrar of Labour Relations
108. Appointment of registrar of labour relations
109. Functions of registrar
110. Access to information
Part D: Appeals from Registrar's Decision
111. Appeals from registrar's decision
CHAPTER SEVEN
Dispute Resolution
Part A-Commission for Conciliation, Mediation and Arbitration
112. Establishment of Commission for Conciliation, Mediation and
Arbitration
113. Independence of Commission
114. Area of jurisdiction and offices of Commission
115. Functions of Commission
116. Governing body of Commission
117. Commissioners of Commission
118. Director of Commission
119. Acting director of Commission
120. Staff of Commission
121. Establishment of committees of Commission
122. Finances of Commission
123. Circumstances in which Commission may charge fees
124. Contracting by Commission, and Commission working in
association with any person
125. Delegation of governing body's powers, functions and duties
126. Limitation of liability and limitation on disclosure of
information
Part B: Accreditation of and Subsidy to Councils and Private
Agencies
127. Accreditation of councils and private agencies
128. General provisions relating to accreditation
129. Amendment of accreditation
130. Withdrawal of accreditation
131. Application to renew accreditation
132. Subsidy to council or private agency
Part C: Resolution of Disputes under Auspices of Commission
133. Resolution of disputes under auspices of Commission
134. Disputes about matters of mutual interest
135. Resolution of disputes through conciliation
136. Appointment of commissioner to resolve dispute through
arbitration
137. Appointment of senior commissioner to resolve dispute through
arbitration
138. General provisions for arbitration proceedings
139. Special provisions for arbitrating disputes in essential
services
140. Special provisions for arbitrations about dismissals for
reasons related to conduct or capacity
141. Resolution of disputes if parties consent to arbitration under
auspices of Commission
142. Powers of commissioner when attempting to resolve disputes
143. Effect of arbitration awards
144. Variation and rescission of arbitration awards
145. Review of arbitration awards
146. Exclusion of Arbitration Act
147. Performance of dispute resolution functions by Commission in
exceptional circumstances
148. Commission may provide advice
149. Commission may provide assistance
150. Commission may offer to resolve
Part D: Labour Court
151. Establishment and status of Labour Court
152. Composition of Labour Court
153. Appointment of judges of Labour Court
154. Tenure, remuneration and terms and conditions of appointment of
Labour Court judges
155. Officers of Labour Court
156. Area of jurisdiction and seat of Labour Court
157. Jurisdiction of Labour Court
158. Powers of Labour Court
159. Rules Board for Labour Courts and rules for Labour Court
160. Proceedings of Labour Court to be carried on in open court
161. Representation before Labour Court
162. Costs
163. Service and enforcement of orders of Labour Court
164. Seal of Labour Court
165. Variation and rescission of orders of Labour Court
166. Appeals against judgement or order of Labour Court
Part E: Labour Appeal Court
167. Establishment and status of Labour Appeal Court
168. Composition of Labour Appeal Court
169. Appointment of other judges of Labour Appeal Court
170. Tenure, remuneration and terms and conditions of appointment of
Labour Appeal Court judges
171. Officers of Labour Appeal Court
172. Area of jurisdiction and seat of Labour Appeal Court
173. Jurisdiction of Labour Appeal Court
174. Powers of Labour Appeal Court on hearing of appeals
175. Labour Appeal Court may sit as court of first instance
176. Rules for Labour Appeal Court
177. Proceedings of Labour Appeal Court to be carried on in open
court
178. Representation before Labour Appeal Court
179. Costs
180. Service and enforcement of orders
181. Seal of Labour Appeal Court
182. Judgements of Labour Appeal Court binding on Labour Court
183. Labour Appeal Court final court of appeal
Part F: General Provisions Applicable To Courts Established By This
Act
184. General provisions applicable to courts established by this Act
CHAPTER EIGHT
Unfair Dismissal
185. Right not to be unfairly dismissed
186. Meaning of dismissal
187. Automatically unfair dismissals
188. Other unfair dismissals
189. Dismissals based on operational requirements
190. Date of dismissal
191. Disputes about unfair dismissals
192. Onus in dismissal disputes
193. Remedies for unfair dismissal
194. Limits on compensation
195. Compensation is in addition to any other amount
196. Severance pay
197. Transfer of contract of employment
CHAPTER NINE
General Provisions
198. Temporary Employment Services
199. Contracts of employment may not disregard or waive collective
agreements or arbitration awards
200. Representation of employees or employers
201. Confidentiality
202. Service of documents
203. Codes of good practice
204. Collective agreement, arbitration award or wage determination
to be kept by employer
205. Records to be kept by employer
206. Effect of certain defects and irregularities
207. Ministers empowered to add and change to Schedules
208. Regulations
208A. Delegations
209. This Act binds the State
210. Application of Act when in conflict with other laws
211. Amendment of laws
212. Repeal of laws, and transitional arrangements
213. Definitions
214. Short title and commencement
SCHEDULE ONE
Establishment of Bargaining Councils for Public Service
1. Definitions for this Schedule
2. Establishment of Public Service Coordinating Bargaining Council
3. Establishment of bargaining council in sectors
SCHEDULE TWO
Guidelines for Constitution of Workplace Forum
1. Introduction
2. Number of seats in workplace forums (section 82(1)(a))
3. Distribution of seats to reflect occupational structure (section
82(l) (b))
4. Elections (section 82(l)(c), (d), (g), (h), (i) and (j))
5. Terms of office (section 82(l)(k), (1) and (m))
6. Meetings of workplace forum (section 82(l)(n))
7. Time off for members of workplace forum (section 82(1)(p))
8. Facilities to be provided to workplace forum (section 82(l)(r))
9. Experts (section 82(l)(t))
10. Establishment of coordinating and subsidiary workplace forums
(section 82(2)(b))
SCHEDULE THREE
Commission for Conciliation, Mediation and Arbitration
1. Remuneration and allowances of members of governing body
2. Resignation and removal from office of member of governing body
3. Vacancies in governing body
4. Proceedings of governing body
5. Director of Commission
6. Bank account
7. Investment of surplus money
8. Accounting and auditing
9. Annual report
SCHEDULE FOUR
Dispute Resolution: Flow Diagrams
SCHEDULE FIVE
Amendment of Laws
1. Amendment of section 1 of Basic Conditions of Employment Act
2. Amendment of section 35 of Occupational Health and Safety Act,
1993
3. Amendment of section 2 of Pension Funds Act, 1956
4. Amendment of section 2 of Medical Schemes Act, 1967
5. Amendment of section 1 of Insurance Act, 1943
6. Amendment of section 2 of Friendly Societies Act, 1956
7. Amendment of section 3 of Friendly Societies Act, 1956
SCHEDULE SIX
Laws Repealed By Section 212
SCHEDULE SEVEN
Transitional Arrangements
Part A: Definitions for This Schedule
1. Definitions for this Schedule
Part B: Unfair Labour Practices
2. Residual unfair labour practices
3. Disputes about unfair labour practices
4. Powers of Labour Court and Commission
Part C: Provisions Concerning Existing Trade Unions, Employers'
Organisations, Industrial Councils and Conciliation Boards
5. Existing registered trade unions and employers' organisations
6. Pending applications by trade unions or employers' organisations
for registration, variation of scope, alteration of constitution or
name
7. Industrial councils
8. Pending applications by industrial councils for registration and
variation of scope
8A. Pending enquiries by industrial registrar
9. Pending applications by industrial councils for alteration of
constitution or name
10. Pending applications for admission of parties to industrial
councils
11. Pending applications to wind up and cancel registration of trade
unions, employers' organisations and industrial councils
12. Existing agreements and awards of industrial councils and
conciliation boards
12A. Designated agents
13. Existing agreements including recognition agreements
Part D: Matters Concerning Public Service
14. Public Service Bargaining Council
15. Collective agreements in the public service
16. Education Labour Relations Council
17. Education sector collective agreements
18. Negotiating Forum in South African Police Service
19. Collective agreements in South African Police Service
20. Consequences for public service bargaining institutions when
Public Service Coordinating Bargaining Council is established
Part E: Disputes and Courts
21. Disputes arising before commencement of this Act
21A. Dispute resolution by councils before their accreditation
22. Courts
Part F: Pension Matters
23. Continuation of existing pension rights of staff members of
Commission upon assuming employment
Part G: Essential Services
24. Essential services in the public service
25. Essential services provided for in the Labour Relations Act
SCHEDULE EIGHT
Code of Good Practice: Dismissal
1. Introduction
2. Fair reasons for dismissal
3. Disciplinary measures short of dismissal
4. Fair procedure
5. Disciplinary records
6. Dismissals and industrial action
7. Guidelines in cases of dismissal for misconduct
8. Incapacity: Poor work performance
9. Guidelines in cases of dismissal for poor work performance
10. Incapacity: III health or injury
11. Guidelines in cases of dismissal arising from ill health or
injury
CHAPTER I
PURPOSE, APPLICATION AND INTERPRETATION
1. Purpose of this Act
The purpose of this Act¹ is to advance economic development, social
justice, labour peace and the democratisation of the workplace by
fulfilling the primary objects of this Act, which are-
(a) to give effect to and regulate the fundamental rights conferred
by section 27 of the Constitution;²
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation;
(c) to provide a framework within which employees and their trade
unions, employers and employers' organisations can-
(i) collectively bargain to determine wages, terms and conditions of
employment and other matters of mutual interest; and
(ii) formulate industrial policy; and
(d) to promote-
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace;
and
(iv) the effective resolution of labour disputes.
1 An italicised word or phrase indicates that the word or phrase is
defined in section 213 of this Act.
2 Section 27, which is in the Chapter on Fundamental Rights in the
Constitution entrenches the following rights:
(1) Every person shall have the right to fair labour practices.
(2) Workers shall have the right to form and join trade unions, and
employers shall have the right to form and join employers'
organisations.
(3) Workers and employers shall have the right to organise and
bargain collectively.
(4) Workers shall have the right to strike for the purpose of
collective bargaining.
(5) Employers' recourse to the lockout for the purpose of collective
bargaining shall not be impaired, subject to subsection 33(l).
2. Exclusion from application of this Act
This Act does not apply to members of-
(a) the National Defence Force;
(b) the National Intelligence Agency; and
(c) the South African Secret Service.
3. Interpretation of this Act
Any person applying this Act must interpret its provisions-
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of
the Republic.
CHAPTER II
FREEDOM OF ASSOCIATION AND GENERAL PROTECTIONS
4. Employees' right to freedom of association
(1) Every employee has the right-
(a) to participate in forming a trade union or federation of trade
unions; and
(b) to join a trade union, subject to its constitution.
(2) Every member of a trade union has the right, subject to the
constitution of that trade union-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers,
officials or trade union representatives;
(c) to stand for election and be eligible for appointment as an
office bearer or official and, if elected or appointed, to hold
office; and
(d) to stand for election and be eligible for appointment as a trade
union representative and, if elected or appointed, to carry out the
functions of a trade union representative in terms of this Act or
any collective agreement.
(3) Every member of a trade union that is a member of a federation
of trade unions has the right, subject to the constitution of that
federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or
officials; and
(c) to stand for election and be eligible for appointment as an
office-bearer or official and, if elected or appointed, to hold
office.
5. Protection of employees and persons seeking employment
(1) No person may discriminate against an employee for exercising
any right conferred by this Act.
(2) Without limiting the general protection conferred by subsection
(1), no person may do, or threaten to do, any of the following-
(a) require an employee or a person seeking employment-
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace, forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking employment from
exercising any right conferred by this Act or from participating in
any proceedings in terms of this Act; or
(c) prejudice an employee or a person seeking employment because of
past, present or anticipated-
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation of trade
unions or establishing a workplace forum;
(iii) participation in the lawful activities of a trade union,
federation of trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not
lawfully permit or require an employee to do;
(v) disclosure of information that the employee is lawfully entitled
or required to give to another person;
(vi) exercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or
a person seeking employment in exchange for that person not
exercising any right conferred by this Act or not participating in
any proceedings in terms of this Act. However, nothing in this
section precludes the parties to a dispute from concluding an
agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or
after the commencement of this Act, that directly or indirectly
contradicts or limits any provision of section 4, or this section,
is invalid, unless the contractual provision is permitted by this
Act.
6. Employers' right to freedom of association
(1) Every employer has the right -
(a) to participate in forming an employers' organisation or a
federation of employers' organisations; and
(b) to an employers' organisation, subject to its constitution.
(2) Every member of an employers' organisation has the right,
subject to the constitution of that employers' organisation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or
officials; and
(c) if-
(i) a natural person, to stand for election and be eligible for
appointment as an office-bearer or official and, if elected or
appointed, to hold office;
(ii) a juristic person, to have a representative stand for election,
and be eligible for appointment, as an office-bearer or official
and, if elected or appointed, to hold office.
(3) Every member of an employers' organisation that is a member of a
federation of employers' organisations has the right, subject to the
constitution of that federation-
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-bearers or
officials; and
(c) if –
(i) a natural person, to stand for election and be eligible for
appointment as an office-bearer or official and, if elected or
appointed, to hold office; or
(ii) a juristic person, to have a representative stand for election,
and be eligible for appointment, as an office-bearer or official
and, if elected or appointed, to hold office.
7. Protection of employers' rights
(1) No person may discriminate against an employer for exercising
any right conferred by this Act.
(2) Without limiting the general protection conferred by subsection
(1), no person may do, or threaten to do, any of the following-
(a) require an employer-
(i) not to be a member of an employers' organisation;
(ii) not to become a member of an employers' organisation; or
(iii) to give up membership of an employers' organisation;
(b) prevent an employer from exercising any right conferred by this
Act or from participating in any proceedings in terms of this Act;
or
(c) prejudice an employer because of past, present or anticipated-
(i) membership of an employers' organisation;
(ii) participation in forming an employers' organisation or a
federation of employers' organisations;
(iii) participation in the lawful activities of an employers'
organisation or a federation of employers' organisations;
(iv) disclosure of information that the employer is lawfully
entitled or required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in
exchange for that employer not exercising any right conferred by
this Act or not participating in any proceedings in terms of this
Act. However, nothing in this section precludes the parties to a
dispute from concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or
after the commencement of this Act, that directly or indirectly
contradicts or limits any provision of section 6, or this section,
is invalid, unless the contractual provision is permitted by this
Act.
8. Rights of trade unions and employers' organisations
Every trade union and every employers' organisation has the right-
(a) subject to the provisions of Chapter VI –
(i) to determine its own constitution and rules; and
(ii) to hold elections for its office bearers, officials and
representatives;
(b) to plan and organise its administration and lawful activities;
(c) to participate in forming a federation of trade unions or a
federation of employers’ organisations;
(d) to join a federation of trade unions or a federation of
employers’ organisations, subject to its constitution, and to
participate in its lawful activities; and
(e) to affiliate with, and participate in the affairs of, any
international workers' organisation or international employers'
organisation or the International Labour Organisation, and
contribute to, or receive financial assistance from, those
organisations.
9. Procedure for disputes ?
(1) If there is a dispute about the interpretation or application of
any provision of this Chapter, any party to the dispute may refer
the dispute in writing to-
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has jurisdiction.
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the
other parties to the dispute.
(3) The council or the Commission must attempt to resolve the
dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
refer it to the Labour Court for adjudication.
3. See flow diagram No. 1 in Schedule 4.
10. Burden of proof
In any proceedings-
(a) a party who alleges that a right or protection conferred by this
Chapter has been infringed must prove the facts of the conduct; and
(b) the party who engaged in that conduct must then prove that the
conduct did not infringe any provision of this Chapter.
CHAPTER III
COLLECTIVE BARGAINING
PART A: Organisational Rights
11. Trade union representativeness
In this Part, unless otherwise stated, "representative trade union"
means a registered trade union, or two or more registered trade
unions acting jointly, that are sufficiently representative of the
employees employed by an employer in a workplace.
12. Trade union access to workplace
(1) Any office-bearer or official of a representative trade union is
entitled to enter the employer's premises in order to recruit
members or communicate with members, or otherwise serve members'
interests.
(2) A representative trade union is entitled to hold meetings with
employees outside their working hours at the employer's premises.
(3) The members of a representative trade union are entitled to vote
at the employer's premises in any election or ballot contemplated in
that trade union's constitution.
(4) The rights conferred by this section are subject to any
conditions as to time and place that are reasonable and necessary to
safeguard life or property or to prevent the undue disruption of
work.
13. Deduction of trade union subscriptions or levies
(1) Any employee who is a member of a representative trade union may
authorise the employer in writing to deduct subscriptions or levies
payable to that trade union from the employee's wages.
(2) An employer who receives an authorisation in terms of subsection
(1) must begin making the authorised deduction as soon as possible
and must remit the amount deducted to the representative trade union
by not later than the 15th day of the month first following the date
each deduction was made.
(3) An employee may revoke an authorisation given in terms of
subsection (1) by giving the employer and the representative trade
union one month's written notice or, if the employee works in the
public service, three months' written notice.
(4) An employer who receives a notice in terms of subsection (3)
must continue to make the authorised deduction until the notice
period has expired and then must stop making the deduction.
(5) With each monthly remittance, the employer must give the
representative trade union-
(a) a list of the names of every member from whose wages the
employer has made the deductions that are included in the
remittance;
(b) details of the amounts deducted and remitted and the period to
which the deductions relate; and
(c) a copy of every notice of revocation in terms of subsection (3).
14. Trade union representatives
(1) In this section, "representative trade union" means a registered
trade union, or two or more registered trade unions acting jointly,
that have as members the majority of the employees employed by an
employer in a workplace.
(2) In any workplace in which at least 10 members of a
representative trade union are employed, those members are entitled
to elect from among themselves-
(a) if there are 10 members of the trade union employed in the
workplace, one trade union representative;
(b) if there are more than 10 members of the trade union employed in
the workplace, two trade union representatives;
(c) if there are more than 50 members of the trade union employed in
the workplace, two trade union representatives for the first 50
members, plus a further one trade union representative for every
additional 50 members up to a maximum of seven trade union
representatives;
(d) if there are more than 300 members of the trade union employed
in the workplace, seven trade union representatives for the first
300 members, plus one additional trade union representative for
every 100 additional members up to a maximum of 10 trade union
representatives;
(e) if there are more than 600 members of the trade union employed
in the workplace, 10 trade union representatives for the first 600
members, plus one additional trade union representative for every
200 additional members up to a maximum of 12 trade union
representatives; and if there are more than 1000 members of the
trade union employed in the workplace, 12 trade union
representatives for the first 1000 members, plus one additional
trade union representative for every 500 additional members up to a
maximum of 20 trade union representatives.
(3) The constitution of the representative trade union governs the
nomination, election, term of office and removal from office of a
trade union representative.
(4) A trade union representative has the right to perform the
following functions-
(a) at the request of an employee in the workplace, to assist and
represent the employee in grievance and disciplinary proceedings;
(b) to monitor the employer's compliance with the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer;
(c) to report any alleged contravention of the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer to-
(i) the employer;
(ii) the representative trade union; and
(iii) any responsible authority or agency; and
(d) to perform any other function agreed to between the
representative trade union and the employer.
(5) Subject to reasonable conditions, a trade union representative
is entitled to take reasonable time off with pay during working
hours-
(a) to perform the functions of a trade union representative; and
(b) to be trained in any subject relevant to the performance of the
functions of a trade union representative.
15. Leave for trade union activities
(1) An employee who is an office-bearer of a representative trade
union, or of a federation of trade unions to which the
representative trade union is affiliated, is entitled to take
reasonable leave during working hours for the purpose of performing
the functions of that office.
(2) The representative trade union and the employer may agree to the
number of days of leave, the number of days of paid leave and the
conditions attached to any leave.
(3) An arbitration award in terms of section 21(7) regulating any of
the matters referred to in subsection (2) remains in force for 12
months from the date of the award.
16. Disclosure of information
(1) For the purposes of this section, "representative trade union"
means a registered trade union, or two or more registered trade
unions acting jointly, that have as members the majority of the
employees employed by an employer in a workplace.
(2) Subject to subsection (5), an employer must disclose to a trade
union representative all relevant information that will allow the
trade union representative to perform effectively the functions
referred to in section 14(4).
(3) Subject to subsection (5), whenever an employer is consulting or
bargaining with a representative trade union, the employer must
disclose to the representative trade union all relevant information
that will allow the representative trade union to engage effectively
in consultation or collective bargaining.
(4) The employer must notify the trade union representative or the
representative trade union in writing if any information disclosed
in terms of subsection (2) or (3) is confidential.
(5) An employer is not required to disclose information-
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a
prohibition imposed on the employer by any law or order of any
court;
(c) that is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; or
(d) that is private personal information relating to an employee,
unless that employee consents to the disclosure of that information.
(6) If there is a dispute about what information is required to be
disclosed in terms of this section, any party to the dispute may
refer the dispute in writing to the Commission.
(7) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(8) The Commission must attempt to resolve the dispute through
conciliation.
(9) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(10) In any dispute about the disclosure of information contemplated
in subsection (6), the commissioner must first decide whether or not
the information is relevant.
(11) If the commissioner decides that the information is relevant
and if it is information contemplated in subsection (5)(c) or (d),
the commissioner must balance the harm that the disclosure is likely
to cause to an employee or employer against the harm that the
failure to disclose the information is likely to cause to the
ability of a trade union representative to perform effectively the
functions referred to in section 14(4) or the ability of a
representative trade union to engage effectively in consultation or
collective bargaining.
(12) If the commissioner decides that the balance of harm favours
the disclosure of the information, the commissioner may order the
disclosure of the information on terms designed to limit the harm
likely to be caused to the employee or employer.
(13) When making an order in terms of subsection (I 2), the
commissioner must take into account any breach of confidentiality in
respect of information disclosed in terms of this section at that
workplace and may refuse to order the disclosure of the information
or any other confidential information which might otherwise be
disclosed for a period specified in the arbitration award.
(14) In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information
in that workplace be withdrawn for a period specified in the
arbitration award.
17. Restricted rights in domestic sector
(1) For the purposes of this section, "domestic sector" means the
employment of employees engaged in domestic work in their employers'
homes or on the property on which the home is situated.
(2) The rights conferred on representative trade unions by this Part
in so far as they apply to the domestic sector are subject to the
following limitations-
(a) the right of access to the premises of the employer conferred by
section 12 on an office-bearer or official of a representative trade
union does not include the right to enter the home of the employer,
unless the employer agrees; and
(b) the right to the disclosure of information conferred by section
16 does not apply in the domestic sector.
18. Right to establish thresholds of representativeness
(1) An employer and a registered trade union whose members are a
majority of the employees employed by that employer in a workplace,
or the parties to a bargaining council, may conclude a collective
agreement establishing a threshold of representativeness required in
respect of one or more of the organisational rights referred to in
sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is
not binding unless the thresholds of representativeness in the
collective agreement are applied equally to any registered trade
union seeking any of the organisational rights referred to in that
subsection.
19. Certain organisational rights for trade union party to council
Registered trade unions that are parties to a council automatically
have the rights contemplated in sections 12 and 13 in respect of all
workplaces within the registered scope of the council regardless of
their representativeness in any particular workplace.
20. Organisational rights in collective agreements
Nothing in this Part precludes the conclusion of a collective
agreement that regulates organisational rights.
21. Exercise of rights conferred by this Part 4
(1) Any registered trade union may notify an employer in writing
that it seeks to exercise one or more of the rights conferred by
this Part in a workplace.
(2) The notice referred to in subsection (1) must be accompanied by
a certified copy of the trade unions certificate of registration and
must specify-
(a) the workplace in respect of which the trade union seeks to
exercise the rights;
(b) the representativeness of the trade union in that workplace, and
the facts relied upon to demonstrate that it is a representative
trade union; and
(c) the rights that the trade union seeks to exercise and the manner
in which it seeks to exercise those rights.
(3) Within 30 days of receiving the notice, the employer must meet
the registered trade union and endeavour to conclude a collective
agreement as to the manner in which the trade union will exercise
the rights in respect of that workplace.
(4) If a collective agreement is not concluded, either the
registered trade union or the employer may refer the dispute in
writing to the Commission.
(5) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on the other party to
the dispute.
(6) The Commission must appoint a commissioner to attempt to resolve
the dispute through conciliation.
(7) If the dispute remains unresolved, either party to the dispute
may request that the dispute be resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered
trade union is a representative trade union, the commissioner-
(a) must seek
(i) to minimise the proliferation of trade union representation in a
single workplace and, where possible, to encourage a system of a
representative trade union in a workplace; and
(ii) to minimise the financial and administrative burden of
requiring an employer to grant organisational rights to more than
one registered trade union;
(b) must consider-
(i) the nature of the workplace;
(ii) the nature of the one or more organisational rights that the
registered trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is situated;
and
(iv) the organisational history at the workplace or any other
workplace of the employer; and
(c) may withdraw any of the organisational rights conferred by this
Part and which are exercised by any other registered trade union in
respect of that workplace, if that other trade union has ceased to
be a representative trade union.
(9) In order to determine the membership or support of the
registered trade union, the commissioner may-
(a) make any necessary inquiries;
(b) where appropriate, conduct a ballot of the relevant employees;
and
(c) take into account any other relevant information.
(10) The employer must cooperate with the commissioner when the
commissioner acts in terms of subsection (9), and must make
available to the commissioner any information and facilities that
are reasonably necessary for the purposes of that subsection.
(11) An employer who alleges that a trade union is no longer a
representative trade union may apply to the Commission to withdraw
any of the organisational rights conferred by this Part, in which
case the provisions of subsections (5) to (10) apply, read with the
changes required by the context.
4. See flow diagram No. 2 in Schedule 4.
22. Disputes about organisational rights
(1) Any party to a dispute about the interpretation or application
of any provision of this Part, other than a dispute contemplated in
section 21, may refer the dispute in writing to the Commission.
(2) The party who refers a dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other parties
to the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration as soon as
possible.
Part B: Collective Agreements
23. Legal effect of collective agreement
(1) A collective agreement binds-
(a) the parties to the collective agreement;
(b) each party to the collective agreement and the members of every
other I party to the collective agreement, in so far as the
provisions are applicable between them;
(c) the members of a registered trade union and the employers who
are members of a registered employers' organisation that are party
to the collective agreement if the collective agreement regulates-
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or
the conduct of the employees in relation to their employers;
(d) employees who are not members of the registered trade union or
trade unions party to the agreement if-
(i) the employees are identified in the agreement;
(ii) the agreement expressly binds the employees; and
(iii) that trade union or those trade unions have as their members
the majority of employees employed by the employer in the workplace.
(2) A collective agreement binds for the whole period of the
collective agreement every person bound in terms of subsection
(1)(c) who was a member at the time it became binding, or who
becomes a member after it became binding, whether or not that person
continues to be a member of the registered trade union or registered
employers' organisation for the duration of the collective
agreement.
(3) Where applicable, a collective agreement varies any contract of
employment between an employee and employer who are both bound by
the collective agreement.
(4) Unless the collective agreement provides otherwise, any party to
a collective agreement that is concluded for an indefinite period
may terminate the agreement by giving reasonable notice in writing
to the other parties.
24. Disputes about collective agreements
(1) Every collective agreement, excluding an agency shop agreement
concluded in terms of section 25 or a closed shop agreement
concluded in terms of section 26 or a settlement agreement
contemplated in either section 142A or 158(1)(c), must provide for a
procedure to resolve any dispute about the interpretation or
application of the collective agreement. The procedure must first
require the parties to attempt to resolve the dispute through
conciliation and, if the dispute remains unresolved, to resolve it
through arbitration.
(2) If there is a dispute about the interpretation or application of
a collective agreement, any party to the dispute may refer the
dispute in writing to the Commission if-
(a) the collective agreement does not provide for a procedure as
required by subsection (1);
(b) the procedure provided for in the collective agreement is not
operative; or
(c) any party to the collective agreement has frustrated the
resolution of the dispute in terms of the collective agreement.
(3) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(4) The Commission must attempt to resolve the dispute through
conciliation.
(5) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.5
(6) If there is a dispute about the interpretation or application of
an agency shop agreement concluded in terms of section 25 or a
closed shop agreement concluded in terms of section 26, any party to
the dispute may refer the dispute in writing to the Commission, and
subsections (3) to (5) will apply to that dispute.6
(7) Any person bound by an arbitration award about the
interpretation or application of section 25(3)(c) and (d) or section
26(3)(d) may appeal against that award to the Labour Court.
(8) If there is a dispute about the interpretation or application of
the settlement agreement contemplated in either section 142(A) or
158(1)(c), a party may refer the dispute to a council or the
Commission and subsections (3) to (5), with the necessary changes,
apply to that dispute.
5. See flow diagram No. 3 in Schedule 4.
6. See flow diagram No. 4 in Schedule 4.
25. Agency shop agreements
(1) A representative trade union and an employer or employers'
organisation may conclude a collective agreement, to be known as an
agency shop agreement, requiring the employer to deduct an agreed
agency fee from the wages of employees identified in the agreement
who are not members of the trade union but are eligible for
membership thereof.
(2) For the purposes of this section, "representative trade union"
means a registered trade union, or two or more registered trade
unions acting jointly, whose members are a majority of the employees
employed-
(a) by an employer in a workplace; or
(b) by the members of an employers' organisation in a sector and
area in respect of which the agency shop agreement applies.
(3) An agency shop agreement is binding only if it provides that-
(a) employees who are not members of the representative trade union
are not compelled to become members of that trade union;
(b) the agreed agency fee must be equivalent to, or less than-
(i) the amount of the subscription payable by the members of the
representative trade union;
(ii) if the subscription of the representative trade union is
calculated as a percentage of an employee's salary, that percentage;
or
(iii) if there are two or more registered trade unions party to the
agreement, the highest amount of the subscription that would apply
to an employee;
(c) the amount deducted must be paid into a separate account
administered by the representative trade union; and
(d) no agency fee deducted may be-
(i) paid to a political party as an affiliation fee;
(ii) contributed in cash or kind to a political party or a person
standing for election to any political office; or
(iii) used for any expenditure that does not advance or protect the
socio-economic interests of employees.
(4) (a) Despite the provisions of any law or contract, an employer
may deduct the agreed agency fee from the wages of an employee
without the employee's authorisation.
(b) Despite subsection 3(c) a conscientious objector may request the
employer to pay the amount deducted from that employee's wages into
a fund administered by the Department of Labour.
(5) The provisions of sections 98 and 100(b) and (c) apply, read
with the changes required by the context, to the separate account
referred to in subsection (3)(c).
(6) Any person may inspect the auditor's report, in so far as it
relates to an account referred to in subsection (3)(c), in the
registrar's office.
(7) The registrar must provide a certified copy of, or extract from,
any of the documents referred to in subsection (6) to any person who
has paid the prescribed fees.
(8) An employer or employers' organisation that alleges that a trade
union is no longer a representative trade union in terms of
subsection (1) must give the trade union written notice of the
allegation, and must allow the trade union 90 days from the date of
the notice to establish that it is a representative trade union.
(9) If, within the 90-day period, the trade union fails to establish
that it is a representative trade union, the employer must give the
trade union and the employees covered by the agency shop agreement
30 days' notice of termination, after which the agreement will
terminate.
(10) If an agency shop agreement is terminated, the provisions of
subsection (3)(c) and (d) and (5) apply until the money in the
separate account is spent.
26. Closed shop agreements
(1) A representative trade union and an employer or employers'
organisation may conclude a collective agreement, to be known as a
closed shop agreement, requiring all employees covered by the
agreement to be members of the trade union.
(2) For the purposes of this section, "representative trade union"
means a registered trade union, or two or more registered trade
unions acting Jointly, whose members are a majority of the employees
employed-
(a) by an employer in a workplace; or
(b) by the members of an employers' organisation in a sector and
area in respect of which the closed shop agreement applies.
(3) A closed shop agreement is binding only if-
(a) a ballot has been held of the employees to be covered by the
agreement;
(b) two thirds of the employees who voted have voted in favour of
the agreement;
(c) there is no provision in the agreement requiring membership of
the representative trade union before employment commences; and
(d) it provides that no membership subscription or levy deducted may
be-
(i) paid to a political party as an affiliation fee;
(ii) contributed in cash or kind to a political party or a person
standing for election to any political office; or
(iii) used for any expenditure that does not advance or protect the
socio-economic interests of employees.
(4) Despite subsection (3)(b), a closed shop agreement contemplated
in subsection (2)(b) may be concluded between a registered trade
union and a registered employers' organisation in respect of a
sector and area to become binding in every workplace in which-
(a) a ballot has been held of the employees to be covered by the
agreement; and
(b) two thirds of the employees who voted have voted in favour of
the agreement.
(5) No trade union that is party to a closed shop agreement may
refuse an employee membership or expel an employee from the trade
union unless-
(a) the refusal or expulsion is in accordance with the trade union's
constitution; and
(b) the reason for the refusal or expulsion is fair, including, but
not limited to, conduct that undermines the trade union's collective
exercise of its rights.
(6) It is not unfair to dismiss an employee-
(a) for refusing to join a trade union party to a closed shop
agreement;
(b) who is refused membership of a trade union party to a closed
shop agreement if the refusal is in accordance with the provisions
of subsection (5); or
(c) who is expelled from a trade union party to a closed shop
agreement if the expulsion is in accordance with the provisions of
subsection (5).
(7) Despite subsection (6)-
(a) the employees at the time a closed shop agreement takes effect
may not be dismissed for refusing to Join a trade union party to the
agreement; and
(b) employees may not be dismissed for refusing to join a trade
union party to the agreement on grounds of conscientious objection.
(8) The employees referred to in subsection (7) may be required by
the closed shop agreement to pay an agreed agency fee, in which case
the provisions of section 25(3)(b), (c) and (d) and (4) to (7)
apply.
(9) If the Labour Court decides that a dismissal is unfair because
the refusal of membership of or the expulsion from a trade union
party to a closed shop agreement was unfair, the provisions of
Chapter VIII apply, except that any order of compensation in terms
of that Chapter must be made against the trade union.
(10) A registered trade union that represents a significant interest
in, or a substantial number of, the employees covered by a closed
shop agreement may notify the parties to the agreement of its
intention to apply to become a party to the agreement and, within 30
days of the notice, the employer must convene a meeting of the
parties and the registered trade union in order to consider the
application.
(11) If the parties to a closed shop agreement do not admit the
registered trade union as a party, the trade union may refer the
dispute in writing to the Commission.
(12) The registered trade union must satisfy the Commission that a
copy of the referral has been served on all the parties to the
closed shop agreement.
(13) The Commission must attempt to resolve the dispute through
conciliation.
(14) If the dispute remains unresolved, any party to the dispute may
refer it to the Labour Court for adjudication.
(15) The representative trade union must conduct a ballot of the
employees covered by the closed shop agreement to determine whether
the agreement should be terminated if-
(a) one third of the employees covered by the agreement sign a
petition calling for the termination of the agreement; and
(b) three years have elapsed since the date on which the agreement
commenced or the last ballot was conducted in terms of this section.
(16) If a majority of the employees who voted, have voted to
terminate the closed shop agreement, the agreement will terminate.
(17) Unless a collective agreement provides otherwise, the ballot
referred to in subsections (3)(a) and (15) must be conducted in
accordance with the guidelines published by the Commission.
Part C: Bargaining Councils
27. Establishment of bargaining councils
(1) One or more registered trade unions and one or more registered
employers' organisations may establish a bargaining council for a
sector and area by-
(a) adopting a constitution that meets the requirements of section
30; and
(b) obtaining registration of the bargaining council in terms of
section 29.
(2) The State may be a party to any bargaining council established
in terms of this section if it is an employer in the sector and area
in respect of which the bargaining council is established.
(3) If the State is a party to a bargaining council in terms of
subsection (2), any reference to a registered employers'
organisation includes a reference to the State as a party.
(4) A bargaining council may be established for more than one
sector.
28. Powers and functions of bargaining council
(1) The powers and functions of a bargaining council in relation to
its registered scope include the following-
(a) to conclude collective agreements;
(b) to enforce those collective agreements;
(c) to prevent and resolve labour disputes;
(d) to perform the dispute resolution functions referred to in
section 51;
(e) to establish and administer a fund to be used for resolving
disputes;
(f) to promote and establish training and education schemes;
(g) to establish and administer pension, provident, medical aid,
sick pay, holiday, unemployment and training schemes or funds or any
similar schemes or funds for the benefit of one or more of the
parties to the bargaining council or their members;
(h) to develop proposals for submission to NEDLAC or any other
appropriate forum on policy and legislation that may affect the
sector and area;
(i) to determine by collective agreement the matters which may not
be an issue in dispute for the purposes of a strike or a lock-out at
the workplace; and
(j) to confer on workplace forums additional matters for
consultation;
(k) to provide industrial support services within the sector; and
(l) to extend the services and functions of the bargaining council
to workers in the informal sector and home workers.
(2) From the date on which the Labour Relations Amendment Act, 1998,
comes into operation, the provisions of the laws relating to
pension, provident or medical aid schemes or funds must be complied
with in establishing any pension, provident or medical aid scheme or
fund in terms of subsection (1)(g)
(3) The laws relating to pension, provident or medical aid schemes
or funds will apply in respect of any pension, provident or medical
aid scheme or fund established in terms of subsection (1)(g) after
the coming into operation of the Labour Relations Amendment Act,
1998.
29. Registration of bargaining councils
(1) The parties referred to in section 27 may apply for registration
of a bargaining council by submitting to the registrar-
(a) the prescribed form that has been properly completed;
(b) a copy of its constitution; and
(c) any other information that may assist the registrar to determine
whether or not the bargaining council meets the requirements for
registration.
(2) The registrar may require further information in support of the
application.
(3) As soon as practicable after receiving the application, the
registrar must publish a notice containing the material particulars
of the application in the Government Gazette and send a copy of the
notice to NEDLAC. The notice must inform the general public that
they-
(a) may object to the application on any of the grounds referred to
in subsection (4); and
(b) have 30 days from the date of the notice to serve any objection
on the registrar and a copy on the applicant.
(4) Any person who objects to the application must satisfy the
registrar that a copy of the objection has been served on the
applicant and that the objection is on any of the following grounds-
(a) the applicant has not complied with the provisions of this
section;
(b) the sector and area in respect of which the application is made
is not appropriate;
(c) the applicant is not sufficiently representative in the sector
and area in respect of which the application is made.
(5) The registrar may require further information in support of the
objection.
(6) The applicant may respond to an objection within 14 days of the
expiry of the period referred to in subsection (3)(b), and must
satisfy the registrar that a copy of that response has been served
on the person who objected.
(7) The registrar, as soon as practicable, must send the application
and any objections, responses and further information to NEDLAC to
consider.
(8) NEDLAC, within 90 days of receiving the documents from the
registrar, must-
(a) consider the appropriateness of the sector and area in respect
of which the application is made;
(b) demarcate the appropriate sector and area in respect of which
the bargaining council should be registered; and
(c) report to the registrar in writing.
(9) If NEDLAC fails to agree on a demarcation as required in
subsection (8)(b), the Minister must demarcate the appropriate
sector and area and advise the registrar.
(10) In determining the appropriateness of the sector and area for
the demarcation contemplated in subsection (8)(b), NEDLAC or the
Minister must seek to give effect to the primary objects of this
Act.
(11) The registrar-
(a) must consider the application and any further information
provided by the applicant;
(b) must determine whether-
(i) the applicant has complied with the provisions of this section;
(ii) the constitution of the bargaining council complies with
section 30;
(iii) adequate provision is made in the constitution of the
bargaining council for the representation of small and medium
enterprises;
(iv) the parties to the bargaining council are sufficiently
representative of the sector and area determined by NEDLAC or the
Minister; and
(v) there is no other council registered for the sector and area in
respect of which the application is made; and
(c) if satisfied that the applicant meets the requirements for
registration, must register the bargaining council by entering the
applicant's name in the register of councils.
(12) If the registrar is not satisfied that the applicant meets the
requirements for registration, the registrar-
(a) must send the applicant a written notice of the decision and the
reasons for that decision; and
(b) in that notice, must inform the applicant that it has 30 days
from the date of the notice to meet those requirements.
(13) If, within that 30-day period, the applicant meets those
requirements, the registrar must register the applicant by entering
the applicant's name in the register of councils.
(14) If, after the 30-day period, the registrar concludes that the
applicant has failed to meet the requirements for registration, the
registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person that objected to the
application of that decision in writing.
(15) After registering the applicant, the registrar must-
(a) issue a certificate of registration in the applicant's name that
must specify the registered scope of the applicant; and
(b) send the registration certificate and a certified copy of the
registered constitution to the applicant.
(16) Subsections (3) to (10) and 11(b)(iii) and (iv) do not apply to
the registration or amalgamation of bargaining councils in the
public service.
30. Constitution of bargaining council
(1) The constitution of every bargaining council must at least
provide for-
a) the appointment of representatives of the parties to the
bargaining council, of whom half must be appointed by the trade
unions that are party to the bargaining council and the other half
by the employers' organisations that are party to the bargaining
council, and the appointment of alternates to the representatives;
(b) the representation of small and medium enterprises;
(c) the circumstances and manner in which representatives must
vacate their seats' and the procedure for replacing them;
(d) rules for the convening and conducting of meetings of
representatives, including the quorum required for, and the minutes
to be kept of, those meetings;
(e) the manner in which decisions are to be made; the appointment or
election of office-bearers and officials, their functions, and the
circumstances and manner in which they may be removed from office;
(f) the establishment and functioning of committees;
(g) the determination through arbitration of any dispute arising
between the parties to the bargaining council about the
interpretation or application of the bargaining council's
constitution;
(h) the procedure to be followed if a dispute arises between the
parties to the bargaining council;
(i) the procedure to be followed if a dispute arises between a
registered trade union that is a party to the bargaining council, or
its members, or both, on the one hand, and employers who belong to a
registered employers' organisation that is a party to the bargaining
council, on the other hand;
(j) the procedure for exemption from collective agreements;
(k) the banking and investment of its funds;
(l) the purposes for which its funds may be used;
(m) the delegation of its powers and functions;
(n) the admission of additional registered trade unions and
registered employers' organisations as parties to the bargaining
council, subject to the provisions of section 56;7
(o) a procedure for changing its constitution; and
(p) a procedure by which it may resolve to wind up.
(2) The requirements for the constitution of a bargaining council in
subsection (1) apply to the constitution of a bargaining council in
the public service except that-
(a) any reference to an "employers' organisation" must be read as a
reference to the State as employer; and
(b) the requirement in subsection (1)(b) concerning the
representation of small and medium enterprises does not apply.
(3) The constitution of the Public Service Co-ordinating Bargaining
Council must include a procedure for establishing a bargaining
council in a sector of the public service designated in terms of
section 37(l).
(4) The constitution of a bargaining council in the public service
may include provisions for the establishment and functioning of
chambers of a bargaining council on national and regional levels.
(5) The procedures for the resolution of disputes referred to in
subsection (1)(h), (i) and (j) may not entrust dispute resolution
functions to the Commission unless the governing body of the
Commission has agreed thereto.
7. Section 56 provides for a procedure for the admission of parties
to a council.
31. Binding nature of collective agreement concluded in bargaining
council
Subject to the provisions of section 32 and the constitution of the
bargaining council, a collective agreement concluded in a bargaining
council binds –
(a) the parties to the bargaining council who are also parties to
the collective agreement;
(b) each party to the collective agreement and the members of every
other party to the collective agreement in so far as the provisions
thereof apply to the relationship between such a party and the
members of such other party; and
(c) the members of a registered trade union that is a party to the
collective agreement and the employers who are members of a
registered employers’ organisation that is such a party, if the
collective agreement regulates-
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or
the conduct of the employees in relation to their employers.
32. Extension of collective agreement concluded in bargaining
council
(1) A bargaining council may ask the Minister in writing to extend a
collective agreement concluded in the bargaining council to any
non-parties to the collective agreement that are within its
registered scope and are identified in the request, if at a meeting
of the bargaining council -
(a) one or more registered trade unions whose members constitute the
majority of the members of the trade unions that are party to the
bargaining council vote in favour of the extension; and
(b) one or more registered employers' organisations, whose members
employ the majority of the employees employed by the members of the
employers' organisations that are party to the bargaining council,
vote in favour of the extension.
(2) Within 60 days of receiving the request, the Minister must
extend the collective agreement, as requested, by publishing a
notice in the Government Gazette declaring that, from a specified
date and for a specified period, the collective agreement will be
binding on the non-parties specified in the notice.
(3) A collective agreement may not be extended in terms of
subsection (2) unless the Minister is satisfied that-
(a) the decision by the bargaining council to request the extension
of the collective agreement complies with the provisions of
subsection (1);
(b) the majority of all the employees who, upon extension of the
collective agreement, will fall within the scope of the agreement,
are members of the trade unions that are parties to the bargaining
council;
(c) the members of the employers' organisations that are parties to
the bargaining council will, upon the extension of the collective
agreement, be found to employ the majority of all the employees who
fall within the scope of the collective agreement;
(d) the non-parties specified in the request fall within the
bargaining council's registered scope;
(e) provision is made in the collective agreement for an independent
body to hear and decide, as soon as possible, any appeal brought
against -
(i) the bargaining council’s refusal of a non-party’s application
for exemption from the provisions of the collective agreement;
(ii) the withdrawal of such an exemption by the bargaining council;
(f) the collective agreement contains criteria that must be applied
by the independent body when it considers an appeal, and that those
criteria are fair and promote the primary objects of this Act; and
(g) the terms of the collective agreement do not discriminate
against non-parties.
(4) [Deleted]
(5) Despite subsection (3)(b) and (c), the Minister may extend a
collective agreement in terms of subsection (2) if –
(a) the parties to the bargaining council are sufficiently
representative within the registered scope of the bargaining
council; and
(b) the Minister is satisfied that failure to extend the agreement
may undermine collective bargaining at sectoral level or in the
public service as a whole.
(6) (a) After a notice has been published in terms of subsection
(2), the Minister, at the request of the bargaining council, may
publish a further notice in the Government Gazette
(i) extending the period specified in the earlier notice by a
further period determined by the Minister; or
(ii) if the period specified in the earlier notice has expired,
declaring a new date from which, and a further period during which,
the provisions of the earlier notice will be effective.
(b) The provisions of subsections (3) and (5), read with the changes
required by the context, apply in respect of the publication of any
notice in terms of this subsection.
(7) The Minister, at the request of the bargaining council, must
publish a notice in the Government Gazette cancelling all or part of
any notice published in terms of subsection (2) or (6) from a date
specified in the notice.
(8) Whenever any collective agreement in respect of which a notice
has been published in terms of subsection (2) or (6) is amended,
amplified or replaced by a new collective agreement, the provisions
of this section apply to that new collective agreement.
(9) For the purposes of extending collective agreements concluded in
the Public Service Co-ordinating Bargaining Council or any
bargaining council contemplated in section 37(3) or (4)-
(a) any reference in this section to an employers’ organisation must
be read as a reference to the State as employer; and
(b) subsections (3)(c), (e) and (f) and (4) of this section will not
apply.
(10) If the parties to a collective agreement that has been extended
in terms of this section terminate the agreement, they must notify
the Minister in writing.
33. Appointment and powers of designated agents of bargaining
councils
(1) The Minister may, at the request of a bargaining council,
appoint any person as the designated agent of that bargaining
council to promote, monitor and enforce compliance with any
collective agreement concluded in that bargaining council.
(1A) A designated agent may –
(a) secure compliance with the council’s collective agreements by –
(i) publicising the contents of the agreements;
(ii) conducting inspections;
(iii) investigating complaints; or
(iv) any other means the council may adopt; and
(b) perform any other functions that are conferred or imposed on the
agent by the council.
(2) A bargaining council must provide each designated agent with a
certificate signed by the secretary of the bargaining council
stating that the agent has been appointed in terms of this Act as a
designated agent of that bargaining council.
(3) Within the registered scope of the bargaining council, a
designated agent of the bargaining council has all the powers set
out in Schedule 10.
(4) The bargaining council may cancel the certificate provided to a
designated agent in terms of subsection (2) and the agent then
ceases to be a designated agent of the bargaining council and must
immediately surrender the certificate to the secretary of the
bargaining council.
33A. Enforcement of collective agreements by bargaining councils
(1) Despite any other provision in this Act, a bargaining council
may monitor and enforce compliance with its collective agreements in
terms of this section or a collective agreement concluded by the
parties to the council.
(2) For purposes of this section, a collective agreement is deemed
to include –
(a) any basic condition of employment which in terms of section
49(1) of the Basic Conditions of Employment Act constitutes a term
of employment of any employee covered by the collective agreement;
and
(b) the rules of any fund or scheme established by the bargaining
council.
(3) A collective agreement in terms of this section may authorise a
designated agent appointed in terms of section 33 to issue a
compliance order requiring any person bound by that collective
agreement to comply with the collective agreement within a specified
period.
(4) (a) The council may refer any unresolved dispute concerning
compliance with any provision of a collective agreement to
arbitration by an arbitrator appointed by the council.
(b) If a party to an arbitration in terms of this section, that is
not a party to the council, objects to the appointment of an
arbitrator in terms of paragraph (a), the Commission, on request by
the council, must appoint an arbitrator.
(c) If an arbitrator is appointed in terms of subparagraph (b) –
(i) the Council remains liable for the payment of the arbitrator’s
fee; and
(ii) the arbitration is not conducted under the auspices of the
Commission.
(5) An arbitrator conducting an arbitration in terms of this section
has the powers of a commissioner in terms of section 142, read with
the changes required by the context.
(6) Section 138, read with the changes required by the context,
applies to any arbitration conducted in terms of this section.
(7) An arbitrator acting in terms of this section may determine any
dispute concerning the interpretation or application of a collective
agreement.
(8) An arbitrator conducting an arbitration in terms of this section
may make an appropriate award, including -
(a) ordering any person to pay any amount owing in terms of a
collective agreement;
(b) imposing a fine for a failure to comply with a collective
agreement in accordance with subsection (13);
(c) charging a party an arbitration fee;
(d) ordering a party to pay the costs of the arbitration;
(e) confirming, varying or setting aside a compliance order issued
by a designated agent in accordance with subsection (4)
(f) any award contemplated in section 138(9).
(9) Interest on any amount that a person is obliged to pay in terms
of a collective agreement accrues from the date on which the amount
was due and payable at the rate prescribed in terms of section 1 of
the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975),
unless the arbitration award provides otherwise.
(10) An award in an arbitration conducted in terms of this section
is final and binding and may be enforced in terms of section 143.
(11) Any reference in section 138 or 142 to the director must be
read as a reference to the secretary of the bargaining council.
(12) If an employer, upon whom a fine has been imposed in terms of
this section, files an application to review and set aside an award
made in terms of subsection (8), any obligation to pay a fine is
suspended pending the outcome of the application.
(13) (a) The Minister may, after consulting NEDLAC, publish in the
Government Gazette a notice that sets out the maximum fines that may
be imposed by an arbitrator acing in terms of this section.
(b) A notice in terms of paragraph (a) may specify the maximum fine
that may be imposed –
(i) for a breach of a collective agreement –
(aa) not involving a failure to pay any amount of money;
(ba) involving a failure to pay any amount of money; and
(ii) for repeated breaches of the collective agreement contemplated
in subparagraph (i).
34. Amalgamation of bargaining councils
(1) Any bargaining council may resolve to amalgamate with one or
more other bargaining councils.
(2) The amalgamating bargaining councils may apply to the registrar
for registration of the amalgamated bargaining council and the
registrar must treat the application as an application in terms of
section 29.
(3) If the registrar has registered the amalgamated bargaining
council, the registrar must cancel the registration of each of the
amalgamating bargaining councils by removing their names from the
register of councils.
(4) The registration of an amalgamated bargaining council takes
effect from the date that the registrar enters its name in the
register of councils.
(5) When the registrar has registered an amalgamated bargaining
council-
(a) all the assets, rights, liabilities and obligations of the
amalgamating bargaining councils devolve upon and vest in the
amalgamated bargaining council; and
(b) all the collective agreements of the amalgamating bargaining
councils, regardless of whether or not they were extended in terms
of section 32, remain in force for the duration of those collective
agreements, unless amended or terminated by the amalgamated
bargaining council.
Part D: Bargaining Councils in the Public Service
35. Bargaining councils in public service
There will be a bargaining council for-
(a) the public service as a whole, to be known as the Public Service
Co-ordinating Bargaining Council; and
(b) any sector within the public service that may be designated in
terms of section 37.
36. Public Service Co-ordinating Bargaining Council
(1) The Public Service Co-ordinating Bargaining Council must be
established in accordance with Schedule 1.8
(2) The Public Service Co-ordinating Bargaining Council may perform
all the functions of a bargaining council in respect of those
matters that-
(a) are regulated by uniform rules, norms and standards that apply
across the public service; or
(b) apply to terms and conditions of service that apply to two or
more sectors; or
(c) are assigned to the State as employer in respect of the public
service that are not assigned to the State as employer in any
sector.
8. Schedule 1 deals with the procedure for the establishment of the
Public Service Co-ordinating Bargaining Council.
37. Bargaining councils in sectors in public service
(1) The Public Service Co-ordinating Bargaining Council may, in
terms of its constitution and by resolution -
(a) designate a sector of the public service for the establishment
of a bargaining council; and
(b) vary the designation of, amalgamate or disestablish bargaining
councils so established.
(2) A bargaining council for a sector designated in terms of
subsection (1)(a) must be established in terms of the constitution
of the Public Service Co-ordinating Bargaining Council.
(3) If the parties in the sector cannot agree to a constitution for
the bargaining council for a sector designated in terms of
subsection (1)(a), the Registrar must determine its constitution
(4) The relevant resolution made in terms of subsection (1) must
accompany any application to register or vary the registration of a
bargaining council or to register an amalgamated bargaining council.
(5) A bargaining council established in terms of subsection (2) has
exclusive jurisdiction in respect of matters that are specific to
that sector and in respect of which the State as employer in that
sector has the requisite authority to conclude collective agreements
and resolve labour disputes.
38. Disputes between bargaining councils in public service
(1) If there is a jurisdictional dispute between two or more
bargaining councils in the public service, including the Public
Service Co-ordinating Bargaining Council, any party to the dispute
may refer the dispute in writing to the Commission.
(2) The party who refers the dispute to the Commission must satisfy
the Commission that a copy of the referral has been served on all
other bargaining councils that are parties to the dispute.
(3) The Commission must attempt to resolve the dispute as soon as
possible through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration by the
Commission.
Part E: Statutory Councils
39. Application to establish statutory council
(1) For the purposes of this Part-
(a) "representative trade union" means a registered trade union, or
two or more registered trade unions acting jointly, whose members
constitute at least 30 per cent of the employees in a sector and
area; and
(b) "representative employers' organisation" means a registered
employers' organisation, or two or more registered employers'
organisations acting jointly, whose members employ at least 30 per
cent of the employees in a sector and area.
(2) A representative trade union or representative employers'
organisation may apply to the registrar in the prescribed form for
the establishment of a statutory council in a sector and area in
respect of which no council is registered.
(3) The registrar must apply the provisions of section 29(2) to
(10)9 to the application-
(a) read with the changes required by the context; and
(b) subject to the deletion of the word "sufficiently" in section
29(4)(c).
(4) The registrar must-
(a) consider the application and any further information provided by
the applicant; and
(b) determine whether-
(i) the applicant has complied with section 29 and of this section;
(ii) the applicant is representative of the sector and area
determined by NEDLAC or the Minister; and
(iii) there is no other council registered for the sector and area
in respect of which the application is made.
(5) If the registrar is not satisfied that the applicant meets the
requirements for establishment, the registrar must-
(a) send the applicant a written notice of the decision and the
reasons for that decision; and
(b) in that notice, inform the applicant that it has 30 days from
the date of the notice to meet those requirements.
(6) If, after the 30-day period, the registrar concludes that the
applicant has failed to meet the requirements for establishment, the
registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant and any person that objected to the
application in writing of that decision.
40. Establishment and registration of statutory council
(1) If the registrar is satisfied that the applicant meets the
requirements for the establishment of a statutory council, the
registrar, by notice in the Government Gazette, must establish the
statutory council for a sector and area.
(2) The notice must invite-
(a) registered trade unions and registered employers' organisations
in that sector and area to attend a meeting; and
(b) any interested parties in that sector and area to nominate
representatives for the statutory council.
(3) The Commission must appoint a commissioner to chair the meeting
and facilitate the conclusion of an agreement on-
(a) the registered trade unions and registered employers'
organisations to be parties to the statutory council; and
(b) a constitution that meets the requirements of section 30, read
with the changes required by the context.
(4) If an agreement is concluded, the Minister may advise the
registrar to register the statutory council in accordance with the
agreement if the Minister is satisfied that-
(a) every registered trade union and registered employers'
organisation that ought to have been included has been included in
the agreement; and
(b) the constitution meets the requirements of section 30, read with
the changes required by the context.
(5) In considering the requirements in subsection (4)(a), the
Minister must take into account-
(a) the primary objects of this Act;
(b) the diversity of registered trade unions and registered
employers' organisations in the sector and area; and
(c) the principle of proportional representation.
(6) If the Minister is not satisfied in terms of subsection (4), the
Minister must advise the Commission of the decision and the reasons
for that decision and direct the Commission to reconvene the meeting
in terms of subsection (3) in order to facilitate the conclusion of
a new agreement.
(7) If advised by the Minister in terms of subsection (4), the
registrar must register the statutory council by entering its name
in the register of councils.
9. The provisions of section 29 deal with the procedure for the
registration of a bargaining council.
41. Establishment and registration of statutory council in absence
of agreement
(1) If no agreement is concluded in terms of section 40(3), the
commissioner must convene separate meetings of the registered trade
unions and employers' organisations to facilitate the conclusion of
agreements on-
(a) the registered trade unions to be parties to the statutory
council;
(b) the registered employers' organisations to be parties to the
statutory council; and
(c) the allocation to each party of the number of representatives of
the statutory council.
(2) If an agreement is concluded on-
(a) the registered trade unions to be parties to the statutory
council, the Minister must admit as parties to the statutory council
the agreed registered trade unions;
(b) the registered employers' organisations to be parties to the
statutory council, the Minister must admit as parties to the
statutory council the agreed registered employers' organisations.
(3) If no agreement is concluded on-
(a) the registered trade unions to be parties to the statutory
council, the Minister must admit as parties to the statutory
council-
(i) the applicant, if it is a registered trade union; and
(ii) any other registered trade union in the sector and area that
ought to be admitted, taking into account the factors referred to in
section 40(5);
(b) the registered employers' organisations to be parties to the
statutory council, the Minister must admit as parties to the
statutory council-
(i) the applicant, if it is a registered employers' organisation;
and
(ii) any other registered employers' organisation in the sector and
area that ought to be admitted, taking into account the factors
referred to in section 40(5).
(4) (a) The Minister must determine an even number of
representatives of the statutory council, taking into account the
factors referred to in section 40(5).
(b) One half of the representatives must be allocated to the
registered trade unions that are parties to the statutory council
and the other half of the representatives must be allocated to the
registered employers' organisations that are parties to the
statutory council.
(5) If no agreement is concluded in respect of the allocation of the
number of representatives of the statutory council-
(a) between the registered trade unions that are parties to the
council, the Minister must determine this allocation on the basis of
proportional representation;
(b) between the registered employers' organisations that are parties
to the council, the Minister must determine this allocation on the
basis of proportional representation and taking into account the
interests of small and medium enterprises.
(6) If the applicant is a trade union and there is no registered
employers' organisation that is a party to the statutory council,
the Minister, after consulting the Commission, must appoint suitable
persons as representatives and alternates, taking into account the
nominations received from employers and employers' organisations in
terms of section 40(2).
(7) If the applicant is an employers' organisation and there is no
registered trade union that is a party to the statutory council, the
Minister, after consulting the Commission, must appoint suitable
persons as representatives and alternates, taking into account the
nominations received from employees and trade unions in terms of
section 40(2).
(8) The Minister must notify the registrar of agreements concluded
and decisions made in terms of this section, and the registrar must-
(a) adapt the model constitution referred to in section 207(3) to
the extent necessary to give effect to the agreements and decisions
made in terms of this section;
(b) register the statutory council by entering its name in the
register of councils; and
(c) certify the constitution as the constitution of the statutory
council.
42. Certificate of registration of statutory council
After registering a statutory council, the registrar must -
(a) issue a certificate of registration that must specify the
registered scope of the statutory council; and
(b) send the certificate and a certified copy of the registered
constitution to all the parties to the statutory council and any
representatives appointed to the statutory council.
43. Powers and functions of statutory councils
(1) The powers and functions of a statutory council are-
(a) to perform the dispute resolution functions referred to in
section 51;
(b) to promote and establish training and education schemes; and
(c) to establish and administer pension, provident, medical aid,
sick pay, holiday, unemployment schemes or funds or any similar
schemes or funds for the benefit of one or more of the parties to
the statutory council or their members; and
(d) to conclude collective agreements to give effect to the matters
mentioned in paragraphs (a), (b), and (c).
(2) A statutory council, in terms of its constitution, may agree to
the inclusion of any of the other functions of a bargaining council
referred to in section 28.
(3) If a statutory council concludes a collective agreement in terms
of subsection (1)(d), the provisions of sections 31, 32 and 33
apply, read with the changes required by the context.
(4) (a) From the date on which the Labour Relations Amendment Act,
1998, comes into operation, the provisions of the laws relating to
pension, provident or medical aid schemes or funds must be complied
with in establishing any pension, provident or medical aid scheme or
fund in terms of subsection (1)(c).
(b) The provisions of the laws relating to pension, provident or
medical aid schemes or funds will apply in relation to any pension,
provident or medical aid scheme or fund established in terms of
subsection (1)(c) after the coming into operation of the Labour
Relations Amendment Act, 1998.
44. Ministerial determinations
(1) A statutory council that is not sufficiently representative
within its registered scope may submit a collective agreement on any
of the matters mentioned in section 43(1)(a), (b) or (c) to the
Minister. The Minister must treat the collective agreement as a
recommendation made by the Employment Conditions Commission in terms
of section 54(4) of the Basic Conditions of Employment Act.
(2) The Minister may promulgate the statutory council's
recommendations as a determination under the Basic Conditions of
Employment Act if satisfied that the statutory council has complied
with section 54(3) of the Basic Conditions of Employment Act, read
with the changes required by the context.
(3) The determination must provide for -
(a) exemptions to be considered by an independent body appointed by
the Minister; and
(b) criteria for exemption that are fair and promote the primary
objects of this Act.
(4) The Minister may in a determination impose a levy on all
employers and employees in the registered scope of the statutory
council to defray the operational costs of the statutory council.
(5) A statutory council may submit a proposal to the Minister to
amend or extend the period of any determination and the Minister may
make the amendment to the determination or extend the period by
notice in the Government Gazette.
45. Disputes about determinations
(1) If there is a dispute about the interpretation or application of
a determination promulgated in terms of section 44(2), any party to
the dispute may refer the dispute in writing to the Commission.
(2) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
46. Withdrawal of party from statutory council
(1) If a registered trade union or registered employers'
organisation that is a party to a statutory council withdraws from
that statutory council, the Minister may request the Commission to
convene a meeting of the remaining registered trade unions or
registered employers' organisations in the sector and area, in order
to facilitate the conclusion of an agreement on the registered trade
unions or the registered employers' organisations to be parties and
the allocation of representatives to the statutory council.
(2) If no agreement is concluded, the provisions of section 41
apply, read with the changes required by the context.
47. Appointment of new representative of statutory council
(1) If a representative appointed in terms of section 41(6) or (7)
for any reason no longer holds office, the Minister must publish a
notice in the Government Gazette inviting interested parties within
the registered scope of the statutory council to nominate a new
representative.
(2) The provisions of section 41(6) or (7) apply, read with the
changes required by the context, in respect of the appointment of a
new representative.
48. Change of status of statutory council
(1) A statutory council may resolve to apply to register as a
bargaining council.
(2) The registrar must deal with the application as if it were an
application in terms of section 29,10 except for section 29(4)(b),
(7) to (10) and (15).
(3) If the registrar has registered the statutory council as a
bargaining council, the registrar must alter the register of
councils and its certificate to reflect its change of status.
(4) Any determination in force at the time of the registration of
the bargaining council or any agreement extended by the Minister in
terms of section 43(3)-
(a) continues to have force for the period of its operation unless
superseded by a collective agreement; and
(b) may be extended for a further period.
(5) The bargaining council must perform any function or duty of the
statutory council in terms of a determination during the period in
which the determination is still in effect.
(6) If any dispute in terms of a determination is unresolved at the
time the determination ceases to have effect, the dispute must be
dealt with as if the determination was still in effect.
10. Section 29 deals with the procedure for the registration of
bargaining councils.
Part F: General Provisions Concerning Councils
49. Representativeness of council
(1) When considering the representativeness of the parties to a
council, or parties seeking registration of a council, the
registrar, having regard to the nature of the sector and the
situation of the area in respect of which registration is sought,
may regard the parties to a council as representative in respect of
the whole area, even if a trade union or employers' organisation
that is a party to the council has no members in part of that area.
(2) A bargaining council, having a collective agreement that has
been extended by the Minister in terms of section 32, must inform
the registrar annually, in writing, on a date to be determined by
the registrar, as to the number of employees who are –
(a) covered by the collective agreement;
(b) members of the trade unions that are parties to the agreement;
(c) employed by members of the employers’ organisations that are
party to the agreement.
(3) A bargaining council must, on request by the registrar, inform
the registrar in writing within the period specified in the request
as to the number of employees who are -
(a) employed within the registered scope of the council;
(b) members of the trade unions that are parties to the council;
(c) employed by members of the employers’ organisations that are
party to the council.
(4) A determination of the representativeness of a bargaining
council in terms of this section is sufficient proof of the
representativeness of the council for the year following the
determination.
(5) This section does not apply to the public service.
50. Effect of registration of council
(1) A certificate of registration is sufficient proof that a
registered council is a body corporate.
(2) A council has all the powers, functions and duties that are
conferred or imposed on it by or in terms of this Act, and it has
jurisdiction to exercise and perform those powers, functions and
duties within its registered scope.
(3) A party to a council is not liable for any of the obligations or
liabilities of the council by virtue of it being a party to the
council.
(4) A party to, or office-bearer or official of, a council is not
personally liable for any loss suffered by any person as a result of
an act performed or omitted in good faith by a party to, or
office-bearer or official of, a council while performing their
functions for the council.
(5) Service of any document directed to a council at the address
most recently provided to the registrar will be for all purposes
service of that document on that council.
51. Dispute resolution functions of council
(1) In this section, dispute means any dispute about a matter of
mutual interest between-
(a) on the one side –
(i) one or more trade unions;
(ii) one or more employees; or
(iii) one or more trade unions and one or more employees; and
(b) on the other side-
(i) one or more employers' organisations;
(ii) one or more employers; or
(iii) one or more employers' organisations and one or more
employers.
(2) (a)(i) The parties to a council must attempt to resolve any
dispute between themselves in accordance with the constitution of
the council.
(i) For the purposes of subparagraph (i), a party to a council
includes the members of any registered trade union or registered
employers’ organisation that is a party to the council.
(b) Any party to a dispute who is not a party to a council but who
falls within the registered scope of the council may refer the
dispute to the council in writing.
(c) The party who refers the dispute to the council must satisfy it
that a copy of the referral has been served on all the other parties
to the dispute.
(3) If a dispute is referred to a council in terms of this Act11 and
any party to that dispute is not a party to that council, the
council must attempt to resolve the dispute -
(a) through conciliation; and
(b) if the dispute remains unresolved after conciliation, the
council must arbitrate the dispute if-
(i) this Act requires arbitration and any party to the dispute has
requested that it be resolved through arbitration; or
(ii) all the parties to the dispute consent to arbitration under the
auspices of the council.
(4) If one or more of the parties to a dispute that has been
referred to the council do not fall within the registered scope of
that council, it must refer the dispute to the Commission.
(5) The date on which the referral in terms of subsection (4) was
received by a council is, for all purposes, the date on which the
council referred the dispute to the Commission.
(6) A council may enter into an agreement with the Commission or an
accredited agency in terms of which the Commission or accredited
agency is to perform, on behalf of the council, its dispute
resolution functions in terms of this section.
(7) Subject to this Act, a council may not provide in a collective
agreement for the referral of disputes to the Commission, without
prior consultation with the director.
(8) Unless otherwise agreed to in a collective agreement, sections
142A and 143 to 146 apply to any arbitration conducted under the
auspices of a bargaining council.
(9) A bargaining council may, by collective agreement, establish
procedures to resolve any dispute contemplated in this section.
11. The following disputes contemplated by subsection (3) must be
referred to a council: disputes about the interpretation or
application of the provisions of Chapter II (see section 9);
disputes that form the subject matter of a proposed strike or lock
out (see section 64(1)); disputes in essential services (see section
74); disputes about unfair dismissals (see section 191); disputes
about severance pay (see section 196); and disputes about unfair
labour practices (see item 2 in Schedule 7).
The following disputes contemplated by subsection (3) may not be
referred to a council: disputes about organisational rights (see
sections 16, 21 and 22); disputes about collective agreements where
the agreement does not provide for a procedure or the procedure is
inoperative or any party frustrates the resolution of the dispute
(see section 24(2) to (5); disputes about agency shops and closed
shops (see section 24(6) and (7) and section 26(11); disputes about
determinations made by the Minister in respect of proposals made by
a statutory council (see section 45); disputes about the
interpretation or application of collective agreements of a council
whose registration has been cancelled (see section 61 (5) to (8));
disputes about the demarcation of sectors and areas of councils (see
section 62); disputes about the interpretation or application of
Part C (bargaining councils), Part D (bargaining councils in the
public service), Part E (statutory councils) and Part F (general
provisions concerning councils) (see section 63); disputes
concerning pickets (see section 69 (8) to (10)); disputes about
proposals that are the subject of joint decision-making in workplace
forums (see section 86); disputes about the disclosure of
information to workplace forums (see section 89); and disputes about
the interpretation or application of the provisions of Chapter V
which deals with workplace forums (see section 94).
52. Accreditation of council or appointment of accredited agency
(1) With a view to performing its dispute resolution functions in
terms of section 51(3), every council must –
(a) apply to the governing body of the Commission for accreditation
to perform those functions; or
(b) appoint an accredited agency to perform those of the functions
referred to in section 51(3) for which the council is not
accredited.
(2) The council must advise the Commission in writing as soon as
possible of the appointment of an accredited agency in terms of
subsection (1)(b), and the terms of that appointment.
53. Accounting records and audits
(1) Every council must, to the standards of generally accepted
accounting practice, principles and procedures (a) keep books and
records of its income, expenditure, assets and liabilities; and
(b) within six months after the end of each financial year, prepare
financial statements, including at least-
(i) a statement of income and expenditure for the previous financial
year; and
(ii) balance sheet showing its assets, liabilities and financial
position as at the end of the previous financial year.
(2) Each council must arrange for an annual audit of its books and
records of account and its financial statements by an auditor who
must-
(a) conduct the audit in accordance with generally accepted auditing
standards; and
(b) report in writing to the council and in that report express an
opinion as to whether or not the council has complied with those
provisions of its constitution relating to financial matters.
(3) Every council must-
(a) make the financial statements and the auditor's report available
to the parties to the council or their representatives for
inspection; and
(b) submit those statements and the auditor's report to a meeting of
the council as provided for in its constitution.
(4) Every council must preserve each of its books of account,
supporting vouchers, income and expenditure statements, balance
sheets, and auditor's reports, in an original or reproduced form,
for a period of three years from the end of the financial year to
which they relate.
(5) The money of a council or of any fund established by a council
that is surplus to its requirements or the expenses of the fund may
be invested only in-
(a) savings accounts, permanent shares or fixed deposits in any
registered bank or financial institution;
(b) internal registered stock as contemplated in section 21 of the
Exchequer Act, 1975 (Act No. 66 of 1975);
(c) a registered unit trust; or
(d) any other manner approved by the registrar.
(6) A council must comply with subsections (1) to (5) in respect of
all funds established by it, except funds referred to in section
28(3).
54. Duty to keep records and provide information to registrar
(1) In addition to the records required by section 53(4), every
council must keep minutes of its meetings, in an original or
reproduced form, for a period of three years from the end of the
financial year to which they relate.
(2) Every council must provide to the registrar-
(a) within 30 days of receipt of its auditor's report, a certified
copy of that report and of the financial statements;
(b) within 30 days of receipt of a written request by the registrar,
an explanation of anything relating to the auditor's report or the
financial statements;
(c) upon registration, an address within the Republic at which it
will accept service of any document that is directed to it;
(d) within 30 days of any appointment or election of its national
office bearers, the names and work addresses of those
office-bearers, even if their appointment or election did not result
in any changes to its office-bearers;
(e) 30 days before a new address for service of documents will take
effect, notice of that change of address; and
(f) each year and on a date to be determined by the registrar, a
report in the prescribed form specifying -
(i) the number of employees who are employed by small enterprises
that fall within the registered scope of the council and the number
of employees of those enterprises who are members of trade unions;
(iii) the number of employees employed by small enterprises that are
covered by a collective agreement that was concluded by the council
and extended by the \minister in terms of section 2;
(iv) the number of small enterprises that are members of the
employers’ organisations that are parties to the council; and
(v) the number of applications for exemptions received from small
enterprises and the number of applications that were granted and the
number rejected.
(3) Every council must provide to the Commission-
(a) certified copies of every collective agreement concluded by the
parties to the council, within 30 days of the signing of that
collective agreement; and
(b) the details of the admission and resignation of parties to the
council, within 30 days of their admission or resignation.
(4) If a council fails to comply with any of the provisions of
section 49(2) or (3), section 53 or subsections (1) or (2) of this
section, the registrar may -
(a) conduct an inquiry into the affairs of that council;
(b) order the production of the council’s financial records and any
other relevant documents;
(c) deliver a notice to the council requiring the council to comply
with the provisions concerned;
(d) compile a report o the affairs of the council; or
(e) submit the report to the Labour Court in support of any
application made in terms of section 59(1)(b).
(5) The registrar may use the powers referred to in subsection (4)
in respect of any fund established by a council, except a fund
referred to in section 28(3).
55. Delegation of functions to committee of council
(1) A council may delegate any of its powers and functions to a
committee on any conditions, imposed by the council in accordance
with its constitution.
(2) A committee contemplated by subsection (1) must consist of equal
numbers of representatives of employees and employers.
56. Admission of parties to council 12
(1) Any registered trade union or registered employers' organisation
may apply in writing to a council for admission as a party to that
council.
(2) The application must be accompanied by a certified copy of the
applicant's registered constitution and certificate of registration
and must include-
(a) details of the applicant's membership within the registered
scope of the council and, if the applicant is a registered
employers' organisation, the number of employees that its members
employ within that registered scope;
(b) the reasons why the applicant ought to be admitted as a party to
the council; and
(c) any other information on which the applicant relies in support
of the application.
(3) A council, within 90 days of receiving an application for
admission, must decide whether to grant or refuse an applicant
admission, and must advise the applicant of its decision, failing
which the council is deemed to have refused the applicant admission.
(4) If the council refuses to admit an applicant it must within 30
days of the date of the refusal, advise the applicant in writing of
its decision and the reasons for that decision.
(5) The applicant may apply to the Labour Court for an order
admitting it as a party to the council.
(6) The Labour Court may admit the applicant as a party to the
council, adapt the constitution of the council and make any other
appropriate order.
12. See flow diagram No. 5 in Schedule 4.
57. Changing constitution or name of council
(1) Any council may resolve to change or replace its constitution.
(2) The council must send the registrar a copy of the resolution and
a certificate signed by its secretary stating that the resolution
complies with its constitution.
(3) The registrar must-
(a) register the changed or new constitution of a council if it
meets the requirements of section 30 or if it is a statutory council
established in terms of section 41 if it meets the requirements of
the model constitution referred to in section 207(3); and
(b) send the council a copy of the resolution endorsed by the
registrar, certifying that the change or replacement has been
registered.
(4) The changed or new constitution takes effect from the date of
the registrar's certification.
(5) Any council may resolve to change its name.
(6) The council must send the registrar a copy of the resolution and
the original of its current certificate of registration.
(7) The registrar must-
(a) enter the new name in the register of councils, and issue a
certificate of registration in the new name of the council;
(b) remove the old name from that register and cancel the earlier
certificate of registration; and
(c) send the new certificate to the council.
(8) The new name takes effect from the date that the registrar
enters it in the register of councils.
58. Variation of registered scope of council
(1) If the registrar is satisfied that the sector and area within
which a council is representative does not coincide with the
registered scope of the council, the registrar, acting independently
or in response to an application from the council, may vary the
registered scope of the council.
(2) The provisions of section 29 apply, read with the changes
required by the context, to a variation in terms of this section.
(3) Despite subsection (2), if within the stipulated period no
material objection is lodged to any notice published by the
registrar in terms of section 29(3), the registrar -
(i) may vary the registered scope of the council;
(ii) may issue a certificate specifying the scope of the council as
varied; and
(iii) need not comply with the procedure prescribed by section 29.
59. Winding-up of council
(1) The Labour Court may order a council to be wound up if-
(a) the council has resolved to wind up its affairs and has applied
to the Court for an order giving effect to that resolution; or
(b) the registrar of labour relations or any party to the council
has applied to the Court and the Court is satisfied that the council
is unable to continue to function for any reason that cannot be
remedied.
(2) If there are any persons not represented before the Labour Court
whose interests may be affected by an order in terms of subsection
(1), the Court must-
(a) consider those interests before deciding whether or not to grant
the order; and
(b) if it grants the order, include provisions in the order
disposing of each of those interests.
(3) If it makes an order in terms of subsection (1), the Labour
Court may appoint a suitable person as liquidator, on appropriate
conditions.
(4) (a) The registrar of the Labour Court must determine the
liquidator's fees.
(b) The Labour Court, in chambers, may review the determination of
the registrar of the Labour Court.
(c) The liquidator's fees are a first charge against the assets of
the council.
(2) If, after all the liabilities of the council have been
discharged, any assets remain that cannot be disposed of in
accordance with the constitution of that council, the liquidator
must realise those assets and pay the proceeds to the Commission for
its own use.
(3) For the purposes of this section, the assets and liabilities of
any pension, provident or medical aid scheme or fund established by
a council will be regarded and treated as part of the assets and
liabilities of the council unless –
(a) the parties to the council have agreed to continue with the
operation of the pension, provident or medical aid scheme or fund as
a separate scheme or fund despite the winding up of the council; and
(b) the Minister has approved the continuation of the scheme or
fund; and
(c) application has been made in accordance with the provisions of
the laws applicable to pension, provident or medical aid schemes or
funds, for the registration of that scheme or fund in terms of those
provisions.
(2A) A pension, provident or medical aid scheme or fund, registered
under the provisions of those laws after its application in terms of
subsection 6(c), will continue to be a separate scheme or fund
despite the winding up of the council by which it was established.
(3A) The Minister, by notice in the Government Gazette, may declare
the rules of a pension, provident or medical aid scheme or fund
mentioned in subsection (7) to be binding on any employees and
employer or employers that fell within the registered scope of the
relevant council immediately before it was wound up.
60. Winding-up of council by reason of insolvency
Any person who seeks to wind-up a council by reason of insolvency
must comply with the Insolvency Act, 1936 (Act No. 24 of 1936), and,
for the purposes of this section, any reference to the court in that
Act must be interpreted as referring to the Labour Court.
61. Cancellation of registration of council
(1) The registrar of the Labour Court must notify the registrar of
labour relations if the Court has ordered a council to be wound up.
(2) When the registrar receives a notice from the Labour Court in
terms of subsection (1), the registrar must cancel the registration
of the council by removing its name from the register of councils.
(3) The registrar may notify a council and every party to the
council that the registrar is considering cancelling the council's
registration, if the registrar believes that-
(a) the council has ceased to perform its functions in terms of this
Act for a period longer than 90 days before the date of the notice;
or
(b) the council has ceased to be representative in terms of the
provisions of the relevant Part, for a period longer than 90 days
prior to the date of the notice.
(4) In a notice in terms of subsection (3), the registrar must state
the reasons for the notice and inform the council and every party to
the council that they have 60 days to show cause why the council's
registration should not be cancelled.
(5) After the expiry of the 60-day period, the registrar, unless
cause has been shown why the council's registration should not be
cancelled, must notify the council and every party to the council
that the registration will be cancelled unless an appeal to the
Labour Court is noted and the Court reverses the decision.
(6) The cancellation takes effect-
(a) if no appeal to the Labour Court is noted within the time
contemplated in section III (3), on the expiry of that period; or
(b) if the council or any party has appealed and the Labour Court
has confirmed the decision of the registrar, on the date of the
Labour Court's decision.
(7) If either event contemplated in subsection (6) occurs, the
registrar must cancel the council’s registration by removing the
name of the council from the register of councils.
(8) Any collective agreement concluded by parties to a council whose
registration has been cancelled, whether or not the collective
agreement has been extended to non-parties by the Minister in terms
of section 32, lapses 60 days after the council's registration has
been cancelled.
(9) Despite subsection (8), the provisions of a collective agreement
that regulates terms and conditions of employment remain in force
for one year after the date that the council’s registration was
cancelled, or until the expiry of the agreement, if earlier.
(10) Any party to a dispute about the interpretation or application
of a collective agreement that regulates terms and conditions of
employment referred to in subsection (8) may refer the dispute in
writing to the Commission.
(11) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(12) The Commission must attempt to resolve the dispute through
conciliation.
(13) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(14) The registrar must cancel the registration of a bargaining
council in the public service by removing its name from the register
of councils when the registrar receives a resolution from the Public
Service Co-ordinating Bargaining Council disestablishing a
bargaining council established in terms of section 37(2).
(15) The provisions of subsections (3) to (7) do not apply to
bargaining councils in the public service.
62. Disputes about demarcation between sectors and areas
(1) Any registered trade union, employer, employee, registered
employers' organisation or council that has a direct or indirect
interest in the application contemplated in this section may apply
to the Commission in the prescribed form and manner for a
determination as to-
(a) whether any employee, employer, class of employees or class of
employers, is or was employed or engaged in a sector or area;
(b) whether any provision in any arbitration award, collective
agreement or wage determination made in terms of the Wage Act is or
was binding on any employee, employer, class of employees or class
of employers.
(2) If two or more councils settle a dispute about a question
contemplated in subsection (1)(a) or (b), the councils must inform
the Minister of the provisions of their agreement and the Minister
may publish a notice in the Government Gazette stating the
particulars of the agreement.
(3) In any proceedings in terms of this Act before the Labour Court,
if a question contemplated in subsection (1)(a) or (b) is raised,
the Labour Court must adjourn those proceedings and refer the
question to the Commission for determination if the Court is
satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in terms of
this section; and
(ii) is not the subject of an agreement in terms of subsection (2);
and
(b) the determination of the question raised is necessary for the
purposes of the proceedings.
(3A) In any proceedings before an arbitrator about the
interpretation or application of a collective agreement, if a
question contemplated in subsection (1)(a) or (b) is raised, the
arbitrator must adjourn those proceedings and refer the question to
the Commission if the arbitrator is satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in terms of
this section; and
(ii) is not the subject of an agreement in terms of subsection (2);
and
(b) the determination of the question raised is necessary of the
purposes of the proceedings.
(4) When the Commission receives an application in terms of
subsection (1) or a referral in terms of subsection (3), it must
appoint a commissioner to hear the application or determine the
question, and the provisions of section 138 apply, read with the
changes required by the context.
(5) In any proceedings in terms of this Act before a commissioner,
if a question contemplated in subsection (1)(a) or (b) is raised,
the commissioner must adjourn the proceedings and consult the
director, if the commissioner is satisfied that-
(a) the question raised-
(i) has not previously been determined by arbitration in terms of
this section; and
(ii) is not the subject of an agreement in terms of subsection (2);
and
(b) the determination of the question raised is necessary for the
purposes of the proceedings.
(6) The director must either order the commissioner concerned to
determine the question or appoint another commissioner to do so, and
the provisions of section 138 apply, read with the changes required
by the context.
(7) If the Commission believes that the question is of substantial
importance, the Commission must publish a notice in the Government
Gazette stating the particulars of the application or referral and
stating the period within which written representations may be made
and the address to which they must be directed.
(8) If a notice contemplated in subsection (7) has been published,
the commissioner may not commence the arbitration until the period
stated in the notice has expired.
(9) Before making an award, the commissioner must consider any
written representations that are made, and must consult NEDLAC.
(10) The commissioner must send the award, together with brief
reasons, to the Labour Court and to the Commission.
(11) If the Commission believes that the nature of the award is
substantially important, it may publish notice of the award in the
Government Gazette.
(12) The registrar must amend the certificate of registration of a
council in so far as is necessary in light of the award.
63. Disputes about Parts A and C to F
(1) Any party to a dispute about the interpretation or application
of Parts A and C to F of this Chapter, may refer the dispute in
writing to the Commission unless-
(a) the dispute has arisen in the course of arbitration proceedings
or proceedings in the Labour Court; or
(b) the dispute is otherwise to be dealt with in terms of Parts A
and C to F.
(2) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
refer it to the Labour Court for adjudication.
CHAPTER IV
STRIKES AND LOCK OUTS
64. Right to strike and recourse to lock out
(1) Every employee has the right to strike and every employer has
recourse to lock out if-
(a) the issue in dispute has been referred to a council or to the
Commission as required by this Act, and-
(i) a certificate stating that the dispute remains unresolved has
been issued; or
(ii) a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral
was received by the council or the Commission; and after that-
(b) in the case of a proposed strike, at least 48 hours' notice of
the commencement of the strike, in writing, has been given to the
employer, unless-
(i) the issue in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been given
to that council; or
(ii) the employer is a member of an employers' organisation that is
a party to the dispute, in which case, notice must have been given
to that employers' organisation; or
(c) in the case of a proposed lock-out, at least 48 hours' notice of
the commencement of the lock-out, in writing, has been given to any
trade union that is a party to the dispute, or, if there is no such
trade union, to the employees, unless the issue in dispute relates
to a collective agreement to be concluded in a council, in which
case, notice must have been given to that council; or
(d) the case of a proposed strike or lock-out where the State is the
employer, at least seven days' notice of the commencement of the
strike or lock-out has been given to the parties contemplated in
paragraphs (b) and (c).
(2) If the issue in dispute concerns a refusal to bargain, an
advisory award must have been made in terms of section 135(3)(c)
before notice is given in terms of subsection (1)(b) or (c). A
refusal to bargain includes-
(a) a refusal-
(i) to recognise a trade union as a collective bargaining agent; or
(ii) to agree to establish a bargaining council;
(b) a withdrawal of recognition of a collective bargaining agent;
(c) a resignation of a party from a bargaining council;
(d) a dispute about-
(i) appropriate bargaining units;
(ii) appropriate bargaining levels; or
(iii) bargaining subjects.
(3) The requirements of subsection (1) do not apply to a strike or a
lock-out if-
(a) the parties to the dispute are members of a council, and the
dispute has been dealt with by that council in accordance with its
constitution;
(b) the strike or lock-out conforms with the procedures in a
collective agreement;
(c) the employees strike in response to a lock-out by their employer
that does not comply with the provisions of this Chapter;
(d) the employer locks out its employees in response to their taking
part in a strike that does not conform with the provisions of this
Chapter; or
(e) the employer fails to comply with the requirements of
subsections (4) and (5).
(4) Any employee who or any trade union that refers a dispute about
a unilateral change to terms and conditions of employment to a
council or the Commission in terms of subsection (1)(a) may, in the
referral, and for the period referred to in subsection (1)(a)-
(a) require the employer not to implement unilaterally the change to
terms and conditions of employment; or
(b) if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of
employment that applied before the change.
(5) The employer must comply with a requirement in terms of
subsection (4) within 48 hours of service of the referral on the
employer.
65. Limitations on right to strike or recourse to lock-out
(1) No person may take part in a strike or a lock-out or in any
conduct in contemplation or furtherance of a strike or a lock-out
if-
(a) that person is bound by a collective agreement that prohibits a
strike or lock-out in respect of the issue in dispute;
(b) that person is bound by an agreement that requires the issue in
dispute to be referred to arbitration;
(c) the issue in dispute is one that a party has the right to refer
to arbitration or to the Labour Court in terms of this Act;
(d) that person is engaged in-
(i) an essential service; or
(ii) a maintenance service. 13
(2) (a) Despite section 65(l)(c), a person may take part in a strike
or a lock-out or in any conduct in contemplation or in furtherance
of a strike or lock out if the issue in dispute is about any matter
dealt with in sections 12 to 15. 14
(b) If the registered trade union has given notice of the proposed
strike in terms of section 64(l) in respect of an issue in dispute
referred to in paragraph (a), it may not exercise the right to refer
the dispute to arbitration in terms of section 21 for a period of 12
months from the date of the notice.
(3) Subject to a collective agreement, no person may take part in a
strike or a lock-out or in any conduct in contemplation or
furtherance of a strike or lock-out-
(a) if that person is bound by-
(i) any arbitration award or collective agreement that regulates the
issue in dispute; or
(ii) any determination made in terms of section 44 by the Minister
that regulates the issue in dispute; or
(b) any determination made in terms of the Wage Act and that
regulates the issue in dispute, during the first year of that
determination.
13. Essential services, agreed minimum services and maintenance
services are regulated in sections 71 to 75.
14. These sections deal with organisational rights.
66. Secondary strikes
(1) In this section "secondary strike" means a strike, or conduct in
contemplation or furtherance of a strike, that is in support of a
strike by other employees against their employer but does not
include a strike in pursuit of a demand that has been referred to a
council if the striking employees, employed within the registered
scope of that council, have a material interest in that demand.
(2) No person may take part in a secondary strike unless-
(a) the strike that is to be supported complies with the provisions
of sections 64 and 65;
(b) the employer of the employees taking part in the secondary
strike or, where appropriate, the employers' organisation of which
that employer is a member, has received written notice of the
proposed secondary strike at least seven days prior to its
commencement; and
(c) the nature and extent of the secondary strike is reasonable in
relation to the possible direct or indirect effect that the
secondary strike may have on the business of the primary employer.
(3) Subject to section 68(2) and (3), a secondary employer may apply
to the Labour Court for an interdict to prohibit or limit a
secondary strike that contravenes subsection (2).
(4) Any person who is a party to proceedings in terms of subsection
(3), or the Labour Court, may request the Commission to conduct an
urgent investigation to assist the Court to determine whether the
requirements of subsection (2)(c) have been met.
(5) On receipt of a request made in terms of subsection (4), the
Commission must appoint a suitably qualified person to conduct the
investigation, and then submit, as soon as possible, a report to the
Labour Court.
(6) The Labour Court must take account of the Commission's report in
terms of subsection (5) before making an order.
67. Strike or lock-out in compliance with this Act
(1) In this Chapter, "protected strike" means a strike that complies
with the provisions of this Chapter and "protected lock-out" means a
lock-out that complies with the provisions of this Chapter.
(2) A person does not commit a defect or a breach of contract by
taking part in-
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected
strike or a protected lock-out.
(3) Despite subsection (2), an employer is not obliged to remunerate
an employee for services that the employee does not render during a
protected strike or a protected lock-out, however-
(a) if the employee's remuneration includes payment in kind in
respect of accommodation, the provision of food and other basic
amenities of life, the employer, at the request of the employee,
must not discontinue payment in kind during the strike or lock-out;
and
(b) after the end of the strike or lock-out, the employer may
recover the monetary value of the payment in kind made at the
request of the employee during the strike or lock-out from the
employee by way of civil proceedings instituted in the Labour Court.
(4) An employer may not dismiss an employee for participating in a
protected strike or for any conduct in contemplation or in
furtherance of a protected strike.
(5) Subsection (4) does not preclude an employer from fairly
dismissing an employee in accordance with the provisions of Chapter
VIII for a reason related to the employee's conduct during the
strike, or for a reason based on the employer's operational
requirements.
(6) Civil legal proceedings may not be instituted against any person
for-
(a) participating in a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected
strike or a protected lock-out.
(7) The failure by a registered trade union or a registered
employers' organisation to comply with a provision in its
constitution requiring it to conduct a ballot of those of its
members in respect of whom it intends to call a strike or lock-out
may not give rise to, or constitute a ground for, any litigation
that will affect the legality of, and the protection conferred by
this section on, the strike or lock-out.
(8) The provisions of subsections (2) and (6) do not apply to any
act in contemplation or in furtherance of a strike or a lock-out, if
that act is an offence.
(9) Any act in contemplation or in furtherance of a protected strike
or a protected lock-out that is a contravention of the Basic
Conditions of Employment Act or the Wage Act does not constitute an
offence.
68. Strike or lock-out not in compliance with this Act
(1) In the case of any strike or lock-out, or any conduct in
contemplation or in furtherance of a strike or lock-out, that does
not comply with the provisions of this Chapter, the Labour Court has
exclusive jurisdiction-
(a) to grant an interdict or order to restrain-15
(i) any person from participating in a strike or any conduct in
contemplation or in furtherance of a strike; or
(ii) any person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any
loss attributable to the strike or lock-out, or conduct, having
regard to-
(i) whether -
1. attempts were made to comply with the provisions of this Chapter
and the extent of those attempts;
2. the strike or lock-out or conduct was premeditated;
3. the strike or lock out, or conduct was in response to unjustified
conduct by another party to the dispute; and
4. there was compliance with an order granted in terms of paragraph
(a);
(ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock out or conduct; and
(iv) the financial position of the employer, trade union or
employees respectively.
(2) The Labour Court may not grant any order in terms of subsection
(1)(a) unless 48 hours' notice of the application has been given to
the respondent: However, the Court may permit a shorter period of
notice if-
(a) the applicant has given written notice to the respondent of the
applicant's intention to apply for the granting of an order;
(b) the respondent has been given a reasonable opportunity to be
heard before a decision concerning that application is taken; and
(c) the applicant has shown good cause why a period shorter than 48
hours should be permitted.
(3) Despite subsection (2), if written notice of the commencement of
the proposed strike or lock-out was given to the applicant at least
10 days before the commencement of the proposed strike or lock-out,
the applicant must give at least five days' notice to the respondent
of an application for an order in terms of subsection (1)(a).
(4) Subsections (2) and (3) do not apply to an employer or an
employee engaged in an essential service or a maintenance service.
(5) Participation in a strike that does not comply with the
provisions of this Chapter, or conduct in contemplation or in
furtherance of that strike, may constitute a fair reason for
dismissal. In determining whether or not the dismissal is fair, the
Code of Good Practice: Dismissal in Schedule 8 must be taken into
account.
15. See flow diagram No. 6 in Schedule 4.
69. Picketing 16
(1) A registered trade union may authorise a picket by its members
and supporters for the purposes of peacefully demonstrating-
(a) in support of any protected strike; or
(b) in opposition to any lockout.
(2) Despite any law regulating the right of assembly, a picket
authorised in terms of subsection (1), may be held-
(a) in any place to which the public has access but outside the
premises of an employer; or
(b) with the permission of the employer, inside the employer's
premises.
(3) The permission referred to in subsection (2)(b) may not be
unreasonably withheld.
(4) If requested to do so by the registered trade union or the
employer, the Commission must attempt to secure an agreement between
the parties to the dispute on rules that should apply to any picket
in relation to that strike or lock-out.
(5) If there is no agreement, the Commission must establish
picketing rules, and in doing so must take account of-
(a) the particular circumstances of the workplace or other premises
where it is intended that the right to picket is to be exercised;
and
(b) any relevant code of good practice.
(6) The rules established by the Commission may provide for
picketing by employees on their employer's premises if the
Commission is satisfied that the employer's permission has been
unreasonably withheld.
(7) The provisions of section 67, read with the changes required by
the context, apply to the call for, organisation of, or
participation in a picket that complies with the provisions of this
section.
(8) Any party to a dispute about any of the following issues may
refer the dispute in writing to the Commission-
(a) an allegation that the effective use of the right to picket is
being undermined;
(b) an alleged material contravention of subsection (1) or (2);
(c) an alleged material breach of an agreement concluded in terms of
subsection (4); or
(d) an alleged material breach of a rule established in terms of
subsection (5).
(9) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(10) The Commission must attempt to resolve the dispute through
conciliation.
(11) If the dispute remains unresolved, any party to the dispute may
refer it to the Labour Court for adjudication.
16. See flow diagram No. 7 in Schedule 4.
70. Essential services committee
(1) The Minister, after consulting NEDLAC, and in consultation with
the Minister for the Public Service and Administration, must
establish an essential services committee under the auspices of the
Commission and –
(a) appoint to that committee, on any terms that the Minister
considers fit, persons who have knowledge and experience of labour
law and labour relations; and
(b) designate one of the members of the committee as its
chairperson.
(2) The functions of the essential services committee are-
(a) to conduct investigations as to whether or not the whole or a
part of any service is an essential service, and then to decide
whether or not to designate the whole or a part of that service as
an essential service;
(b) to determine disputes as to whether or not the whole or a part
of any service is an essential service; and
(c) to determine whether or not the whole or a part of any service
is a maintenance service. 17
(3) At the request of a bargaining council, the essential services
committee must conduct an investigation in terms of subsection
(2)(a).
17. A maintenance service is defined in section 75.
71. Designating a service as an essential service
(1) The essential services committee must give notice in the
Government Gazette of any investigation that it is to conduct as to
whether the whole or a part of a service is an essential service.
(2) The notice must indicate the service or the part of a service
that is to be the subject of the investigation and must invite
interested parties, within a period stated in the notice-
(a) to submit written representations; and
(b) to indicate whether or not they require an opportunity to make
oral representations.
(3) Any interested party may inspect any written representations
made pursuant to the notice, at the Commission's offices.
(4) The Commission must provide a certified copy of, or extract
from, any written representations to any person who has paid the
prescribed fee.
(5) The essential services committee must advise parties who wish to
make oral representations of the place and time at which they may be
made.
(6) Oral representations must be made in public.
(7) After having considered any written and oral representations,
the essential services committee must decide whether or not to
designate the whole or a part of the service that was the subject of
the investigation as an essential service.
(8) If the essential services committee designates the whole or a
part of a service as an essential service, the committee must
publish a notice to that effect in the Government Gazette.
(9) The essential services committee may vary or cancel the
designation of the whole or a part of a service as an essential
service, by following the provisions set out in subsections (1) to
(8), read with the changes required by the context.
(10) The Parliamentary service and the South African Police Service
are deemed to have been designated an essential service in terms of
this section.
72. Minimum services
The essential services committee may ratify any collective agreement
that provides for the maintenance of minimum services in a service
designated as an essential service, in which case-
(a) the agreed minimum services are to be regarded as an essential
service in respect of the employer and its employees; and
(b) the provisions of section 74 do not apply.
73. Disputes about whether a service is an essential service
(1) Any party to a dispute about either of the following issues may
refer the dispute in writing to the essential services committee-
(a) whether or not a service is an essential service; or
(b) whether or not an employee or employer is engaged in a service
designated as an essential service.
(2) The party who refers the dispute to the essential services
committee must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(3) The essential services committee must determine the dispute as
soon as possible.
74. Disputes in essential services18
(1) Any party to a dispute that is precluded from participating in a
strike or a lock-out because that party is engaged in an essential
service may refer the dispute in writing to
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has jurisdiction
(2) The party who refers the dispute must satisfy the council or the
Commission that a copy of the referral has been served on all the
other parties to the dispute.
(3) The council or the Commission must attempt to resolve the
dispute through conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration by the
council or the Commission.
(5) Any arbitration award in terms of subsection (4) made in respect
of the State and that has financial implications for the State
becomes binding-
(a) 14 days after the date of the award, unless a Minister has
tabled the award in Parliament within that period; or
(b) 14 days after the date of tabling the award, unless Parliament
has passed a resolution that the award is not binding.
(6) If Parliament passes a resolution that the award is not binding,
the dispute must be referred back to the Commission for further
conciliation between the parties to the dispute and if that fails,
any party to the dispute may request the Commission to arbitrate.
(7) If Parliament is not in session on the expiry of
(a) the period referred to in subsection (5)(a), that period or the
balance of that period will run from the beginning of the next
session of Parliament;
(b) the period referred to in subsection (5)(b), that period will
run from the expiry of the period referred to in paragraph (a) of
this subsection or from the beginning of the next session of
Parliament.
18. See flow diagram No. 8 in Schedule 4.
75. Maintenance services
(1) A service is a maintenance service if the interruption of that
service has the effect of material physical destruction to any
working area, plant or machinery.
(2) If there is no collective agreement relating to the provision of
a maintenance service, an employer may apply in writing to the
essential services committee for a determination that the whole or a
part of the employer's business or service is a maintenance service.
(3) The employer must satisfy the essential services committee that
a copy of the application has been served on all interested parties.
(4) The essential services committee must determine, as soon as
possible, whether or not the whole or a part of the employer’s
business or service is a maintenance service.
(5) As part of its determination in terms of subsection (4), the
essential services committee may direct that any dispute in respect
of which the employees engaged in a maintenance service would have
had the right to strike, but for the provisions of section
65(1)(d)(ii), be referred to arbitration.
(6) The committee may not make a direction in terms of subsection
(5) if –
(a) the terms and conditions of employment of the employees engaged
in the maintenance service are determined by collective bargaining;
or
(b) if the number of employees prohibited from striking because they
are engaged in the maintenance service does not exceed the number of
employees who are entitled to strike.
(7) If a direction in terms of subsection (5) requires a dispute to
be resolved by arbitration –
(a) the provisions of section 74 will apply to the arbitration; and
(b) any arbitration award will be binding on the employees engaged
in the maintenance service and their employer, unless the terms of
the award are varied by a collective agreement.
76. Replacement labour
(1) An employer may not take into employment any person-
(a) to continue or maintain production during a protected strike if
the whole or a part of the employer's service has been designated a
maintenance service; or
(b) for the purpose of performing the work of any employee who is
locked out, unless the lock-out is in response to a strike.
(2) For the purpose of this section, "take into employment" includes
engaging the services of a temporary employment service or an
independent contractor.
77. Protest action to promote or defend socio-economic interests of
workers
(1) Every employee who is not engaged in an essential service or a
maintenance service has the right to take part in protest action if-
(a) the protest action has been called by a registered trade union
or federation of trade unions;
(b) the registered trade union or federation of trade unions has
served a notice on NEDLAC stating-
(i) the reasons for the protest action; and
(ii) the nature of the protest action;
(c) the matter giving rise to the intended protest action has been
considered by NEDLAC or any other appropriate forum in which the
parties concerned are able to participate in order to resolve the
matter; and
(d) at least 14 days before the commencement of the protest action,
the registered trade union or federation of trade unions has served
a notice on NEDLAC of its intention to proceed with the protest
action.
(2) The Labour Court has exclusive jurisdiction-
(a) to grant any order to restrain any person from taking part in
protest action or in any conduct in contemplation or in furtherance
of protest action that does not comply with subsection (1);
(b) in respect of protest action that complies with subsection (1),
to grant a declaratory order contemplated by subsection (4), after
having considered-
(i) the nature and duration of the protest action;
(ii) the steps taken by the registered trade union or federation of
trade unions to minimise the harm caused by the protest action; and
(iii) the conduct of the participants in the protest action.
(3) A person who takes part in protest action or in any conduct in
contemplation or in furtherance of protest action that complies with
subsection (1), enjoys the protections conferred by section 67.
(4) Despite the provisions of subsection (3), an employee forfeits
the protection against dismissal conferred by that subsection, if
the employee-
(a) takes part in protest action or any conduct in contemplation or
in furtherance of protest action in breach of an order of the Labour
Court; or
(b) otherwise acts in contempt of an order of the Labour Court made
in terms of this section.
CHAPTER V
WORKPLACE FORUMS
78. Definitions in this Chapter
In this Chapter-
(a) "employee" means any person who is employed in a workplace,
except a senior managerial employee whose contract of employment or
status confers the authority to do any of the following in the
workplace-
(i) represent the employer in dealings with the workplace forum; or
(ii) determine policy and take decisions on behalf of the employer
that may be in conflict with the representation of employees in the
workplace; and
(b) "representative trade union" means a registered trade union, or
two or more registered trade unions acting jointly, that have as
members the majority of the employees employed by an employer in a
workplace.
79. General functions of workplace forum
A workplace, forum established in terms of this Chapter-
(a) must seek to promote the interests of all employees in the
workplace, whether or not they are trade union members;
(b) must seek to enhance efficiency in the workplace;
(c) is entitled to be consulted by the employer, with a view to
reaching consensus, about the matters referred to in section 84; and
(d) is entitled to participate in joint decision-making about the
matters referred to in section 86.
80. Establishment of workplace forum
(1) A workplace forum may be established in any workplace in which
an employer employs more than 100 employees.
(2) Any representative trade union may apply to the Commission in
the prescribed form for the establishment of a workplace, forum.
(3) The applicant must satisfy the Commission that a copy of the
application has been served on the employer.
(4) The Commission may require further information in support of the
application.
(5) The Commission must-
(a) consider the application and any further information provided by
the applicant; and
(b) consider whether, in the workplace in respect of which the
application has been made-
(i) the employer employs 100 or more employees;
(ii) the applicant is a representative trade union; and
(iii) there is no functioning workplace forum established in terms
of this Chapter.
(6) If satisfied that the requirements of subsection (5) are met,
the Commission must appoint a commissioner to assist the parties to
establish a workplace forum by collective agreement or, failing
that, to establish a workplace forum in terms of this Chapter.
(7) The commissioner must convene a meeting with the applicant, the
employer and any registered trade union that has members employed in
the workplace, in order to facilitate the conclusion of a collective
agreement between those parties, or at least between the applicant
and the employer.
(8) If a collective agreement is concluded, the provisions of this
Chapter do not apply.
(9) If a collective agreement is not concluded, the commissioner
must meet the parties referred to in subsection (7) in order to
facilitate agreement between them, or at least between the applicant
and the employer, on the provisions of a constitution for a
workplace forum in accordance with this Chapter, taking into account
the guidelines in Schedule 2.
(10) If no agreement is reached on any of the provisions of a
constitution, the commissioner must establish a workplace forum and
determine the provisions of the constitution in accordance with this
Chapter, taking into account the guidelines in Schedule 2.
(11) After the workplace forum has been established, the
commissioner must set a date for the election of the first members
of the workplace forum and appoint an election officer to conduct
the election.
(12) The provisions of this section do not apply to the public
service. The establishment of workplace forums in the public service
will be regulated in a Schedule promulgated by the Minister for the
Public Service and Administration in terms of section 207(4).
81. Trade union based workplace forum
(1) If a representative trade union is recognised in terms of a
collective agreement by an employer for the purposes of collective
bargaining in respect of all employees in a workplace, that trade
union may apply to the Commission in the prescribed form for the
establishment of a workplace forum.
(2) The applicant may choose the members of the workplace forum from
among its elected representatives in the workplace.
(3) If the applicant makes this choice, the provisions of this
Chapter apply, except for section 80(1) and section 82(1)(b) to (m).
(4) The constitution of the applicant governs the nomination,
election and removal from office of elected representatives of the
applicant in the workplace.
(5) A workplace forum constituted in terms of this section will be
dissolved if-
(a) the collective agreement referred to in subsection (1) is
terminated;
(b) the applicant is no longer a representative trade union.
(6) The provisions of this section do not apply to the public
service.
82. Requirements for constitution of workplace forum
(1) The constitution of every workplace forum must-
(a) establish a formula for determining the number of seats in the
workplace forum;
(b) establish a formula for the distribution of seats in the
workplace forum so as to reflect the occupational structure of the
workplace;
(c) provide for the direct election of members of the workplace
forum by the employees in the workplace;
(d) provide for the appointment of an employee as an election
officer to conduct elections and define that officer's functions and
powers;
(e) provide that an election of members of the workplace forum must
be held not later than 24 months after each preceding election;
(f) provide that if another registered trade union becomes
representative, it may demand a new election at any time within 21
months after each preceding election;
(g) provide for the procedure and manner in which elections and
ballots must be conducted;
(h) provide that any employee, including any former or current
member of the workplace forum, may be nominated as a candidate for
election as a member of the workplace forum by-
(i) any registered trade union with members employed in the work-
place; or
(ii) a petition signed by not less than 20 per cent of the employees
in the workplace or 100 employees, whichever number of employees is
the smaller;
(i) provide that in any ballot every employee is entitled-
(i) to vote by secret ballot; and
(ii) to vote during working hours at the employer's premises;
(j) provide that in an election for members of the workplace forum
every employee is entitled, unless the constitution provides
otherwise-
(i) to cast a number of votes equal to the number of members to be
elected; and
(ii) to cast one or more of those votes in favour of any candidate;
(k) establish the terms of office of members of the workplace forum
f and the circumstances in which a member must vacate that office;
(l) establish the circumstances and manner in which members of the
workplace forum may be removed from office, including the right of
an representative trade union that nominated a member for election
to remove that member at any time;
(m) establish the manner in which vacancies in the workplace forum
may be filled, including the rules for holding by-elections;
(n) establish the circumstances and manner in which the meetings
referred to in section 83 must be held;
(o) provide that the employer must allow the election officer
reasonable time off with pay during working hours to prepare for and
conduct elections;
(p) provide that the employer must allow each member of the
workplace forum reasonable time off with pay during working hours to
perform the functions of a member of the workplace, forum and to
receive training relevant to the performance of those functions;
(q) require the employer to take any steps that are reasonably
necessary to assist the election officer to conduct elections;
(r) require the employer to provide facilities to enable the
workplace forum to perform its functions;
(s) provide for the designation of full-time members of the
workplace forum if there are more than
1 000 employees in a workplace;
(t) provide that the workplace forum may invite any expert to attend
its meetings, including meetings with the employer or the employees,
and that an expert is entitled to any information to which the
workplace forum is entitled and to inspect and copy any document
that members of the workplace forum are entitled to inspect and
copy;
(u) provide that office-bearers or officials of the representative
trade union may attend meetings of the workplace forum, including
meetings with the employer or the employees;
(v) provide that the representative trade union and the employer, by
agreement, may change the constitution of the workplace forum; and
(w) establish the manner in which decisions are to be made.
(2) The constitution of a workplace forum may-
(a) establish a procedure that provides for the conciliation and
arbitration of proposals in respect of which the employer and the
workplace forum do not reach consensus;
(b) establish a coordinating workplace forum to perform any of the
general functions of a workplace forum and one or more subsidiary
workplace forums to perform any of the specific functions of a
workplace forum; and
(c) include provisions that depart from sections 83 to 92.
(3) The constitution of a workplace forum binds the employer.
(4) The Minister for the Public Service and Administration may amend
the requirements for a constitution in terms of this section for
workplace forums in the public service by a Schedule promulgated in
terms of section 207(4).
83. Meetings of workplace forum
(1) There must be regular meetings of the workplace forum.
(2) There must be regular meetings between the workplace forum and
the employer, at which the employer must-
(a) present a report on its financial and employment situation, its
performance since the last report and its anticipated performance in
the short term and in the long term; and
(b) consult the workplace forum on any matter arising from the
report that may affect employees in the workplace.
(3) (a) There must be meetings between members of the workplace
forum and the employees employed
in the workplace at regular and appropriate intervals. At the
meetings with employees, the
workplace forum must report on-
(i) its activities generally;
(ii) matters in respect of which it has been consulted by the
employer; and
(iii) matters in respect of which it has participated in joint
decision-making with the employer.
(b) Each calendar year, at one of the meetings with the employees,
the employer must present an annual report of its financial and
employment situation, its performance generally and its future
prospects and plans.
(c) The meetings of employees must be held during working hours at a
time and place agreed upon by the workplace forum and the employer
without loss of pay on the part of the employees.
84. Specific matters for consultation
(1) Unless the matters for consultation are regulated by a
collective agreement with the representative trade union, a
workplace forum is entitled to be consulted by the employer about
proposals relating to any of the following matters-
(a) restructuring the workplace, including the introduction of new
technology and new work methods;
(b) changes in the organisation of work;
(c) partial or total plant closures;
(d) mergers and transfers of ownership in so far as they have an
impact on the employees;
(e) the dismissal of employees for reasons based on operational
requirements;
(f) exemptions from any collective agreement or any law;
(g) job grading;
(h) criteria for merit increases or the payment of discretionary
bonuses;
(i) education and training;
(j) product development plans; and
(k) export promotion.
(2) A bargaining council may confer on a workplace forum the right
to be consulted about additional matters in workplaces that fall
within the registered scope of the bargaining council.
(3) A representative trade union and an employer may conclude a
collective agreement conferring on the workplace forum the right to
be consulted about any additional matters in that workplace.
(4) Any other law may confer on a workplace forum the right to be
consulted about additional matters.
(5) Subject to any applicable occupational health and safety
legislation, a representative trade union and an employer may agree-
(a) that the employer must consult with the workplace forum with a
view to initiating, developing, promoting, monitoring and reviewing
measures to ensure health and safety at work;
(b) that a meeting between the workplace forum and the employer
constitutes a meeting of a health and safety committee required to
be established in the workplace by that legislation; and
(c) that one or more members of the workplace forum are health and
safety representatives for the purposes of that legislation.
(6) For the purposes of workplace forums in the public service-
(a) the collective agreement referred to in subsection (1) is a
collective agreement concluded in a bargaining council;
(b) a bargaining council may remove any matter from the list of
matters referred to in subsection (1) in respect of workplaces that
fall within its registered scope; and
(c) subsection (3) does not apply.
85. Consultation
(1) Before an employer may implement a proposal in relation to any
matter referred to in section 84(l), the employer must consult the
workplace forum and attempt to reach consensus with it.
(2) The employer must allow the workplace forum an opportunity
during the consultation to make representations and to advance
alternative proposals.
(3) The employer must consider and respond to the representations or
alternative proposals made by the workplace forum and, if the
employer does not agree with them, the employer must state the
reasons for disagreeing.
(4) If the employer and the workplace forum do not reach consensus,
the employer must invoke any agreed procedure to resolve any
differences before implementing the employer's proposal.
86. Joint decision-making
(1) Unless the matters for joint decision-making are regulated by a
collective agreement with the representative trade union, an
employer must consult and reach consensus with a workplace forum
before implementing any proposal concerning-
(a) disciplinary codes and procedures;
(b) rules relating to the proper regulation of the workplace in so
far as they apply to conduct not related to the work performance of
employees;
(c) measures designed to protect and advance persons disadvantaged
by unfair discrimination; and
(d) changes by the employer or by employer-appointed representatives
on trusts or boards of employer-controlled schemes, to the rules
regulating social benefit schemes.
(2) A representative trade union and an employer may conclude a
collective agreement-
(a) conferring on the workplace forum the right to joint
decision-making in respect of additional matters in that workplace;
(b) removing any matter referred to in subsection (1)(a) to (d) from
the list of matters requiring joint decision-making.
(3) Any other law may confer on a workplace forum the right to
participate in joint decision-making about additional matters.
(4) If the employer does not reach consensus with the workplace
forum, the employer may-
(a) refer the dispute to arbitration in terms of any agreed
procedure; or
(b) if there is no agreed procedure, refer the dispute to the
Commission.
(5) The employer must satisfy the Commission that a copy of the
referral has been served on the chairperson of the workplace forum.
(6) The Commission must attempt to resolve the dispute through
conciliation.
(7) If the dispute remains unresolved, the employer may request that
the dispute be resolved through arbitration. 19
(8)
(a) An arbitration award is about a proposal referred to in
subsection (1)(d) takes effect 30 days after the date of the award.
(b) Any representative on the trust or board may apply to the Labour
Court for an order declaring that the implementation of the award
constitutes a breach of a fiduciary duty on the part of that
representative.
(c) Despite paragraph (a), the award will not take effect pending
the determination by the Labour Court of an application made in
terms of paragraph (b).
(9) For the purposes of workplace forums in the public service, a
collective agreement referred to in subsections (1) and (2) is a
collective agreement concluded in a bargaining council.
19. See flow diagram No. 9 in Schedule 4.
87. Review at request of newly established workplace forum
(1) After the establishment of a workplace forum, the workplace
forum may request a meeting with the employer to review-
(a) criteria for merit increases or the payment of discretionary
bonuses;
(b) disciplinary codes and procedures; and
(c) rules relating to the proper regulation of the workplace in so
far as they apply to conduct not related to work performance of
employees in the workplace.
(2) The employer must submit its criteria, disciplinary codes and
procedures, and rules, referred to in subsection (1), if any, in
writing to the workplace forum for its consideration.
(3) A review of the criteria must be conducted in accordance with
the provisions of section 85.
(4) A review of the disciplinary codes and procedures, and rules,
must be conducted in accordance with the provisions of section 86(2)
to (7) except that, in applying section 86(4), either the employer
or the workplace forum may refer a dispute between them to
arbitration or to the Commission.
88. Matters affecting more than one workplace forum in an employer's
operation
(1) If the employer operates more than one workplace and separate
workplace forums have been established in two or more of those
workplaces, and if a matter has been referred to arbitration in
terms of section 86(4)(a) or (b) or by a workplace forum in terms of
section 87(4), the employer may give notice in writing to the
chairpersons of all the workplace forums that no other workplace
forum ma refer a matter that is substantially the same as the matter
referred to arbitration.
(2) If the employer gives notice in terms of subsection (1)-
(a) each workplace forum is entitled to make representations and
participate in the arbitration proceedings; and
(b) the arbitration award is binding on the employer and the
employees in each workplace.
89. Disclosure of information
(1) An employer must disclose to the workplace forum all relevant
information that will allow the workplace forum to engage
effectively in consultation and joint decision-making.
(2) An employer is not required to disclose information-
(a) that is legally privileged;
(b) that the employer cannot disclose without contravening a
prohibition imposed on the employer by any law or order of any
court;
(c) that is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; or
(d) that is private personal information relating to an employee,
unless that employee consents to the disclosure of that information.
(2A) The employer must notify the workplace forum in writing if of
the view that any information disclosed in terms of subsection (1)
is confidential.
(3) If there is a dispute about the disclosure of information, any
party to the dispute may refer the dispute in writing to the
Commission.
(4) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(5) The Commission must attempt to resolve the dispute through
conciliation.
(6) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(7) In any dispute about the disclosure of information contemplated
in subsection (3), the commissioner must first decide whether or not
the information is relevant.
(8) If the commissioner decides that the information is relevant and
if it is information contemplated in subsection (2)(c) or (d), the
commissioner must balance the harm that the disclosure is likely to
cause to an employee or employer against the harm that the failure
to disclose the information is likely to cause to the ability of the
workplace forum to engage effectively in consultation and joint
decision-making.
(9) If the commissioner decides that the balance of harm favours the
disclosure of the information, the commissioner may order the
disclosure of the information on terms designed to limit the harm
likely to be caused to the employee or employer.
(10) When making an order in terms of subsection (9), the
commissioner must take into account any breach of confidentiality in
respect of information disclosed in terms of this section at that
workplace and may refuse to order the disclosure of the information
or any other confidential information, that might otherwise be
disclosed, for a period specified in the arbitration award.
90. Inspection and copies of documents
(1) Any documented information that is required to be disclosed by
the employer in terms of section 89 must be made available on
request to the members of the workplace forum for inspection.
(2) The employer must provide copies of the documentation on request
to the members of the workplace forum.
91. Breach of confidentiality
In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information
in that workplace be withdrawn for a period specified in the
arbitration award.
92. Full-time members of workplace forum
(1) In a workplace in which 1000 or more employees are employed, the
members of the workplace forum may designate from their number one
full-time member.
(2)
(a) The employer must pay a full-time member of the workplace forum
the same remuneration that the member would have earned in the
position the member held immediately before being designated as a
full-time member.
(b) When a person ceases to be a full-time member of a workplace
forum, the employer must reinstate that person to the position that
person held immediately before election or appoint that person to
any higher position to which, but for the election, that person
would have advanced.
93. Dissolution of workplace forum
(1) A representative trade union in a workplace may request a ballot
to dissolve a workplace forum.
(2) If a ballot to dissolve a workplace forum has been requested, an
election officer must be appointed in terms of the constitution of
the workplace forum.
(3) Within 30 days of the request for a ballot to dissolve the
workplace forum, the election officer must prepare and conduct the
ballot.
(4) If more than 50 per cent of the employees who have voted in the
ballot support the dissolution of the workplace forum, the workplace
forum must be dissolved.
94. Disputes about workplace forums
(1) Unless a collective agreement or this Chapter provides
otherwise, any party to a dispute about the interpretation or
application of this Chapter may refer that dispute to the Commission
in writing, if that party is-
(a) one or more employees employed in the workplace;
(aA) a workplace forum;
(b) a registered trade union with members employed in the workplace;
(c) the representative trade union; or
(d) the employer.
(2) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
(3) The Commission must attempt to resolve the dispute through
conciliation.
(4) If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
CHAPTER VI
TRADE UNIONS AND EMPLOYERS' ORGANISATIONS
Part A-Registration And Regulation Of Trade Unions And Employers'
Organisations
95. Requirements for registration of trade unions or employers'
organisations
(1) Any trade union may apply to the registrar for registration if-
(a) it has adopted a name that meets the requirements of subsection
(4);
(b) it has adopted a constitution that meets the requirements of
subsections (5) and (6);
(c) it has an address in the Republic; and
(d) it is independent.
(2) A trade union is independent if-
(a) it is not under the direct or indirect control of any employer
or employers' organisation; and
(b) it is free of any interference or influence of any kind from any
employer or employers' organisation.
(3) Any employers' organisation may apply to the registrar for
registration if-
(a) it has adopted a name that meets the requirements of subsection
(4);
(b) it has adopted a constitution that meets the requirements of
subsections (5) and (6), and
(c) it has an address in the Republic.
(4) Any trade union or employers' organisation that intends to
register may not have a name or shortened form of the name that so
closely resembles the name or shortened form of the name of another
trade union or employers' organisation that it is likely to mislead
or cause confusion.
(5) The constitution of any trade union or employers' organisation
that intends to register must-
(a) state that the trade union or employers' organisation is an
association not for gain;
(b) prescribe qualifications for, and admission to, membership;
(c) establish the circumstances in which a member will no longer be
entitled to the benefits of membership;
(d) provide for the termination of membership;
(e) provide for appeals against loss of the benefits of membership
or against termination of membership, prescribe a procedure for
those appeals and determine the body to which those appeals may be
made;
(f) provide for membership fees and the method for determining
member-ship fees and other payments by members;
(g) prescribe rules for the convening and conducting of meetings of
members and meetings of representatives of members, including the
quorum required for, and the minutes to be kept of, those meetings;
(h) establish the manner in which decisions are to be made;
(i) establish the office of secretary and define its functions;
(j) provide for other office-bearers, officials and, in the case of
a trade union, trade union representatives, and define their
respective functions;
(k) prescribe a procedure for nominating or electing office-bearers
and, in the case of a trade union, trade union representatives;
(l) prescribe a procedure for appointing, or nominating and
electing, officials;
(m) establish the circumstances and manner in which office-bearers,
officials and, in the case of a trade union, trade union
representatives, may be removed from office;
(n) provide for appeals against removal from office of
office-bearers, officials and, in the case of a trade union, trade
union representatives, prescribe a procedure for those appeals and
determine the body to which those appeals may be made;
(o) establish the circumstances and manner in which a ballot must be
conducted;
(p) provide that the trade union or employers' organisation, before
calling a strike or lock-out, must conduct a ballot of those of its
members in respect of whom it intends to call the strike or
lock-out;
(q) provide that members of the trade union or employers'
organisation may not be disciplined or have their membership
terminated for failure or refusal to participate in a strike or
lock-out if-
(i) no ballot was held about the strike or lock-out; or
(ii) a ballot was held but a majority of the members who voted did
not vote in favour of the strike or lock-out;
(r) provide for banking and investing its money;
(s) establish the purposes for which its money may be used;
(t) provide for acquiring and controlling property;
(u) determine a date for the end of its financial year;
(v) prescribe a procedure for changing its constitution; and
(w) prescribe a procedure by which it may resolve to wind up.
(6) The constitution of any trade union or employers' organisation
which intends to register may not include any provision that
discriminates directly or indirectly against any person on the
grounds of race or sex.
(7) The registrar must not register a trade union or an employers’
organisation unless the registrar is satisfied that the applicant is
a genuine trade union or a genuine employers’ organisation.
(8) The Minister, in consultation with NEDLAC, may by notice in the
Government Gazette publish guidelines to be applied by the registrar
in determining whether an applicant is a genuine trade union or a
genuine employers’ organisation.
96. Registration of trade unions or employers' organisations
(1) Any trade union or employers' organisation may apply for
registration by submitting to the registrar-
(a) a prescribed form that has been properly completed;
(b) a copy of its constitution; and
(c) any other information that may assist the registrar to determine
whether or not the trade union or employers' organisation meets the
requirements for registration.
(2) The registrar may require further information in support of the
application.
(3) The registrar-
(a) must consider the application and any further information
provided by the applicant; and
(b) if satisfied that the applicant meets the requirements for
registration, must register the applicant by entering the
applicant's name in the register of trade unions or the register of
employers' organisations.
(4) If the registrar is not satisfied that the applicant meets the
requirements for registration, the registrar-
(a) must send the applicant a written notice of the decision and the
reasons for that decision; and
(b) in that notice, must inform the applicant that it has 30 days
from the date of the notice to meet those requirements.
(5) If, within that 30-day period, the applicant meets the
requirements for registration, the registrar must register the
applicant by entering the applicant's name in the appropriate
register.
(6) If, within that 30-day period, an applicant has attempted to
meet the requirements for registration but the registrar concludes
that the applicant has failed to do so, the registrar must-
(a) refuse to register the applicant; and
(b) notify the applicant in writing of that decision.
(7) After registering the applicant, the registrar must-
(a) issue a certificate of registration in the applicant's name; and
(b) send the certificate and a certified copy of the registered
constitution to the applicant.
97. Effect of registration of trade union or employers' organisation
(1) A certificate of registration is sufficient proof that a
registered trade union or registered employers' organisation is a
body corporate.
(2) The fact that a person is a member of a registered trade union
or a registered employers' organisation does not make that person
liable for any of the obligations or liabilities of the trade union
or employers' organisation.
(3) A member, office-bearer or official of a registered trade union
or a registered employers' organisation or, in the case of a trade
union, a trade union representative is not personally liable for any
loss suffered by any person as a result of an act performed or
omitted in good faith by the member, office-bearer, official or
trade union representative while performing their functions for or
on behalf of the trade union or employers' organisation.
(4) Service of any document directed to a registered trade union or
employers' organisation at the address most recently provided to the
registrar will be for all purposes service of that document on that
trade union or employers' organisation.
98. Accounting records and audits
(1) Every registered trade union and every registered employers'
organisation must, to the standards of generally accepted accounting
practice, principles and procedures-
(a) keep books and records of its income, expenditure, assets and
liabilities; and
(b) within six months after the end of each financial year, prepare
financial statements, including at least-
(i) a statement of income and expenditure for the previous financial
year; and
(ii) a balance sheet showing its assets, liabilities and financial
position as at the end of the previous financial year.
(2) Every registered trade union and every registered employers'
organisation must arrange for an annual audit of its books and
records of account and its financial statements by an auditor who
must-
(a) conduct the audit in accordance with generally accepted auditing
standards; and
(b) report in writing to the trade union or employers' organisation
and in that report-
(i) express an opinion as to whether or not the trade union or
employers' organisation has complied with those provisions of its
constitution relating to financial matters; and
(ii) if the trade union is a party to an agency shop agreement
referred to in section 25 or a closed shop agreement referred to in
section 26 express an opinion as to whether or not the trade union
has complied with the provisions of those sections.
(3) Every registered trade union and every registered employers'
organisation must-
(a) make the financial statements and the auditor's report available
to its members for inspection; and
(b) submit those statements and the auditor's report to a meeting or
meetings of its members or their representatives as provided for in
its constitution.
(4) Every registered trade union and every registered employers'
organisation must preserve each of its books of account, supporting
vouchers, records of subscriptions or levies paid by its members,
income and expenditure statements, balance sheets, and auditor's
reports, in an original or reproduced form, for a period of three
years from the end of the financial year to which they relate.
99. Duty to keep records
In addition to the records required by section 98, every registered
trade union and every registered employers' organisation must keep-
(a) a list of its members;
(b) the minutes of its meetings, in an original or reproduced form,
for a period of three years from the end of the financial, year to
which they relate; and
(c) the ballot papers for a period of three years from the date of
every ballot.
100. Duty to provide information to registrar
Every registered trade union and every registered employers'
organisation must provide to the registrar-
(a) by 31 March each year, a statement, certified by the secretary
that it accords with its records, showing the number of members as
at 31 December of the previous year and any other related details
that may be required by the registrar;
(b) within 30 days of receipt of its auditor's report, a certified
copy of that report and of the financial statements;
(c) within 30 days of receipt of a written request by the registrar,
an explanation of anything relating to the statement of membership,
the auditor's report or the financial statements;
(d) within 30 days of any appointment or election of its national
office-bearers, the names and work addresses of those
office-bearers, even if their appointment or election did not result
in any changes to its office-bearers; and
(e) 30 days before a new address for service of documents will take
effect, notice of that change of address.
101. Changing constitution or name of registered trade unions or
employers' organisations
(1) A registered trade union or a registered employers' organisation
may resolve to change or replace its constitution.
(2) The registered trade union or the registered employers'
organisation must send the registrar a copy of the resolution and a
certificate signed by its secretary stating that the resolution
complies with its constitution.
(3) The registrar must-
(a) register the changed or new constitution if it meets the
requirements for registration; and
(b) send the registered trade union or registered employers'
organisation a copy of the resolution endorsed by the registrar,
certifying that the change or replacement has been registered.
(4) The changed or new constitution takes effect from the date of
the registrar's certification.
(5) A registered trade union or registered employers' organisation
may resolve to change its name.
(6) The registered trade union or registered employers' organisation
must send the registrar a copy of the resolution and the original of
its current certificate of registration.
(7) If the new name of the trade union or employers' organisation
meets the requirements of section 95(4),20 the registrar must-
(a) enter the new name in the appropriate register and issue a
certificate of registration in the new name of the trade union or
employers' organisation;
(b) remove the old name from that register and cancel the earlier
certificate of registration; and
(c) send the new certificate to the trade union or employers'
organisation.
(8) The new name takes effect from the date that the registrar
enters it in the appropriate register.
20. These are the requirements relating to the name of a trade union
or employers' organisation to be registered.
102. Amalgamation of trade unions or employers' organisations
(1) Any registered-
(a) trade union may resolve to amalgamate with one or more other
trade unions, whether or not those other trade unions are
registered; and
(b) employers' organisation may resolve to amalgamate with one or
more other employers' organisations, whether or not those other
employers' organisations are registered.
(2) The amalgamating trade unions or amalgamating employers'
organisations may apply to the registrar for registration of the
amalgamated trade union or amalgamated employers' organisation, even
if any of the amalgamating trade unions or amalgamating employers'
organisations is itself already registered, and the registrar must
treat the application as an application in terms of section 96.
(3) After the registrar has registered the amalgamated trade union
or amalgamated employers' organisation, the registrar must cancel
the registration of each of the amalgamating trade unions or
amalgamating employers' organisations by removing their names from
the appropriate register.
(4) The registration of an amalgamated trade union or an amalgamated
employers' organisation takes effect from the date that the
registrar enters its name in the appropriate register.
(5) When the registrar has registered an amalgamated trade union or
amalgamated employers' organisation-
(a) all the assets, rights, obligations and liabilities of the
amalgamating trade unions or the amalgamating employers'
organisations devolve upon and vest in the amalgamated trade union
or amalgamated employers' organisation; and
(b) the amalgamated trade union or amalgamated employers'
organisation succeeds the amalgamating trade unions or the
amalgamating employers' organisations in respect of-
(i) any right that the amalgamating trade unions or the amalgamating
employers' organisations enjoyed;
(ii) any fund established in terms of this Act or any other law;
(iii) any arbitration award or court order;
(iv) any collective agreement or other agreement;
(v) membership of any council; and
(vi) any written authorisation by a member for the periodic
deduction of levies or subscriptions due to the amalgamating trade
unions or amalgamating employers' organisations.
103. Winding-up of trade unions or employers' organisations
(1) The Labour Court may order a trade union or employers'
organisation to be wound up if-
(a) the trade union or employers' organisation has resolved to
wind-up its affairs and has applied to the Court for an order giving
effect to that resolution; or
(b) the registrar or any member of the trade union or employers'
organisation has applied to the Court for its winding up and the
Court is satisfied that the trade union or employers' organisation,
for some reason that cannot be remedied is unable to continue to
function.
(1A) If the registrar has cancelled the registration of a trade
union or employers’ organisation in terms of section 106(2A), any
person opposing its winding up is required to prove that the trade
union or employers’ organisation is able to continue to function.
(2) If there are any persons not represented before the Labour Court
whose interests may be affected by an order in terms of subsection
(1), the Court must-
(a) consider those interests before deciding whether or not to grant
the order applied for; and
(b) if it grants the order applied for, include provisions in the
order disposing of each of those interests.
(3) In granting an order in terms of subsection (1), the Labour
Court may appoint a suitable person as liquidator, on appropriate
conditions.
(4)
(a) The registrar of the Labour Court must determine the
liquidator's fees.
(b) The Labour Court, in chambers, may review the determination of
the registrar of the Labour Court.
(c) The liquidator's fees are a first charge against the assets of
the trade union or employers' organisation.
(5) If, after all the liabilities of the trade union or employers'
organisation have been discharged, any assets remain which cannot be
disposed of in accordance with the constitution of that trade union
or employers' organisation, the liquidator must realise those assets
and pay the proceeds to the Commission for its own use.
(6)
(a) The Labour Court may direct that the costs of the registrar or
any other person who has brought an application in terms of
subsection (1)(b) be paid from the assets of the trade union or
employers’ organisation.
(b) Any costs in terms of paragraph (a) rank concurrently with the
liquidator’s fees
104. Winding-up of trade unions or employers' organisations by
reason of insolvency
Any person who seeks to wind-up a trade union or employers'
organisation by reason of insolvency must comply with the Insolvency
Act, 1936 (Act No. 24 of 1936), and, for the purposes of this
section, any reference to the court in that Act must be interpreted
as referring to the Labour Court.
105. Declaration that trade union is no longer independent
(1) Any registered trade union may apply to the Labour Court for an
order declaring that another trade union is no longer independent.
(2) If the Labour Court is satisfied that a trade union is not
independent, the Court must make a declaratory order to that effect.
106. Cancellation of registration of trade unions or employers'
organisations
(1) The registrar of the Labour Court must notify the registrar if
the Court
(a) in terms of section 103 or 104 has ordered a registered trade
union or a registered employers' organisation to be wound up; or
(b) in terms of section 105 has declared that a registered trade
union is not independent.
(2) When the registrar receives a notice from the Labour Court in
terms of subsection (1), the registrar must cancel the registration
of the trade union or employers' organisation by removing its name
from the appropriate register.
(2A) The registrar may cancel the registration of a trade union or
employers’ organisation by removing its name from the appropriate
register if the registrar –
(a) is satisfied that the trade union or employers’ organisation is
not, or has ceased to function as, a genuine trade union or
employers’ organisation, as the case may be; or
(b) has issued a written notice requiring the trade union or
employers’ organisation to comply with sections 98, 99 and 100
within a period of 60 days of the notice and the trade union or
employers’ organisation has, despite the notice, not complied with
those sections.
(2B) The registrar may not act in terms of subsection (2A) unless
the registrar has published a notice in the Government Gazette at
least 60 days prior to such action –
(a) giving notice of the registrar’s intention to cancel the
registration of the trade union or employers’ organisation; and
(b) inviting the trade union or employers’ organisation or any other
interested parties to make written representations as to why the
registration should not be cancelled.
(3) When a trade union's or employers' organisation' s registration
is cancelled, all the rights it enjoyed as a result of being
registered will end.
Part B-Regulation Of Federations Of Trade Unions And Employers'
Organisations
107. Regulation of federations of trade unions or employers'
organisations
(1) Any federation of trade unions that has the promotion of the
interests of employees as a primary object, and any federation of
employers' organisations that has the promotion of the interests of
employers as a primary object, must provide to the registrar-
(a) within three months of its formation, and after that by 31 March
each year, the names and addresses of its members and the number of
persons each member in the federation represents;
(b) within three months of its formation, and after that within 30
days of any appointment or election of its national office-bearers,
the names and work addresses of those office-bearers, even if their
appointment or election did not result in any changes to its
office-bearers;
(c) within three months of its formation, a certified copy of its
constitution and an address in the Republic at which it will accept
service of any document that is directed to it;
(d) within 30 days of any change to its constitution, or of the
address provided to the registrar as required in paragraph (c),
notice of that change; and
(e) within 14 days after it has resolved to wind up, a copy of that
resolution.
(2) Service of any document directed to a federation of trade unions
or a federation of employers' organisations at the address most
recently provided to the registrar will be, for all purposes,
service of that document on that federation.
(3) The registrar must remove from the appropriate register the name
of any federation that the registrar believes has been wound up or
sequestrated.
Part C-Registrar Of Labour Relations
108. Appointment of registrar of labour relations
(1) The Minister must designate an officer of the Department of
Labour as the registrar of labour relations to perform the functions
conferred on the registrar by or in terms of this Act.
(2)
(a) The Minister may designate any number of officers in the
Department as deputy registrars of labour relations to assist the
registrar to perform the functions of registrar in terms of this
Act.
(b) A deputy registrar may exercise any of the functions of the
registrar that have been generally or specifically delegated to the
deputy.
(3) The deputy registrar of labour relations or if there is more
than one, the most senior of them, will act as registrar whenever-
(a) the registrar is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
registrar; or
(b) the office of registrar is vacant.
109. Functions of registrar
(1) The registrar must keep-
(a) a register of registered trade unions;
(b) a register of registered employers' organisations;
(c) a register of federations of trade unions containing the names
of the federations whose constitutions have been submitted to the
registrar;
(d) a register of federations of employers' organisations containing
the names of the federations whose constitutions have been submitted
to the registrar; and
(e) a register of councils.
(2) Within 30 days of making an entry in, or deletion from, a
register, the registrar must give notice of that entry or deletion
in the Government Gazette.
(3) The registrar, on good cause shown, may extend or condone late
compliance with any of the time periods established in this Chapter,
except the period within which a person may note an appeal against a
decision of the registrar.
(4) The registrar must perform all the other functions conferred on
the registrar by or in terms of this Act.
110. Access to information
(1) Any person may inspect any of the following documents in the
registrar's office-
(a) the registers of registered trade unions, registered employers
organisations, federations of trade unions, federations of
employers' organisations and councils;
(b) the certificates of registration and the registered
constitutions of registered trade unions, registered employers'
organisations, and councils, and the constitutions of federations of
trade unions and federations of employers' organisations; and
(c) the auditor's report in so far as it expresses an opinion on the
matters referred to in section 98(2)(b)(ii).
(2) The registrar must provide a certified copy of, or extract from,
any of the documents referred to in subsection (1) to any person who
has paid the prescribed fee.
(3) Any person who is a member, office-bearer or official of a
registered trade union or of a registered employers' organisation,
or is a member of a party to a council, may inspect any document
that has been provided to the registrar in compliance with this Act
by that person's registered trade union, registered employers'
organisation or council.
(4) The registrar must provide a certified copy of, or extract from,
any document referred to in subsection (3) to any person who has a
right in terms of that subsection to inspect that document and who
has paid the prescribed fee.
(5) The registrar must provide any of the following information to
any person free of charge –
(a) the names and work addresses of persons who are national
office-bearers of any registered trade union, registered employers'
organisation, federation or council;
(b) the address in the Republic at which any registered trade union,
registered employers' organisation, federation or council will
accept service of any document that is directed to it; and
(c) any of the details of a federation of trade unions or a
federation of employers' organisations referred to in section
107(l)(a), (c), and (e).
Part D -Appeals From Registrar's Decision
111. Appeals from registrar's decision
(1) Within 30 days of the written notice of a decision of the
registrar, any person who is aggrieved by the decision may demand in
writing that the registrar provide written reasons for the decision.
(2) The registrar must give the applicant written reasons for the
decision within 30 days of receiving a demand in terms of subsection
(1).
(3) Any person who is aggrieved by a decision of the registrar may
appeal to the Labour Court against that decision, within 60 days of-
(a) the date of the registrar's decision; or
(b) if written reasons for the decision are demanded, the date of
those reasons.
(4) The Labour Court, on good cause shown, may extend the period
within which a person may note an appeal against a decision of the
registrar.
CHAPTER VII
DISPUTE RESOLUTION
Part A-Commission For Conciliation, Mediation And Arbitration
112. Establishment of Commission for Conciliation, Mediation and
Arbitration
The Commission for Conciliation, Mediation and Arbitration is hereby
established as a juristic person.
113. Independence of Commission
The Commission is independent of the State, any political party,
trade union, employer, employers' organisation, federation of trade
unions or federation of employers' organisations.
114. Area of jurisdiction and offices of Commission
(1) The Commission has jurisdiction in all the provinces of the
Republic.
(2) The Minister, after consulting the governing body, must
determine the location for the Commission's head office.
(3) The Commission must maintain an office in each province of the
Republic and as many local offices as it considers necessary.
115. Functions of Commission
(1) The Commission must-
(a) attempt to resolve, through conciliation, any dispute referred
to it in terms of this Act;
(b) if a dispute that has been referred to it remains unresolved
after conciliation, arbitrate the dispute if-
(i) this Act requires arbitration and any party to the dispute has
requested that the dispute be resolved through arbitration; or
(ii) all the parties to a dispute in respect of which the Labour
Court has jurisdiction consent to arbitration under the auspices of
the Commission;
(c) assist in the establishment of workplace forums in the manner
contemplated in Chapter V; and
(d) compile and publish information and statistics about its
activities.
(2) The Commission may-
(a) if asked, advise a party to a dispute about the procedure to
follow in terms of this Act; 21
(b) if asked, assist a party to a dispute to obtain legal advice,
assistance or representation; 22
(c) offer to resolve a dispute that has not been referred to the
Commission through conciliation; 23
(cA) make rules –
(i) to regulate, subject to Schedule 3, the proceedings at its
meetings and at the meetings of any committee of the Commission;
(ii) regulating the practice and procedure of the essential services
committee;
(iii) regulating the practice and procedure –
(aa) for any process to resolve a dispute through conciliation;
(bb) at arbitration proceedings; and
(iv) determining the amount of any fee that the Commission may
charge under section 147, and regulating the payment of such a fee
in detail;
(d) [Deleted]
(e) [Deleted]
(f) conduct, oversee or scrutinise any election or ballot of a
registered trade union or registered employers’ organisation if
asked to do so by that trade union or employers’ organisation;
(g) publish guidelines in relation to any matter dealt with in this
Act;
(h) conduct and publish research into matters relevant to its
functions; and
(i) [Deleted]
(2A) The Commission may make rules regulating –
(a) the practice and procedure in connection with the resolution of
a dispute through conciliation or arbitration;
(b) the process by which conciliation is initiated, and the form,
content and use of that process;
(c) the process by which arbitration or arbitration proceedings are
initiated, and the form, content and use of that process;
(d) the joinder of any person having an interest in the dispute in
any conciliation and arbitration proceedings;
(e) the intervention of any person as an applicant or respondent in
conciliation or arbitration proceedings;
(f) the amendment of any citation and the substitution of any party
for another in conciliation or arbitration proceedings;
(g) the hours during which offices of the Commission will be open to
receive any process;
(h) any period that is not to be counted for the purpose of
calculating time or periods for delivering any process or notice
relating to any proceedings;
(i) the forms to be used by parties and the Commission;
(j) the basis on which a commissioner may make any order as to costs
in any arbitration;
(k) the right of any person or category of persons to represent any
party in any conciliation or arbitration proceedings;
(l) the circumstances in which the Commission may charge a fee in
relation to any conciliation or arbitration proceedings or for any
services the Commission provides; and
(m) all other matters incidental to performing the functions of the
Commission.
(3) If asked, the Commission may provide employees, employers,
registered trade unions, registered employers' organisations,
federations of trade unions, federations of employers' organisations
or councils with advice or training relating to the primary objects
of this Act, including but not limited to –
(a) establishing collective bargaining structures;
(b) designing, establishing and electing workplace forums and
creating deadlock-breaking mechanisms;
(c) the functioning of workplace forums;
(d) preventing and resolving disputes and employees' grievances;
(e) disciplinary procedures;
(f) procedures in relation to dismissals;
(g) the process of restructuring the workplace;
(h) affirmative action and equal opportunity programmes; and
(i) the prevention of sexual harassment in the workplace.
(4) The Commission must perform any other duties imposed, and may
exercise any other powers conferred, on it by or in terms of this
Act and is competent to perform any other function entrusted to it
by any other law.
(5) The governing body's rules of procedure, the terms of
appointment of its members and other administrative matters are
dealt with in Schedule 3.
(6)
(a) A rule made under subsection (2)(cA) or (2A) must be published
in the Government Gazette. The Commission will be responsible to
ensure that the publication occurs.
(b) A rule so made will not have any legal force or effect unless it
has been so published.
(c) A rule so made takes effect from the date of publication unless
a later date is stipulated.
21. See section 148.
22. See section 149.
23. See section 150.
116. Governing body of Commission
(1) The Commission will be governed by the governing body, whose
acts are acts of the Commission.26
(2) The governing body consists of
(a) a chairperson and nine other members, each nominated by NEDLAC
and appointed27 by the Minister to hold office for a period of three
years; and
(b) the director of the Commission, who-
(i) is a member of the governing body only by virtue of having been
appointed director; and
(ii) may not vote at meetings of the governing body.
(3) NEDLAC must nominate
(a) one independent person for the office of chairperson;
(b) three persons proposed by those voting members of NEDLAC who
represent organised labour; and
(c) three persons proposed by those voting members of NEDLAC who
represent organised business;
(d) three persons proposed by those voting members of NEDLAC who
represent the State.
26. See item 4 of Schedule 3 for the governing body's rules of
procedure.
27. See items 1 to 3 of Schedule 3 for the terms of appointment of
members of the governing body.
117. Commissioners of Commission
(1) The governing body must appoint as Commissioners as many
adequately qualified persons as it considers necessary to perform
the functions of commissioners by or in terms of this Act or any
other law.
(2) The governing body-
(a) may appoint each commissioner-
(i) on either a full-time or a part-time basis; and
(ii) to be either a commissioner or a senior commissioner;
(b) must appoint each commissioner for a fixed term determined by
the governing body at the time of appointment;
(c) may appoint a commissioner, who is not a senior commissioner,
for a probationary period; and
(d) when making appointments, must have due regard to the need to
constitute a Commission that is independent and competent and
representative in respect of race and gender.
(3) Any reference in this Act to a commissioner must be interpreted
also to mean a senior commissioner, unless otherwise indicated.
(4) The governing body must determine the commissioners'
remuneration, allowances and any other terms and conditions of
appointment not contained in this section.
(5) A commissioner may resign by giving written notice to the
governing body.
(6) The governing body must prepare a code of conduct for the
commissioners and ensure that they comply with the code of conduct
in performing their functions.
(7) The governing body may remove a commissioner from office for-
(a) serious misconduct;
(b) incapacity; or
(c) a material violation of the Commission's code of conduct.
(8) Each commissioner is responsible to the director for the
performance of the commissioner's functions.
118. Director of Commission
(1) The governing body must appoint, as director of the Commission,
a person who –
(a) is skilled and experienced in labour relations and dispute
resolution; and
(b) has not been convicted of any offence involving dishonesty.
(2) The director must –
(a) perform the functions that are
(i) conferred on the director by or in terms of this Act or by any
other law;
(ii) delegated to the director by the governing body;
(b) manage and direct the activities of the Commission; and
(c) supervise the Commission's staff.
(3) The governing body must determine the director's remuneration,
allowances and any other terms and conditions of appointment not
contained in Schedule 3.
(4) A person appointed director automatically holds the office of a
senior commissioner.
(5) Despite subsection (4), the provisions of section 117, with the
exception of section 117(6), do not apply to the director.
(6) The director, in consultation with the governing body, may
delegate any of the functions of that office, except the functions
mentioned in sections 120 and 138(8), to a commissioner.
119. Acting director of Commission
(1) The chairperson of the governing body may appoint any suitable
person to act as director whenever –
(a) the director is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
director; or
(b) the office of director is vacant.
(2) Only a senior commissioner may be appointed as acting director.
(3) An acting director is competent to exercise and perform any of
the powers and functions of the director.
120. Staff of Commission
(1) The director may appoint staff after consulting the governing
body.
(2) The governing body must determine the remuneration and
allowances and any other terms and conditions of appointment of
staff members.
121. Establishment of committees of Commission
(1) The governing body may establish committees to assist the
Commission.
(2) A committee may consist of any combination of the following
persons-
(a) a member of the governing body;
(b) the director;
(c) a commissioner;
(d) a staff member of the Commission; and
(e) any other person.
(3) The governing body must determine the remuneration and
allowances and any other terms and conditions of appointment of
committee members referred to in subsection (2)(e).
(4) The governing body may at any time vary or set aside a decision
of a committee.
(5) The governing body may dissolve any committee.
122. Finances of Commission
(1) The Commission will be financed and provided with working
capital from-
(a) the moneys that the Minister, with the agreement of the Minister
of Finance, must allocate to the Commission from public funds at the
commencement of this Act;
(b) the moneys that Parliament may appropriate to the Commission
from time to time;
(c) fees payable to the Commission in terms of this Act;
(d) grants, donations and bequests made to it; and
(e) income earned on the surplus moneys deposited or invested.
(2) The financial year of the Commission begins on I April in each
year and ends on 31 March of the following year, except the first
financial year which begins on the day this Act commences and ends
on the first following 31 March.
(3) In each financial year, at a time determined by the Minister,
the Commission must submit to the Minister a statement of the
Commission's estimated income and expenditure, and requested
appropriation from Parliament, for the following financial year.
123. Circumstances in which Commission may charge fees
(1) The Commission may charge a fee only for-
(a) resolving disputes which are referred to it, In circumstances in
which this Act allows the Commission, or a commissioner, to charge a
fee;
(b) conducting, overseeing or scrutinising any election or ballot at
the request of a registered trade union or employers' organisation;
and
(c) providing advice or training in terms of section 115(3).
(2) The Commission may not charge a fee unless-
(a) the governing body has established a tariff of fees; and
(b) the fee that is charged is in accordance with that tariff.
(3) The Commission must publish the tariff in the Government
Gazette.
124. Contracting by Commission, and Commission working in
association with any person
(1) The governing body may-
(a) contract with any person to do work for the Commission or
contract with an accredited agency to perform, whether for reward or
otherwise, any function of the Commission on its behalf; and
(b) perform any function of the Commission in association with any
person.
(2) Every person with whom the Commission contracts or associates is
bound by the requirement of independence that binds the Commission.
125. Delegation of governing body's powers, functions and duties
(1) The governing body may delegate in writing any of its functions,
other than the functions listed below, to any member of the
governing body, the director, a commissioner, or any committee
established by the Commission. The functions that the governing body
may not delegate are-
(a) appointing the director;
(b) appointing commissioners, or removing a commissioner from
office;
(c) depositing or investing surplus money;
(d) accrediting councils or private agencies, or amending,
withdrawing or renewing their accreditation; or
(e) subsidising accredited councils or accredited agencies.
(2) The governing body may attach conditions to a delegation and may
amend or revoke a delegation at any time.
(3) A function delegated to the director may be performed by any
commissioner or staff member of the Commission authorised by the
director, unless the terms of that delegation prevent the director
from doing so.
(4) The governing body may vary or set aside any decision made by a
person acting in terms of any delegation made in terms of subsection
(1).
(5) The governing body, by delegating any function, is not divested
of any of its powers, nor is it relieved of any function or duty
that it may have delegated. This rule also applies if the director
sub-delegates the performance of a function in terms of subsection
(3).
126. Limitation of liability and limitation on disclosure of
information
(1) In this section, "the Commission" means-
(a) the governing body;
(b) a member of the governing body;
(c) the director;
(d) a commissioner;
(e) a staff member of the Commission;
(f) a member of any committee established by the governing body; and
(g) any person with whom the governing body has contracted to do
work for, or in association with whom it performs a function of, the
Commission.
(2) The Commission is not liable for any loss suffered by any person
as a result of any act performed or omitted in good faith in the
course of exercising the functions of the Commission.
(3) The Commission may not disclose to any person or in any court
any information, knowledge or document that it acquired on a
confidential basis or without prejudice in the course of performing
its functions except on the order of a court.
Part B - Accreditation Of And Subsidy To Councils And Private
Agencies
127. Accreditation of councils and private agencies
(1) Any council or private agency may apply to the governing body in
the prescribed form for accreditation to perform any of the
following functions-
(a) resolving disputes through conciliation; and
(b) arbitrating disputes that remain unresolved after conciliation,
if this Act requires arbitration.
(2) For the purposes of this section, the reference to disputes must
be interpreted to exclude disputes as contemplated in-
(a) sections 16, 21 and 22;28
(b) section 24(2) to (5);29
(c) section 24(6) and (7) and section 26(11);30
(d) section 45;31
(e) section 61(5) to (8) ;32
(f) section 62;33
(g) section 63, 34
(h) section 69 (8) to (10); 35
(i) section 86; 36
(j) section 89; 37
(k) section 94. 38
(3) The governing body may require further information in support
and, for that purpose, may require the applicant to attend one or
more meetings of the governing body.
(4) The governing body may accredit an applicant to perform any
function for which it seeks accreditation, after considering the
application, any further information provided by the applicant and
whether-
(a) the services provided by the applicant meet the Commission's
standards;
(b) the applicant is able to conduct its activities effectively;
(c) the persons appointed by the applicant to perform those
functions will do so in a manner independent of the State, any
political party, trade union,
(d) the persons appointed by the applicant to perform those
functions will be competent to perform those functions and exercise
any associated powers;
(e) the applicant has an acceptable code of conduct to govern the
persons whom it appoints to perform those functions; the applicant
uses acceptable disciplinary procedures to ensure that each person
it appoints to perform those functions will subscribe, and adhere,
to the code of conduct;
(f) the applicant uses acceptable disciplinary procedures to ensure
that each person it appoints to perform those functions will
subscribe, and adhere, to the code of conduct; and
(g) the applicant promotes a service that is broadly representative
of South African society.
(5) If the governing body decides-
(a) to accredit the applicant, the governing body must-
(i) enter the applicant's name in the register of accredited
councils or the register of accredited agencies;
(ii) issue a certificate of accreditation in the applicant's name
stating the period and other terms of accreditation;
(iii) send the certificate to the applicant; and
(iv) [Deleted]
(b) not to accredit the applicant, the governing body must advise
the unsuccessful applicant in writing of its decision.
(5A) The governing body must annually publish a list of accredited
councils and accredited agencies.
(6) The terms of accreditation must state the extent to which the
provisions of each section in Part C of this Chapter apply to the
accredited council or accredited agency.
(7)
(a) Any person may inspect the registers and certificates of
accredited councils and accredited agencies kept in the Commission's
offices.
(b) The Commission must provide a certified copy of, or extract
from, any of the documents referred to in paragraph (a) to any
person who has paid the prescribed fee.
28. These sections deal with disputes about organisational rights.
29. These subsections deal with disputes about collective agreements
where the agreement does not provide for a procedure, the procedure
is inoperative or any party frustrates the resolution of the
dispute.
30. These subsections deal with disputes about agency shops and
closed shops.
31. This section deals with disputes about determinations made by
the Minister in respect of proposals made by a statutory council.
32. These subsections deal with disputes about the interpretation or
application of collective agreements of a council whose registration
has been cancelled.
33. This section deals with disputes about the demarcation of
sectors and areas of councils.
34. This section deals with disputes about the interpretation or
application of Parts C to IF of Chapter Ill. Part C deals with
bargaining councils, Part D with bargaining councils in the public
service, Part E with statutory councils and Part IF with general
provisions concerning councils.
35. This section concerns disputes about pickets during strikes and
lock-outs.
36. This section deals with disputes about proposals that are the
subject of joint decision-making.
37. This section deals with disputes about the disclosure of
information to workplace forums.
38. This section deals with disputes about the interpretation or
application of Chapter V which deals with workplace forums.
128. General provisions relating to accreditation
(1)
(a) An accredited council or accredited agency may charge a fee for
performing any of the functions for which it is accredited in
circumstances in which this Act allows a commissioner to charge a
fee.
(b) A fee charged in terms of paragraph (a) must be in accordance
with the tariff of fees determined by the Commission.
(2)
(a) An accredited council, accredited agency, or any person engaged
by either of them to perform the functions for which it has been
accredited, is not liable for any loss suffered by any person as a
result of any act performed or omitted in good faith in the course
of exercising those functions.
(b) An accredited council, accredited agency, or any person engaged
by either of them to perform the functions for which it has been
accredited, may not disclose to any person or in any court any
information, knowledge or document that it or that person acquired
on a confidential basis or without prejudice in the course of
performing those functions except on the order of a court.
(3)
(a)
(i) An accredited council may confer on any person appointed by it
to resolve a dispute, the powers of a commissioner in terms of
section 142, read with the changes required by the context.
(ii) For this purpose, any reference in that section to the director
must be read as a reference to the secretary of the bargaining
council.
(b) An accredited private agency may confer on any person appointed
by it to resolve a dispute, the posers of a commissioner in terms of
section 42(1)(a) to (e), (2) and (7) to (9), read with the changes
required by the context.
129. Amendment of accreditation
(1) An accredited council or accredited agency may apply to the
governing body in the prescribed form to amend its accreditation.
(2) The governing body must treat the application as an application
in terms of section 127.
130. Withdrawal of accreditation
If an accredited council or accredited agency fails to comply to a
material extent with the terms of its accreditation, the governing
body may withdraw its accreditation after having given reasonable
notice of the withdrawal to that council or accredited agency.
131. Application to renew accreditation
(1) An accredited council or accredited agency may apply to the
governing body in the prescribed form to renew its accreditation
either in the current or in an amended form.
(2) The governing body must treat the application for renewal as an
application in terms of section 127.
132. Subsidy to council or private agency
(1)
(a) Any council may apply to the governing body in the prescribed
form for a subsidy for performing any dispute resolution functions
that the council is required to perform in terms of this Act, and
for training persons to perform those functions.
(b) Any accredited agency, or a private agency that has applied for
accreditation, may apply to the governing body in the prescribed
form for a subsidy for performing any dispute resolution functions
for which it is accredited or has applied for accreditation; and for
training persons to perform those functions.
(2) The governing body may require further information in support of
the application and, for that purpose, may require the applicant to
attend one or more meetings of the governing body.
(3) The governing body may grant a subsidy to the applicant after
considering the application, any further information provided by the
applicant and-
(a) the need for the performance by the applicant of the functions
for which it is accredited;
(b) the extent to which the public uses the applicant to perform the
functions for which it is accredited;
(c) the cost to users for the performance by the applicant of the
functions for which it is accredited;
(d) the reasons for seeking the subsidy;
(e) the amount requested; and the applicant's ability to manage its
financial affairs in accordance with established accounting
practice, principles and procedures.
(4) If the governing body decides-
(a) to grant a subsidy to the applicant, the governing body must-
(i) notify the applicant in writing of the amount, duration and the
terms of the subsidy; and
(ii) as soon as practicable after the decision, publish the written
notice in the Government Gazette; or
(b) not to grant a subsidy to the applicant, the governing body must
advise the unsuccessful applicant in writing of its decision.
(5) A subsidy granted in terms of subsection (4)(a)-
(a) may not be paid to a council or private agency unless it has
been accredited; and
(b) lapses at the end of the Commission's financial year within
which it was granted.
(6)
(a) Any person may inspect a written notice referred to in
subsection (4)(a) in the Commission's offices.
(b) The Commission must provide a certified copy of, or extract
from, any written notice referred to in paragraph (a) to any person
who has paid the prescribed fee.
(7) If an accredited council or accredited agency fails to comply to
a material extent with the terms of its subsidy, the governing body
may withdraw the subsidy after having given reasonable notice of the
withdrawal to that council or agency.
(8)
(a) An accredited council or accredited agency that has been granted
a subsidy may apply to the governing body in the prescribed form to
renew its subsidy, either in the current or in an amended form and
amount.
(b) The governing body must treat the application for renewal as an
application in terms of subsections (1) to (4).
Part C-Resolution Of Disputes Under Auspices Of Commission
133. Resolution of disputes under auspices of Commission
(1) The Commission must appoint a commissioner to attempt to resolve
through conciliation-
(a) any dispute referred to it in terms of section 134; and
(b) any other dispute that has been referred to it in terms of this
Act.
(2) If a dispute remains unresolved after conciliation, the
Commission must arbitrate the dispute if -
(a) this Act requires the dispute to be arbitrated and any party to
the dispute has requested that the dispute be resolved through
arbitration; or
(b) all the parties to the dispute in respect of which the Labour
Court has jurisdiction consent in writing to arbitration under the
auspices of the Commission.
134. Disputes about matters of mutual interest
(1) Any party to a dispute about a matter of mutual interest may
refer the dispute in writing to the Commission, if the parties to
the dispute are-
(a) on the one side-
(i) one or more trade unions;
(ii) one or more employees; or 2 one or more trade unions and one or
more employees; and
(b) on the other side –
(i) one or more employers' organisations;
(ii) one or more employers; or
(iii) one or more employers' organisations and one or more
employers.
(2) The party who refers the dispute to the Commission must satisfy
it that a copy of the referral has been served on all the other
parties to the dispute.
135. Resolution of disputes through conciliation
(1) When a dispute has been referred to the Commission, the
Commission must appoint a commissioner to attempt to resolve it
through conciliation.
(2) The appointed commissioner must attempt to resolve the dispute
through conciliation within 30 days of the date the Commission
received the referral: However the parties may agree to extend the
30-day period.
(3) The commissioner must determine a process to attempt to resolve
the dispute, which may include
(a) mediating the dispute;
(b) conducting a fact-finding exercise; and
(c) making a recommendation to the parties, which may be in the form
of an advisory arbitration award.
(3A) If a single commissioner has been appointed in terms of
subsection (1), in respect or more than one dispute involving the
same parties, that commissioner may consolidate the conciliation
proceeding so that all the disputes concerned may be dealt with in
the same proceedings.
(4) [Deleted]
(5) When conciliation has failed, or at the end of the 30-day period
or any further period agreed between the parties-
(a) the commissioner must issue a certificate stating whether or not
the dispute has been resolved;
(b) the Commission must serve a copy of that certificate on each
party to the dispute or the person who represented a party in the
conciliation proceedings; and
(c) the commissioner must file the original of that certificate with
the Commission.
(6)
(a) If a dispute about a matter of mutual interest has been referred
to the Commission and the parties to the dispute are engaged in an
essential service then, despite subsection (1), the parties may
consent within seven days of the date the Commission received the
referral-
(i) to the appointment of a specific commissioner by the Commission
to attempt to resolve the dispute through conciliation; and
(ii) to that commissioner's terms of reference.
(b) If the parties do not consent to either of those matters within
the seven-day period, the Commission must as soon as possible-
(i) appoint a commissioner to attempt to resolve the dispute; and
(ii) determine the commissioner's terms of reference.
136. Appointment of commissioner to resolve dispute through
arbitration
(1) If this Act requires a dispute to be resolved through
arbitration, the Commission must appoint a commissioner to arbitrate
that dispute, if-
(a) a commissioner has issued a certificate stating that the dispute
remains unresolved; and
(b) within 90 days after the date on which that certificate was
issued, any party to the dispute has requested that the dispute be
resolved through arbitration. However, the Commission on good cause
shown, may condone a party’s non-observance of that timeframe and
allow a request for arbitration filed by the party after the expiry
of the 90-day period.
(2) A commissioner appointed in terms of subsection (1) may be the
same commissioner who attempted to resolve the dispute through
conciliation.
(3) Any party to the dispute, who wants to object to the arbitration
also being conducted by the commissioner who had attempted to
resolve the dispute through conciliation, may do so by filing an
objection in that regard with the Commission within seven days after
the date on which the commissioner’s certificate was issued, and
must satisfy the Commission that a copy of the objection has been
served on all the other parties to the dispute.
(4) When the Commission receives an objection it must appoint
another commissioner to resolve the dispute by arbitration.
(5)
(a) The parties to a dispute may request the Commission, in
appointing a commissioner in terms of subsection (1) or (4), to take
into account their stated preference, to the extent that this is
reasonably practicable in all the circumstances.
(b) The stated preference contemplated in paragraph (a) must-
(i) be in writing;
(ii) list no more than five commissioners;
(iii) state that the request is made with the agreement of all the
parties to the dispute; and
(iv) be submitted within 48 hours of the date of the certificate
referred to in subsection (1)(a).
(6) If the circumstances contemplated in subsection (1) exist and
the parties to the dispute are engaged in an essential service, then
the provisions of section 135 (6) apply, read with the changes
required by the context, to the appointment of a commissioner to
resolve the dispute through arbitration.
137. Appointment of senior commissioner to resolve dispute through
arbitration
(1) In the circumstances contemplated in section 136(l), any party
to the dispute may apply to the director to appoint a senior
commissioner to attempt to resolve the dispute through arbitration.
(2) When considering whether the dispute should be referred to a
senior commissioner, the director must hear the party making the
application, any other party to the dispute and the commissioner who
conciliated the dispute.
(3) The director may appoint a senior commissioner to resolve the
dispute through arbitration, after having considered-
(a) the nature of the questions of law raised by the dispute;
(b) the complexity of the dispute;
(c) whether there are conflicting arbitration awards that are
relevant to the dispute; and
(d) the public interest.
(4) The director must notify the parties to the dispute of the
decision and-
(a) if the application has been granted, appoint a senior
commissioner to arbitrate the dispute; or
(b) if the application has been refused, confirm the appointment of
the commissioner initially appointed, subject to section 136(4).
(5) The director's decision is final and binding.
(6) No person may apply to any court of law to review the director's
decision until the dispute has been arbitrated.
138. General provisions for arbitration proceedings
(1) The commissioner may conduct the arbitration in a manner that
the commissioner considers appropriate in order to determine the
dispute fairly and quickly, but must deal with the substantial
merits of the dispute with the minimum of legal formalities.
(2) Subject to the discretion of the commissioner as to the
appropriate form of the proceedings, a party to the dispute may give
evidence, call witnesses, question the witnesses of any other party,
and address concluding arguments to the commissioner.
(3) If all the parties consent, the commissioner may suspend the
arbitration proceedings and attempt to resolve the dispute through
conciliation.
(4) In any arbitration proceedings, a party to the dispute may
appear in person or be represented only by –
(a) a legal practitioner;
(b) a director or employee of the party; or
(c) any member, office bearer or official of that party’s registered
trade union or registered employers’ organisation.
(5) If a party to the dispute fails to appear in person or to be
represented at the arbitration proceedings, and that party –
(a) had referred the dispute to the Commission, the commissioner may
dismiss the matter; or
(b) had not referred the dispute to the Commission, the commissioner
may –
(i) continue with the arbitration proceedings in the absence of that
party; or
(ii) adjourn the arbitration proceedings o a later date.
(6) The commissioner must take into account any code of good
practice that has been issued by NEDLAC or guidelines published by
the Commission in accordance with the provisions of this Act that is
relevant to a matter being considered in the arbitration
proceedings.
(7) Within 14 days of the conclusion of the arbitration proceedings-
(a) the commissioner must issue an arbitration award with brief
reasons, signed by that commissioner;
(b) the Commission must serve a copy of that award on each party to
the dispute or the person who represented a party in the arbitration
proceedings; and
(c) the Commission must file the original of that award with the
registrar of the Labour Court.
(8) On good cause shown, the director may extend the period within
which the arbitration award and the reasons are to be served and
filed.
(9) The commissioner may make any appropriate arbitration award in
terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement;
(b) that gives effect to the provisions and primary objects of this
Act;
(c) that includes, or is in the form of, a declaratory order.
(10) The commissioner may make an order for the payment of costs
according to the requirements of law and fairness in accordance with
rules made by the Commission in terms of section 115(2A)(j) and
having regard to –
(a) any relevant Code of Good Practice issued by NEDLAC in terms of
section 203; or
(b) any relevant guideline issued by the Commission.
139. Special provisions for arbitrating disputes in essential
services
(1) If a dispute about a matter of mutual interest proceeds to
arbitration and any party is engaged in an essential service-
(a) within 30 days of the date of the certificate referred to in
section 136(l)(a), or within a further period agreed between the
parties to the dispute, the commissioner must complete the
arbitration and issue an arbitration award with brief reasons signed
by that commissioner;
(b) the Commission must serve a copy of that award on each party to
the dispute or the person who represented a party in the arbitration
proceedings; and
(c) the Commission must file the original of that award with the
registrar of the Labour Court.
(2) The commissioner may not include an order for costs in the
arbitration award unless a party, or the person who represented the
party in the arbitration proceedings, acted in a frivolous or
vexatious manner in its conduct during the arbitration proceedings.
140. Special provisions for arbitrations about dismissals for
reasons related to conduct or capacity
(1) [Deleted]
(2) If, in terms of section 194(l), the commissioner finds that the
dismissal is procedurally unfair, the commissioner may charge the
employer an arbitration fee.
141. Resolution of disputes if parties consent to arbitration under
auspices of Commission
(1) If a dispute remains unresolved after conciliation, the
Commission must arbitrate the dispute if a party to the dispute
would otherwise be entitled to refer the dispute to the Labour Court
for adjudication and, instead, all the parties agree in writing to
arbitration under the auspices of the Commission.
(2) The arbitration proceedings must be conducted in accordance with
the provisions of sections 136, 137 and 138, read with the changes
required by the context.
(3) The arbitration agreement contemplated in subsection (1) may be
terminated only with the written consent of all the parties to that
agreement, unless the agreement itself provides otherwise.
(4) Any party to the arbitration agreement may apply to the Labour
Court at any time to vary or set aside that agreement, which the
Court may do on good cause.
(5)
(a) If any party to an arbitration agreement commences proceedings
in the Labour Court against any other party to that agreement about
any matter that the parties agreed to refer to arbitration, any
party to those proceedings may ask the Court-
(i) to stay those proceedings and refer the dispute to arbitration;
or
(ii) with the consent of the parties and where it is expedient to do
so, continue with the proceedings with the Court acting as
arbitrator, in which case the Court may only make an order
corresponding to the award that an arbitrator could have made.
(b) If the Court is satisfied that there is sufficient reason for
the dispute to be referred to arbitration in accordance with the
arbitration agreement, the Court may stay those proceedings, on any
conditions.
(6) If the provisions of subsection (1) apply, the commissioner may
make an award that the Labour Court could have made.
142. Powers of commissioner when attempting to resolve disputes
(1) A commissioner who has been appointed to attempt to resolve a
dispute may-
(a) subpoena for questioning any person who may be able to give
information or whose presence at the conciliation or arbitration
proceedings may help to resolve the dispute;
(b) subpoena any person who is believed to have possession or
control of any book, document or object relevant to the resolution
of the dispute, to appear before the commissioner to be questioned
or to produce that book, document or object;
(c) call, and if necessary subpoena, any expert to appear before the
commissioner to give evidence relevant to the resolution of the
dispute;
(d) call any person present at the conciliation or arbitration
proceedings or who was or could have been subpoenaed for any purpose
set out in this section, to be questioned about any matter relevant
to the dispute;
(e) administer an oath or accept an affirmation from any person
called to give evidence or be questioned;
(f) at any reasonable time, but only after obtaining the necessary
written authorisation-
(i) enter and inspect any premises on or in which any book, document
or object, relevant to the resolution of the dispute is to be found
or is suspected on reasonable grounds of being found there; and
(ii) examine, demand the production of, and seize any book, document
or object that is on or in those premises and that is relevant to
the resolution of the dispute; and
(iii) take a statement in respect of any matter relevant to the
resolution of the dispute from any person on the premises who is
willing to make a statement; and
(g) inspect, and retain for a reasonable period, any of the books,
documents or objects that have been produced to, or seized by, the
Commission.
(2) A subpoena issued for any purpose in terms of subsection (1)
must be signed by the director and must-
(a) specifically require the person named in it to appear before the
commissioner;
(b) sufficiently identify the book, document or object to be
produced; and
(c) state the date, time and place at which the person is to appear.
(3) The written authorisation referred to in subsection (1)(f)-
(a) if it relates to residential premises, may be given only by a
judge of the Labour Court and with due regard to section 13 of the
Constitution, and then only on the application of the commissioner
setting out under oath or affirmation the following information-
(i) the nature of the dispute;
(ii) the relevance of any book, document or object to the resolution
of the dispute;
(iii) the presence of any book, document or object on the premises;
(iv) the need to enter, inspect or seize the book, document or
object; and
(b) in all other cases, may be given by the director.
(4) The owner or occupier of any premises that a commissioner is
authorised to enter and inspect, and every person employed by that
owner or occupier, must provide any facilities that a commissioner
requires to enter those premises and to carry out the inspection or
seizure.
(5) The commissioner must issue a receipt for any book, document or
object seized in terms of subsection (4).
(6) The law relating to privilege, as it applies to a witness
subpoenaed to give evidence or to produce any book, document or
object before a court of law, applies equally to the questioning of
any person or the production or seizure of any book, document or
object in terms of this section.
(7)
(a) The Commission must pay the prescribed witness fee to each
person who appears before a commissioner in response to a subpoena
issued by the commissioner.
(b) Any person who requests the Commission to issue a subpoena must
pay the prescribed witness fee too each person who appears before a
commissioner in response to the subpoena and who remains in
attendance until excused by the commissioner.
(c) The Commission may on good cause shown waive the requirement in
paragraph (b) and pay to the witness the prescribed witness fee.
(8) A person commits contempt of the Commission-
(a) if, after having been subpoenaed to appear before the
commissioner, the person without good cause does not attend at the
time and place stated in the subpoena;
(b) if, after having appeared in response to a subpoena, that person
fails to remain in attendance until excused by the commissioner;
(c) by refusing to take the oath or to make an affirmation as a
witness when a commissioner so requires;
(d) by refusing to answer any question fully and to the best of that
person's knowledge and belief subject to subsection (6);
(e) if the person, without good cause, fails to produce any book,
document or object specified in a subpoena to a commissioner;
(f) if the person willfully hinders a commissioner in performing any
function conferred by or in terms of this Act;
(g) if the person insults, disparages or belittles a commissioner,
or prejudices or improperly influences the proceedings or improperly
anticipates the commissioner's award;
(h) by wilfully interrupting the conciliation or arbitration
proceedings or misbehaving in any other manner during those
proceedings;
(i) by doing anything ease in relation to the Commission which, if
done in relation to a court of law, would have been contempt of
court.
(9)
(a) The commissioner may make a finding that a party is in contempt
of the Commission for any of the reasons set out in subsection (8).
(b) The commissioner may refer the finding, together with the record
of proceedings, to the Labour Court for its decision in terms of
subsection (11).
(10) Before making a decision in terms of subsection (11), the
Labour Court –
(a) must subpoena any person found in contempt to appear before it
on a date determined by the Court;
(b) may subpoena any other person to appear before it on a date
determined by the Court; and
(c) may make any order that it deems appropriate, including an order
in the case of a person who is not a legal practitioner that the
person’s right to represent a party in the Commission and the Labour
Court be suspended.
(11) The Labour Court may confirm, vary or set aside the finding of
a commissioner.
(12) If any person fails to appear before the Labour Court pursuant
to a subpoena issued in terms of subsection (10(a), the Court may
make any order that it deems appropriate in the absence of that
person.
142A. Making settlement agreement arbitration award
(1) The Commission may, by agreement between the parties or on
application by a party, make any settlement agreement in respect of
any dispute that has been referred to the Commission, an arbitration
award.
(2) For the purposes of subsection (1), a settlement agreement is a
written agreement in settlement of a dispute that a party has the
right to refer to arbitration or to the Labour Court, excluding a
dispute that a party is entitled to refer to arbitration in terms of
either section 74(4) or 75(7).
143. Effect of arbitration awards
(1) An arbitration award issued by a commissioner is final and
binding and it may be enforced as if it were an order of the Labour
Court, unless it is an advisory arbitration award.
(2) If an arbitration award orders a party to pay a sum of money,
the amount earns interest from the date of the award at the same
rate as the rate prescribed from time to time in respect of a
judgment debt in terms of section 2 of the Prescribed Rate of
Interest Act, 1975 (Act No. 55 of 1975), unless the award provides
otherwise.
(3) An arbitration award may only be enforced in terms of subsection
(1) if the director has certified that the arbitration award is an
award contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award that order
the performance of an act, other than the payment of an amount of
money, any other party to the award may enforce it by way of
contempt proceedings instituted in the Labour Court.
144. Variation and rescission of arbitration awards and rulings
Any commissioner who has issued an arbitration award or ruling or
any other commissioner appointed by the director for that purpose,
may on that commissioner's own accord or, on the application of any
affected party, vary or rescind an arbitration award or ruling –
(a) erroneously sought or erroneously made in the absence of any
party affected by that award;
(b) in which there is an ambiguity, or an obvious error or omission,
but only to the extent of that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings.
145. Review of arbitration awards
(1) Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
(a) within six weeks of the date that the award was served on the
applicant, unless the alleged defect involves corruption; or
(b) if the alleged defect involves corruption, within six weeks of
the date that the applicant discovers the corruption.
(1A) The Labour Court may on good cause shown condone the late
filing of an application in terms of subsection (1)
(2) A defect referred to in subsection (1), means-
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the
commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the
arbitration proceedings; or
(iii) exceeded the commissioner's powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the award pending
its decision.
(4) If the award is set aside, the Labour Court may-
(a) determine the dispute in the manner it considers appropriate; or
(b) make any order it considers appropriate about the procedures to
be followed to determine the dispute.
146. Exclusion of Arbitration Act
The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to
any arbitration under the auspices of the Commission.
147. Performance of dispute resolution functions by Commission in
exceptional circumstances
(1)
(a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the dispute is about the
interpretation or application of a collective agreement, the
Commission may-
(i) refer the dispute for resolution in terms of the procedures
provided for in that collective agreement; or
(ii) appoint a commissioner or, if one has been appointed, confirm
the appointment of the commissioner, to resolve the dispute in terms
of this Act.
(b) The Commission may charge the parties to a collective agreement
a fee for performing the dispute resolution functions if-
(i) their collective agreement does not provide a procedure as
required by section 24(1); 39 or
(ii) the procedure provided in the collective agreement is not
operative.
(c) The Commission may charge a party to a collective agreement a
fee if that party has frustrated the resolution of the dispute.
(2)
(a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the parties to the dispute are
parties to a council, the Commission may-
(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed, confirm
the appointment of the commissioner, to resolve the dispute in terms
of this Act.
(b) The Commission may charge the parties to a council a fee for
performing the dispute resolution functions if the council's dispute
resolution procedures are not operative.
(3)
(a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the parties to the dispute fall
within the registered scope of a council and that one or more
parties to the dispute are not parties to the council, the
Commission may-
(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed, confirm
the appointment of the commissioner, to resolve the dispute in terms
of this Act.
(b) The Commission may charge the parties to a council a fee for
performing the dispute resolution functions if the council's dispute
resolution procedures are not operative.
(4)
(a) If a dispute has been referred to the Commission and not all the
parties to the dispute fall within the registered scope of a council
or fall within the registered scope of two or more councils, the
Commission must resolve the dispute in terms of this Act.
(b) In the circumstances contemplated in paragraph (a), the
Commission has exclusive Jurisdiction to resolve that dispute.
(5)
(a) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the dispute ought to have been
referred to an accredited agency, the Commission may-
(i) refer the dispute to the accredited agency for resolution; or
(ii) appoint a commissioner to resolve the dispute in terms of this
Act.
(b) The Commission may-
(i) charge the accredited agency a fee for performing the dispute
resolution functions if the accredited agency's dispute resolution
procedures are not operative; and
(ii) review the continued accreditation of that agency.
(6) If at any stage after a dispute has been referred to the
Commission, it becomes apparent that the dispute ought to have been
resolved through private dispute resolution in terms of a private
agreement between the parties to the dispute, the Commission may-
(a) refer the dispute to the appropriate person or body for
resolution through private dispute resolution procedures; or
(b) appoint a commissioner to resolve the dispute in terms of this
Act.
(7) Where the Commission refers the dispute in terms of this section
to a person or body other than a commissioner the date of the
Commission's initial receipt of the dispute will be deemed to be the
date on which the Commission referred the dispute elsewhere.
(8) The Commission may perform any of the dispute resolution
functions of a council or an accredited agency appointed by the
council if the council or accredited agency fails to perform its
dispute resolution functions in circumstances where, in law, there
is an obligation to perform them.
(9) For the purposes of subsections (2) and (3), a party to a
council includes the members of a registered trade union or
registered employers’ organisation that is a party to the council.
39. Section 24(l) states that every collective agreement must
provide for a procedure to resolve any dispute about the
interpretation or application of the collective agreement.
148. Commission may provide advice
(1) If asked, the Commission may advise any party to a dispute in
terms of this Act about the procedure to be followed for the
resolution of that dispute.
(2) In response to a request for advice, the Commission may provide
the advice that it considers appropriate.
149. Commission may provide assistance
(1) If asked, the Commission may assist an employee or employer who
is a party to a dispute –
(a) together with the Legal Aid Board40 to arrange for advice or
assistance by a legal practitioner;
(b) together with the Legal Aid Board, to arrange for a legal
practitioner-
(i) to attempt to avoid or settle any proceedings being instituted
against an employee or employer in terms of this Act;
(ii) to attempt to settle any proceedings instituted against an
employee or employer in terms of this Act;
(iii) to institute on behalf of the employee or employer any
proceedings in terms of this Act;
(iv) to defend or oppose on behalf of the employee or employer any
proceedings instituted against the employee or employer in terms of
this Act; or
(c) by providing any other form of assistance that the Commission
considers appropriate.
(2) The Commission may provide the assistance referred to in
subsection (1) after having considered-
(a) the nature of the questions of law raised by the dispute;
(b) the complexity of the dispute;
(c) whether there are conflicting arbitration awards that are
relevant to the dispute; and
(d) the public interest.
(3) As soon as practicable after having received a request in terms
of subsection (1), but not later than 30 days of the date the
Commission received the request, the Commission must advise the
applicant in writing whether or not it will assist the applicant
and, if so, the form that the assistance will take.
40. The Legal Aid Board is established in terms of section 2 of the
Legal Aid Act, 1969 (Act No. 22 of 1969).
150. Commission may offer to resolve dispute through conciliation
(1) If the Commission is aware of a dispute that has not been
referred to it, and if resolution of the dispute would be in the
public interest, the Commission may offer to appoint a commissioner
to attempt to resolve the dispute through conciliation.
(2) The Commission may offer to appoint a commissioner to assist the
parties to resolve through further conciliation a dispute that has
been referred to the Commission or a council and in respect of which
–
(a) a certificate has been issued in terms of section 135(5)(a)
stating that the dispute remains unresolved; or
(b) the period contemplated in section 135(2) has elapsed;
(3) The Commission may appoint a commissioner in terms of subsection
(1) or (2) if all the parties to the dispute consent to that
appointment.
Part D - Labour Court
151. Establishment and status of Labour Court
(1) The Labour Court is hereby established as a court of law and
equity.
(2) The Labour Court is a superior court that has authority,
inherent powers and standing, in relation to matters under its
jurisdiction, equal to that which a court of a provincial division
of the High Court has in relation to the matters under its
jurisdiction.
(3) The Labour Court is a court of record.
152. Composition of Labour Court
(1) The Labour Court consists of-
(a) a Judge President;
(b) a Deputy Judge President; and
(c) as many judges as the President may consider necessary, acting
on the advice of NEDLAC and in consultation with the Minister of
Justice and the Judge President of the Labour Court.
(2) The Labour Court is constituted before a single judge.
(3) The Labour Court may sit in as many separate courts as the
available judges may allow.
153. Appointment of judges of Labour Court
(1)
(a) The President, acting on the advice of NEDLAC and the Judicial
Service Commission provided for in the Constitution of the Republic
of South Africa, 1996 (Act No. 108 of 1996) (in this Part and Part E
called the Judicial Service Commission) and after consultation with
the Minister of Justice, must appoint a Judge President of the
Labour Court.
(b) The President, acting on the advice of NEDLAC and the Judicial
Service Commission and after consultation with the Minister of
Justice and the Judge President of the Labour Court, must appoint
the Deputy Judge President of the Labour Court.
(2) The Judge President and the Deputy Judge President of the Labour
Court-
(a) must be judges of the High Court; and
(b) must have knowledge, experience and expertise in labour law.
(3) The Deputy Judge President must act as Judge President of the
Labour Court whenever the Judge President is unable to do so for any
reason.
(4) The President, acting on the advice of NEDLAC and the Judicial
Service Commission and after consultation with the Minister of
Justice and the Judge President of the Labour Court, may appoint one
or more persons who meet the requirements of subsection (6) as
judges of the Labour Court.
(5) The Minister of Justice, after consultation with the Judge
President of the Labour Court may appoint one or more persons who
meet the requirements of subsection (6) to serve as acting judges of
the Labour Court for such a period as the Minister of Justice in
each case may determine.
(6) A judge of the Labour Court must-
(a)
(i) be a judge of the High Court; or
(ii) be a person who is a legal practitioner; and
(b) have knowledge, experience and expertise in labour law.
154. Tenure, remuneration and terms and conditions of appointment of
Labour Court judges
(1) A judge of the Labour Court must be appointed for a period
determined by the President at the time of appointment.
(2) A judge of the Labour Court may resign by giving written in the
office to the President.
(3)
(a) Any judge of the Labour Court who is also a judge of the High
Court holds office until-
(i) the judge's period of office in the Labour Court ends;
(ii) the judge's resignation takes effect;
(iii) the judge is removed from office;
(iv) the judge ceases to be a judge of the High Court; or
(v) the judge dies.
(b) Any other judge of the Labour Court holds office until-
(i) the judge's period of office ends;
(ii) the judge's resignation takes effect;
(iii) the judge is removed from office; or
(iv) the judge dies.
(4) Neither the tenure of office nor the remuneration and terms and
conditions of appointment applicable to a judge of the High Court in
terms of the Judges' Remuneration and Conditions of Employment Act,
1989 (Act No. 88 of 1989), is affected by that judge's appointment
and concurrent tenure of office as a judge of the Labour Court.
(5)
(a) The remuneration payable to a judge of the Labour Court who is a
person referred to in section 153(6)(a)(ii) must be the same as that
payable to a judge of the High Court.
(b) The terms and conditions of appointment of a judge of the Labour
Court refer-red to in paragraph (a) must be similar to those of a
judge of the High Court.
(6) A person who has been appointed a judge of the Labour Court and
who is not a judge of the High Court may perform the functions of a
judge of the Labour Court only after having taken an oath or made a
solemn affirmation in the prescribed form before the Judge President
of the Labour Court.
(7)
(a) A judge of the Labour Court who is also a judge of the High
Court-
(i) may be removed from the office of judge of the Labour Court only
if that person has first been removed from the office of a judge of
the High Court; and
(ii) upon having been removed as judge of the High Court must be
removed from office as a judge of the Labour Court.
(b) The President, acting on the advice of NEDLAC, and in
consultation with the Minister of Justice and the Judge President of
the Labour Court, may remove any other judge of the Labour Court
from office for misbehaviour or incapacity.
(8) Despite the expiry of the period of a person’s appointment as a
judge of the Labour Court, that person may continue to perform the
functions of a judge of that Court, and will be regarded as such in
all respects, only –
(a) for the purposes of disposing of any proceedings in which that
person has taken part as a judge of that Court and which are still
pending upon the expiry of that person’s appointment or which,
having been so disposed of before or after the expiry of that
person’s appointment, have been re-opened; and
(b) for as long as that person will be necessarily engaged in
connection with the disposal of the proceedings so pending or
re-opened.
(9) The provisions of subsections (2) to (8) apply, read with the
changes required by the context, to acting judges appointed in terms
of section 153(5).
155. Officers of Labour Court
(1) The Minister of Justice, subject to the laws governing the
public service, must appoint the following officers of the Labour
Court-
(a) a person who has experience and expertise in labour law and
administration to be the registrar of the Labour Court; and
(b) one or more deputy registrars and so many other officers of the
Labour Court as the administration of justice requires.
(2)
(a) The officers of the Labour Court, under the supervision and
control of the registrar of that Court must perform the
administrative functions of the Labour Court.
(b) A deputy registrar of the Labour Court may perform any of the
functions of the registrar of that Court that have been delegated
generally or specifically to the deputy registrar.
(3) The deputy registrar of the Labour Court or, if there is more
than one, the most senior will act as registrar of the Labour Court
whenever-
(a) the registrar is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
registrar; or
(b) the office of registrar is vacant.
(4) The officers of the Labour Court must provide secretarial and
administrative assistance to the Rules Board for Labour Courts.
156. Area of jurisdiction and seat of Labour Court
(1) The Labour Court has jurisdiction 'in all the provinces of the
Republic.
(2) The Minister of Justice, acting on the advice of NEDLAC, must
determine the seat of the Labour Court.
(3) The functions of the Labour Court may be performed at any place
in the Republic.
157. Jurisdiction of Labour Court
(1) Subject to the Constitution and section 173, and except where
this Act provides otherwise, the Labour Court has exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act or in terms of any other law are to be determined by the
Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court
in respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from –
(a) employment and from labour relations;
(b) any dispute over the constitutionally of any executive or
administrative act or conduct, or any threatened executive or
administrative act or conduct, by the State in its capacity as an
employer; and
(c) the application of any law for the administration of which the
Minister is responsible.
(3) Any reference to the court in the Arbitration Act, 1965 (Act No.
42 of 1965), must be interpreted as referring to the Labour Court
when an arbitration is conducted under that Act in respect of any
dispute that may be referred to arbitration in terms of this Act.
(4)
(a) The Labour Court may refuse to determine any dispute, other than
an appeal or review before the Court, if the Court is not satisfied
that an attempt has been made to resolve the dispute through
conciliation.
(b) A certificate issued by a commissioner or a council stating that
a dispute remains unresolved is sufficient proof that an attempt has
been made to resolve that dispute through conciliation.
(5) Except as provided in section 158(2), the Labour Court does not
have jurisdiction to adjudicate an unresolved dispute if this Act
requires the dispute to be resolved through arbitration.
158. Powers of Labour Court
(1) The Labour Court may-
(a) make any appropriate order, including
(i) the grant of urgent interim relief;
(ii) an interdict;
(iii) an order directing the performance of any particular act which
order, when implemented, will remedy a wrong and give effect to the
primary objects of this Act;
(iv) a declaratory order;
(v) an award of compensation in any circumstances contemplated in
this Act;
(vi) an award of damages in any circumstances contemplated in this
Act; and
(vii) an order for costs;
(b) order compliance with any provision of this Act;
(c) make any arbitration award or any settlement agreement an order
of the Court;
(d) request the Commission to conduct an investigation to assist the
Court and to submit a report to the Court;
(e) determine a dispute between a registered trade union or
registered employers' organisation, and any one of the members or
applicants for membership thereof, about any alleged non-compliance
with –
(i) the constitution of that trade union or employers' organisation
(as the case may be); or
(ii) section 26(5)(b);
(f) subject to the provisions of this Act, condone the late filing
of any document with, or the late referral of any dispute to, the
Court;
(g) subject to section 145, review the performance or purported
performance of any function provided for in this Act on any grounds
that are permissible in law;
(h) review any decision taken or any act performed by the State in
its capacity as employer, on such grounds as are permissible in law;
(i) hear and determine any appeal in terms of section 35 of the
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and
(j) deal with all matters necessary or incidental to performing its
functions in terms of this Act or any other law.
(1A) For the purposes of subsection (1)(c), a settlement agreement
is a written agreement in settlement of a dispute that a party has
the right to refer to arbitration or to the Labour Court, excluding
a dispute that a party is only entitled to refer to arbitration in
terms of section 22(4), 74(4) or 75(7).
(2) If at any stage after a dispute has been referred to the Labour
Court, it becomes apparent that the dispute ought to have been
referred to arbitration, the Court may-
(a) stay the proceedings and refer the dispute to arbitration; or
(b) with the consent of the parties and if it is expedient to do so,
continue with the proceedings with the Court sitting as an
arbitrator, in which case the Court may only make any order that a
commissioner or arbitrator would have been entitled to make.
(3) The reference to "arbitration" in subsection (2) must be
interpreted to include arbitration-
(a) under the auspices of the Commission;
(b) under the auspices of an accredited council;
(c) under the auspices of an accredited agency;
(d) in accordance with a private dispute resolution procedure; or
(e) if the dispute is about the interpretation or application of a
collective agreement.
(4)
(a) The Labour Court, on its own accord or, at the request of any
party to the proceedings before it may reserve for the decision of
the Labour Appeal Court any question of law that arises in those
proceedings.
(b) A question may be reserved only if it is decisive for the proper
adjudication of the dispute.
(c) the decision of the Labour Appeal Court on any question of law
reserved in terms of paragraph (a), the Labour Court may make any
interim order.
159. Rules Board for Labour Courts and rules for Labour Court
(1) The Rules Board for Labour Courts is hereby established.
(2) The Board consists of-
(a) the Judge President of the Labour Court, who is the chairperson;
(b) the Deputy Judge President of the Labour Court; and
(c) the following persons, to be appointed for a period of three
years by the Minister of Justice, acting on the advice of NEDLAC-
(i) a practising advocate with knowledge, experience and expertise
in labour law;
(ii) a practising attorney with knowledge, experience and expertise
in labour law;
(iii) a person who represents the interests of employees;
(iv) a person who represents the interests of employers; and
(v) a person who represents the interests of the State.
(3) The Board may make rules to regulate the conduct of proceedings
in the Labour Court, including, but not limited to-
(a) the process by which proceedings are brought before the Court,
and the form and content of that process;
(b) the period and process for noting appeals;
(c) the taxation of bills of costs;
(d) after consulting with the Minister of Finance, the fees payable
and the costs and expenses allowable in respect of the service or
execution of any process of the Labour Court, and the tariff of
costs and expenses that may be allowed in respect of that service or
execution; and
(e) all other matters incidental to performing the functions of the
Court, including any matters not expressly mentioned in this
subsection that are similar to matters about which the Rules Board
for Courts of Law may make rules in terms of section 6 of the Rules
Board for Courts of Law Act, 1985 (Act No. 107 of 1985).
(4) The Board may alter or repeal any rule that it makes.
(5) Five members of the Board are a quorum at any meeting of the
Board.
(6) The Board must publish any rules that it makes, alters or
repeals in the Government Gazette.
(7)
(a) A member of the Board who is a judge of the High Court may be
paid an allowance determined in terms of subsection (9) in respect
of the performance of the functions of a member of the Board.
(b) Notwithstanding anything to the contrary in any other law, the
payment, in terms of paragraph (a), of an allowance to a member of
the Board who is a judge of the High Court will be in addition to
any salary or allowances, including allowances for reimbursement of
travelling and subsistence expenses, that is paid to that person in
the capacity of a judge of that Court.
(8) A member of the Board who is not a judge of the High Court nor
subject to the Public Service Act, 1994, will be entitled to the
remuneration, allowances (including allowances for reimbursement of
travelling and subsistence expenses), benefits and privileges
determined in terms of subsection (9).
(9) The remuneration, allowances, benefits and privileges of the
members of the Board –
(a) are determined by the Minister of Justice with the concurrence
of the Minister of Finance;
(b) may vary according to the rank, functions to be performed and
whether office is held in a full-time or part-time capacity; and
(c) may be varied by the Minister of Justice under any law in
respect of any person or category of persons.
(10)
(a) Pending publication in the Government Gazette of rules made by
the Board, matters before the Court will be dealt with in accordance
with such general directions as the Judge President of the Labour
Court, or any other judge or judges of that Court designated by the
Judge President for that purpose, may consider appropriate and issue
in writing;
(b) Those directions will cease to be of force on the date of the
publication of the Board’s rules in the Government Gazette, except
in relation to proceedings already instituted before that date. With
regard to those proceedings, those directions will continue to apply
unless the Judge President of the Labour Court has withdrawn them in
writing.
160. Proceedings of Labour Court to be carried on in open court
(1) The proceedings in the Labour Court must be carried on in open
court.
(2) Despite subsection (1), the Labour Court may exclude the members
of the general public, or specific persons, or categories of persons
from the proceedings in any case where a court of a provincial
division of the High Court could have done so.
161. Representation before Labour Court
In any proceedings before the Labour Court, a party to the
proceedings may appear in person or be represented only by –
(a) a legal practitioner;
(b) a director or employee of the party;
(c) any member, office-bearer or official of that party's registered
trade union or registered employers' organisation;
(d) a designated agent or official of a council; or
(e) an official of the Department of Labour.
162. Costs
(1) The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the
Labour Court may take into account-
(a) whether the matter referred to the Court ought to have been
referred to arbitration in terms of this Act and, if so, the extra
costs incurred in referring the matter to the Court; and
(b) the conduct of the parties-
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.
(3) The Labour Court may order costs against a party to the dispute
or against any person who represented that party in those
proceedings before the Court.
163. Service and enforcement of orders of Labour Court
Any decision, judgment or order of the Labour Court may be served
and executed as if it were a decision, judgment or order of the High
Court.
164. Seal of Labour Court
(1) The Labour Court for use as occasion may require will have an
official seal of a design prescribed by the President by
proclamation in the Government Gazette.
(2) The registrar of the Labour Court must keep custody of the
official seal of the Labour Court.
165. Variation and rescission of orders of Labour Court
The Labour Court, acting of its own accord or on the application of
any affected party may vary or rescind a decision, judgment or order
–
(a) erroneously sought or erroneously granted in the absence of any
party affected by that judgment or order;
(b) in which there is an ambiguity, or an obvious error or omission,
but only to the extent of that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings.
166. Appeals against judgment or order of Labour Court
(1) Any party to any proceedings before the Labour Court may apply
to the Labour Court for leave to appeal to the Labour Appeal Court
against any final judgment or final order of the Labour Court.
(2) If the application for leave to appeal is refused, the applicant
may petition the Labour Appeal Court for leave to appeal.
(3) Leave to appeal may be granted subject to any conditions that
the Court concerned may determine.
(4) Subject to the Constitution and despite any other law, an appeal
against any final judgment or final order of the Labour Court in any
matter in respect of which the Labour Court has exclusive
jurisdiction may be brought only to the Labour Appeal Court.
Part E - Labour Appeal Court
167. Establishment and status of Labour Appeal Court
(1) The Labour Appeal Court is hereby established as a court of law
and equity.
(2) The Labour Appeal Court is the final court of appeal in respect
of all judgments and orders made by the Labour Court in respect of
the matters within its exclusive jurisdiction.
(3) The Labour Appeal Court is a superior court that has authority,
inherent powers and standing, in relation to matters under its equal
to that which the Supreme Court of Appeal has in relation to matters
under its jurisdiction.
(4) The Labour Appeal Court is a court of record.
168. Composition of Labour Appeal Court
(1) The Labour Appeal Court consists of-
(a) the Judge President of the Labour Court, who by virtue of that
office is Judge President of the Labour Appeal Court;
(b) the Deputy Judge President, who by virtue of that office is
Deputy Judge President of the Labour Appeal Court; and
(c) such number of other judges who are judges of the High Court, as
may be required for the effective functioning of the Labour Appeal
Court.
(2) The Labour Appeal Court is constituted before any three judges
whom the Judge President designates from the panel of judges
contemplated in subsection (1).
(3) No judge of the Labour Appeal Court may sit in the hearing of an
appeal against a judgment or an order given in a case that was heard
before that judge.
169. Appointment of judges of Labour Appeal Court
(1) The President, acting on the advice of NEDLAC-AC and the
Judicial Service Commission after consultation with the Minister of
Justice and the Judge President of the Labour Appeal Court, must
appoint the three judges of the Labour Appeal Court referred to in
section 168(l)(c).
(2) The Minister of Justice, after consultation with the Judge
President of the Labour Appeal Court, may appoint one or more judges
of the High Court to serve as acting judges of the Labour Appeal
Court.
170. Tenure, remuneration and terms and conditions of appointment of
Labour Appeal Court judges
(1) A judge of the Labour Appeal Court must be appointed for a fixed
term determined by the President at the time of appointment.
(2) A judge of the Labour Appeal Court may resign by giving written
notice to the President.
(3)
(a) A judge of the Labour Appeal Court holds office until-
(i) the judge's term of office in the Labour Appeal Court ends;
(ii) the judge's resignation takes effect;
(iii) the judge is removed from office;
(iv) the judge ceases to be a judge of the High Court; or
(v) the judge dies.
(b) The Judge President and the Deputy Judge President of the Labour
Appeal Court hold their offices for as long as they hold their
respective offices of Judge President and Deputy Judge President of
the Labour Court.
(4) Neither the tenure of office nor the remuneration and terms and
conditions of appointment applicable to a judge of the High Court in
terms of the Judges' Remuneration and Conditions of Employment Act,
1989 (Act No. 88 of 1989), is affected by that judge's appointment
and concurrent tenure of office as a judge of the Labour Appeal
Court.
(5) A judge of the Labour Appeal Court-
(a) may be removed from the office of judge of the Labour Appeal
Court only if that person has first been removed from the office of
a judge of the High Court; and
(b) upon having been removed as judge of the High Court must be
removed from office as a judge of the Labour Appeal Court.
(6) Despite the expiry period of a person’s appointment as a judge
of the Labour Appeal Court, that person may continue to perform the
functions of a judge of that Court, and will be regarded as such in
all respects, only –
(a) for the purposes of disposing of any proceedings in which that
person has taken part as a judge of that Court and which are still
pending upon the expiry of that person’s appointment or which,
having been so disposed of before or after the expiry of that
person’s appointment, have been re-opened; and
(b) for as long as that person will be necessarily engaged in
connection with the disposal of the proceedings so pending or
re-opened
(7) The provisions of subsections (2) to (6) apply, read with the
changes required by the context, to acting judges appointed in terms
of section 169(2).
171. Officers of Labour Appeal Court
(1) The registrar of the Labour Court is also the registrar of the
Labour Appeal Court.
(2) Each of the deputy registrars and other officers of the Labour
Court also holds the corresponding office in relation to the Labour
Appeal Court.
(3)
(a) The officers of the Labour Appeal Court, under the supervision
and control of the registrar of that Court must perform the
administrative functions of the Labour Appeal Court.
(b) A deputy registrar of the Labour Appeal Court may perform any of
the functions of the registrar of that Court that have been
delegated generally or specifically to the deputy registrar.
(4) The deputy registrar of the Labour Appeal Court or, if there is
more than one, the most senior will act as registrar of the Labour
Appeal Court whenever-
(a) the registrar is absent from the Republic or from duty, or for
any reason is temporarily unable to perform the functions of
registrar; or
(b) the office of registrar is vacant.
172. Area of jurisdiction and seat of Labour Appeal Court
(1) The Labour Appeal Court has jurisdiction in all the provinces of
the Republic.
(2) The seat of the Labour Court is also the seat of the Labour
Appeal Court.
(3) The functions of the Labour Appeal Court may be performed at any
place in the Republic.
173. Jurisdiction of Labour Appeal Court
(1) Subject to the Constitution and despite any other law, the
Labour Appeal Court has exclusive jurisdiction-
(a) to hear and determine all appeals against the final judgments
and the final orders of the Labour Court; and
(b) to decide any question of law reserved in terms of section 158
(4).
(2) [Deleted]
(3) [Deleted]
(4) A decision to which any two judges of the Labour Appeal Court
agree is the decision of the Court.
174. Powers of Labour Appeal Court on hearing of appeals
The Labour Appeal Court has the power-
(a) on the hearing of an appeal to receive further evidence, either
orally or by deposition before a person appointed by the Labour
Appeal Court, or to remit the case to the Labour Court for further
hearing, with such instructions as regards the taking of further
evidence or otherwise as the Labour Appeal Court considers
necessary; and
(b) to confirm, amend or set aside the judgment or order that is the
subject of the appeal and to give any judgment or make any order
that the circumstances may require.
175. Labour Appeal Court may sit as court of first instance
Despite the provisions of this Part, the Judge President may direct
that any matter before the Labour Court be heard by the Labour
Appeal Court sitting as a court of first instance, in which case the
Labour Appeal Court is entitled to make any order that the Labour
Court would have been entitled to make.
176. Rules for Labour Appeal Court
(1) The Rules Board for Labour Courts established by section 159 may
make rules to regulate the conduct of proceedings in the Labour
Appeal Court.
(2) The Board has all the powers referred to in section 159 when it
makes rules for the Labour Appeal Court.
(3) The Board must publish in the Government Gazette any rules that
it makes, alters or repeals.
177. Proceedings of Labour Appeal Court to be carried on in open
court
(1) The proceedings in the Labour Appeal Court must be carried on in
open court.
(2) Despite subsection (1), the Labour Appeal Court may exclude the
members of the general public, or specific persons, or categories of
persons from the proceedings in any case where a High Court could
have done so.
178. Representation before Labour Appeal Court
Any person who, in terms of section 161, may appear before the
Labour Court has the right to appear before the Labour Appeal Court.
179. Costs
(1) The Labour Appeal Court may make an order for the payment of
costs, according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the
Labour Appeal Court may take into account-
(a) whether the matter referred to the Court should have been
referred to arbitration in terms of this Act and, if so, the extra
costs incurred in referring the matter to the Court; and
(b) the conduct of the parties-
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.
(3) The Labour Appeal Court may order costs against a party to the
dispute or against any person who represented that party in those
proceedings before the Court.
180. Service and enforcement of orders
Any decision, judgment or order of the Labour Appeal Court may be
served and executed as if it were a decision, judgment or order of
the High Court.
181. Seal of Labour Appeal Court
(1) The Labour Appeal Court for use as the occasion may require will
have an official seal of a design prescribed by the President by
proclamation in the Government Gazette.
(2) The registrar of the Labour Appeal Court must keep custody of
the official seal of the Labour Appeal Court.
182. Judgments of Labour Appeal Court binding on Labour Court
A judgment of the Labour Appeal Court is binding on the Labour
Court.
183. Labour Appeal Court final court of appeal
Subject to the Constitution and despite any other law, no appeal
lies against any decision, judgment or order given by the Labour
Appeal Court in respect of-
(a) any appeal in terms of section 173(l)(a);
(b) its decision on any question of law in terms of section
173(l)(b); or
(c) any judgment or order made in terms of section 175.
Part F - General Provisions Applicable To Courts Established By This
Act
184. General provisions applicable to courts established by this Act
Sections 5,4118,42 25,4330,4431,4539,464047 and 4248 of the Supreme
Court Act, 1959 (Act No. 59 of 1959) apply, read with the changes
required by the context, in relation to the Labour Court, or the
Labour Appeal Court, or both, to the extent that they are not
inconsistent with this Act.
41. Scope and execution of process.
42. Certified copies of court records admissible as evidence.
43. No process to be issued against judge except with consent of
court.
44. Manner of securing attendance of witnesses or the production of
any document.
45. Manner in which witness may be dealt with on refusal to give
evidence or produce document.
46. Property not liable to be seized in execution.
47. Offences relating to execution.
48. Witness fees.
CHAPTER VIII
UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE
185. Right not to be unfairly dismissed or subjected to unfair
labour practice
Every employee has the right not to be
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.
186. Meaning of dismissal and unfair labour practice
(1) "Dismissal" means that-
(a) an employer has terminated a contract of employment with or
without notice;
(b) an employee reasonably expected the employer to renew a fixed
term contract of employment on the same or similar terms but the
employer offered to renew it on less favourable terms, or did not
renew it;
(c) an employer refused to allow an employee to resume work after
she-
(i) took maternity leave in terms of any law, collective agreement
or her contract of employment; or
(ii) was absent from work for up to four weeks before the expected
date, and up to eight weeks after the actual date, of the birth of
her child;
(d) an employer who dismissed a number of employees for the same or
similar reasons has offered to re-employ one or more of them but has
refused to re-employ another; or
(e) an employee terminated a contract of employment with or without
notice because the employer made continued employment intolerable
for the employee.
(f) an employee terminated a contract of employment with or without
notice because the new employer, after a transfer in terms of
section 197 or section 197A, provided the employee with conditions
or circumstances at work that are substantially less favourable to
the employee than those provided by the old employer.
(2) “Unfair labour practice” means any unfair act or omission that
arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion,
demotion, probation (excluding disputes about dismissals for a
reason relating to probation) or training of an employee or relating
to the provision of benefits to an employee;
(b) unfair suspension of an employee or any other unfair
disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a
former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in
contravention of the Protected Disclosures Act, 2000 (Act No. 26 of
2000), on account of the employee having made a protected disclosure
defined in that Act.
187. Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in
dismissing the employee, acts contrary to section 549 or, if the
reason for the dismissal is-
(a) that the employee participated in or supported, or indicated an
intention to participate in or support, a strike or protest action
that complies with the provisions of Chapter IV;50
(b) that the employee refused, or indicated an intention to refuse,
to do any work normally done by an employee who at the time was
taking part in a strike that complies with the provisions of Chapter
IV or was locked out, unless that work is necessary to prevent an
actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any
matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take
action, against the employer by-
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee's pregnancy, intended pregnancy, or any reason
related to her pregnancy;
(f) that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility;
(g) a transfer, or a reason related to a transfer, contemplated in
section 197 or 197A; or
(h) a contravention of the Protected Disclosures Act, 2000, by the
employer, on account of an employee having made a protected
disclosure defined in that Act.
(2) Despite subsection (1)(f)-
(a) a dismissal may be fair if the reason for dismissal is based on
an inherent requirement of the particular job;
(b) a dismissal based on age is fair if the employee has reached the
normal or agreed retirement age for persons employed in that
capacity.
49. Section 5 confers protections relating to the right to freedom
of association and on members of workplace forums.
50. Chapter IV deals with industrial action and conduct in support
of industrial action. Section 67(4) and (5) provide-
(4) An employer may not dismiss an employee for participating in a
protected strike or for any conduct in contemplation or in
furtherance of a protected strike.
(5) Subsection (4) does not preclude an employer from fairly
dismissing an employee in compliance with the provisions of Chapter
VIII for a reason related to the employee's conduct during the
strike, or for a reason based on the employer's operational
requirements."
Section 77(3) provides-
"A person who takes part in protest action or in any conduct in
contemplation or in furtherance of protest action that complies with
subsection (1), enjoys the protections conferred by section 67."
188. Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee's conduct or capacity; or
(ii) based on the employer's operational requirements; and
(b) that the dismissal was effected in accordance with a fair
procedure.
(2) Any person considering whether or not the reason for dismissal
is a fair reason or whether or not the dismissal was effected in
accordance with a fair procedure must take into account any relevant
code of good practice issued in terms of this Act.51
51. See Schedule 8, the Code of Good Practice: Dismissal.
188A. Agreement for pre-dismissal arbitration
(1) An employer may, with the consent of the employee, request a
council, an accredited agency or the Commission to conduct an
arbitration into allegations about the conduct or capacity of that
employee.
(2) The request must be in the prescribed form.
(3) The council, accredited agency or the Commission must appoint an
arbitrator on receipt of –
(a) payment by the employer of the prescribed fee; and
(b) the employee’s written consent to the inquiry.
(4)
(a) An employee may only consent to a pre-dismissal arbitration
after the employee has been advised of the allegation referred to in
subsection (1) and in respect of a specific arbitration.
(b) Despite subparagraph (a), an employee earning more than the
amount determined by the Minister in terms of section 6(3) of the
Basic Conditions of Employment Act, may consent to the holding of a
pre-dismissal arbitration in a contract of employment.
(5) In any arbitration in terms of this section a party to the
dispute may appear in person or be represented only by –
(a) a co-employee
(b) a director or employee, if the party is a juristic person
(c) any member, officer bearer or official of that party’s
registered trade union or registered employers’ organisation; or
(d) a legal practitioner, o agreement between the parties.
(6) Section 138, read with the changes required by the context,
applies to any arbitration in terms of this section.
(7) An arbitrator appointed in terms of this section has all the
powers conferred on a commissioner by section 142(1)(a) to (e), (2)
and (7) to (9), read with the changes required by the context, and
any reference in that section to the director for the purpose of
this section, must be read as a reference to –
(a) the secretary of the council, it the arbitration is held under
the auspices of the council;
(b) the director of the accredited agency, if the arbitration is
held under the auspices of an accredited agency.
(8) The provision of sections 143 to 146 apply to any award made by
an arbitrator in terms of this section.
(9) An arbitrator conducting an arbitration in terms of this section
must, in the light of the evidence presented and by reference to the
criteria of fairness in the Act, direct what action, if any, should
be taken against the employee.
(10)
(a) A private agency may only conduct an arbitration in terms of
this section if it is accredited for this purpose by the Commission.
(b) A council may only conduct an arbitration in terms of this
section in respect of which the employer or the employee is not a
party to the council, if the council has been accredited for this
purpose by the Commission.
189. Dismissals based on operational requirements
(1) When an employer contemplates dismissing one or more employees
for reasons based on the employer's operational requirements, the
employer must consult-
(a) any person whom the employer is required to consult in terms of
a collective agreement;
(b) if there is no collective agreement that requires consultation –
(i) a workplace forum, if the employees likely to be affected by the
proposed dismissals are employed in a workplace in respect of which
there is a workplace forum; and
(ii) any registered trade union whose members are likely to be
affected by the proposed dismissals;
(c) if there is no workplace forum in the workplace in which the
employees likely to be affected by the proposed dismissals are
employed, any registered trade union whose members are likely to be
affected by the proposed dismissals; or
(d) if there is no such trade union, the employees likely to be
affected by the proposed dismissals or their representatives
nominated for that purpose.
(2) The employer and the other consulting parties must, in the
consultation envisaged by subsections (1) and (3), engage in a
meaningful joint consensus-seeking process and attempt to reach
consensus on –
(a) appropriate measures-
(i) to avoid the dismissals;
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must issue a written notice inviting the other
consulting party to consult with it and disclose in writing all
relevant information, including, but not limited to-
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing
the dismissals, and the reasons for rejecting each of those
alternatives;
(c) the number of employees likely to be affected and the job
categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are
likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the
employees likely to be dismissed;
(h) the possibility of the future re-employment of the employees who
are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for
reasons based on its operation requirements in the preceding 12
months.
(4)
(a) The provisions of section 16 apply, read with the changes
required by the context, to the disclosure of information in terms
of subsection (3).
(b) In any dispute in which in which an arbitrator or the Labour
Court is required to decide whether or not any information is
relevant, the onus is on the employer to prove that any information
that it has refused to disclose is not relevant for the purposes for
which it is sought.
(5) The employer must allow the other consulting party an
opportunity during consultation to make representations about any
matter dealt with in subsections (2), (3) and (4), as well as any
other matter relating to the proposed dismissals.
(6)
(a) The employer must consider and respond to the representations
made by the other consulting party and, if the employer does not
agree with them, the employer must state the reasons for
disagreeing.
(b) If any representation is made in writing, the employer must
respond in writing.
(7) The employer must select the employees to be dismissed according
to selection criteria-
(a) that have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and
objective.
189A. Dismissals based on operational requirements by employers with
more than 50 employees
(1) This section applies to employers employing more than 50
employees if –
(a) the employer contemplates dismissing by reason of the employer’s
operational requirements, at least –
(i) 10 employees, if the employer employs up to 200 employees;
(ii) 20 employees, if the employer employs more than 200, but not
more than 300 employees;
(iii) 30 employees, if the employer employs more than 300, but not
more than 400, employees;
(iv) 40 employees, if the employer employs more than 400, but not
more than 500, employees; or
(v) 50 employees if the employer employs more than 500 employees; or
(b) the number of employees that the employer contemplates
dismissing, together with the number of employees that have been
dismissed by reason of the employer’s operational requirements in
the 12 months prior to the employer issuing a notice in terms of
section 189(3), is equal to or exceeds the relevant number specified
I paragraph (a).
(2) In respect of any dismissal covered by this section –
(a) an employer must give notice of termination of employment in
accordance with the provisions of this section;
(b) despite section 65(1)(c), an employee may participate in a
strike and an employer may lock out in accordance with the
provisions of this section;
(c) the consulting parties may agree to vary the time periods for
facilitation or consultation.
(3) The Commission must appoint a facilitator in terms of any
regulations made under subsection (6) to assist the parties engaged
in consultations if –
(a) the employer has in its notice in terms of section 189(3)
requested facilitation; or
(b) consulting parties representing the majority of employees whom
the employer contemplates dismissing have requested facilitation and
have notified the Commission within 15 days of the notice.
(4) This section does not prevent an agreement to appoint a
facilitator in circumstances not contemplated in subsection (3).
(5) If a facilitator is appointed in terms of subsection (3) or (4)
the facilitation must be conducted in terms of any regulations made
by the Minister under subsection (6) for the conduct of such
facilitations.
(6) The Minister, after consulting NEDLAC and the Commission, may
make regulations relating to –
(a) the time period and the variation of time periods, for
facilitation;
(b) the powers and duties of facilitators;
(c) the circumstances in which the Commission may charge a fee for
appointing a facilitator and the amount of the fee; and
(d) any other matter necessary for the conduct of facilitations.
(7) If a facilitator is appointed in terms of subsection (3) or (4),
and 60 days have elapsed from the date on which notice was given in
terms of section 189(3) –
(a) the employer may give notice to terminate the contracts of
employment in accordance with section 37(1) of the Basic Conditions
of Employment Act; and
(b) a registered trade union or the employees who have received
notice of termination may either –
(i) give notice of a strike in terms of section 64(1)(b) or (d); or
(ii) refer a dispute concerning whether there is a fair reason for
the dismissal to the Labour Court in terms of section 191(11).
(8) If a facilitator is not appointed –
(a) a party may not refer a dispute to a council or the Commission
unless a period of 30 days has lapsed from the date on which notice
was given in terms of section 189(3); and
(b) once the periods mentioned in section 64(1)(a) have elapsed –
(i) the employer may give notice to terminate the contracts of
employment in accordance with section 37(1) of the Basic Conditions
of Employment Act; and
(ii) a registered trade union or the employees who have received
notice of termination may –
(aa) give notice of a strike in terms of section 64(1)(b) or (d); or
(bb) refer a dispute concerning whether there is a fair reason for
the dismissal to the Labour Court in terms of section 191(11).
(9) Notice of the commencement of a strike may be given if the
employer dismisses or gives notice of dismissal before the expiry of
the periods referred to in subsections (7)(a) or (8)(b)(i).
(10)
(a) A consulting party may not –
(i) give notice of a strike in terms of this section in respect of a
dismissal, if it has referred a dispute concerning whether there is
a fair reason for that dismissal to the Labour Court;
(ii) refer a dispute about whether there is a fair reason for a
dismissal to the Labour Court, if it has given notice of a strike in
terms of this section in respect of that dismissal.
(b) If a trade union gives notice of a strike in terms of this
section -
(i) no member of that trade union and no employee, to whom a
collective agreement concluded by that trade union dealing with
consultation or facilitation in respect of dismissals by reason of
the employers’ operational requirements has been extended in terms
of section 23(1)(d), may refer a dispute concerning whether there is
a fair reason for dismissal to the Labour Court;
(ii) any referral to the Labour Court contemplated by subparagraph
(i) that has been made is deemed to be withdrawn.
(11) The following provisions of Chapter IV apply to any strike or
lock-out in terms of this section:
(a) Section 64(1) and (3)(a) to (d), except that –
(i) section 64(1)(a) does not apply if a facilitator is appointed in
terms of this section;
(ii) an employer may only lock out in respect of a dispute in which
a strike notice has been issued;
(b) subsection (2)(a), section 65(1) and (3);
(c) section 66, except that written notice of any proposed secondary
strike must be given at least 14 days prior to the commencement of
the strike;
(d) sections 67, 68, 69 and 76.
(12)
(a) During the 14-day period referred to in subsection (11)(c), the
director must, if requested by an employer who has received notice
of any intended secondary strike, appoint a commissioner to attempt
to resolve any dispute between the employer and the party who gave
the notice, through conciliation.
(b) A request to appoint a commissioner or the appointment of a
commissioner in terms of paragraph (a) does not affect the right of
employees to strike on the expiry of the 14-day period.
(13) If an employer does not comply with a fair procedure, a
consulting party may approach the Labour Court by way of an
application for an order –
(a) compelling the employer to comply with a fair procedure;
(b) interdicting or restraining the employer from dismissing an
employee prior to complying with a fair procedure;
(c) directing the employer to reinstate an employee until it has
complied with a fair procedure;
(d) make an award of compensation, if an order in terms of
paragraphs (a) to (c) is not appropriate.
(14) Subject to this section, the Labour Court may make any
appropriate order referred to in section 158(1)(a).
(15) An award of compensation made to an employee in terms of
subsection (14) must comply with section 194.
(16) The Labour Court may not make an order in respect of any matter
concerning the disclosure of information in terms of section 189(4)
that has been the subject of an arbitration award in terms of
section 16.
(17)
(a) An application in terms of subsection (13) must be brought not
later than 30 days after the employer has given notice to terminate
the employee’s services or, if notice is not given, the date on
which the employees are dismissed.
(b) The Labour Court may, on good cause shown, condone a failure to
comply with the time limit mentioned in paragraph (a).
(18) The Labour Court may not adjudicate a dispute about the
procedural fairness of a dismissal based on the employer’s
operational requirements in any dispute referred to it in terms of
section 191(5)(b)(ii).
(19) In any dispute referred to the \labour Court in terms of
section 191(5)(b)(ii) that concerns the dismissal of the number of
employees specified in subsection (1), the Labour Court must find
that the employee was dismissed for a fair reason if –
(a) the dismissal was to give effect to a requirement based on the
employer’s economic, technological, structural or similar needs;
(b) the dismissal was operationally justifiable on rational grounds;
(c) there was a proper consideration of alternatives; and
(d) selection criteria were fair and objective.
(20) For the purposes of this section, an ‘employer’ in the public
service is the executing authority of a national department,
provincial administration, provincial department or organisational
component contemplated in section 7(2) of the Public Service Act,
1994 (promulgated by Proclamation No. 103 of 1994).
190. Date of dismissal
(1) The date of dismissal is the earlier of-
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
(2) Despite subsection (i)-
(a) if an employer has offered to renew on less favourable terms, or
has failed to renew, a fixed-term contract of employment, the date
of dismissal is the date on which the employer offered the less
favourable terms or the date the employer notified the employee of
the intention not to renew the contract;
(b) if the employer refused to allow an employee to resume work, the
date of dismissal is the date on which the employer first refused to
allow the employee to resume work;
(c) if an employer refused to reinstate or re-employ the employee,
the date of dismissal is the date on which the employer first
refused to reinstate or re-employ that employee.
191. Disputes about unfair dismissals and unfair labour practices52
(1)
(a) If there is a dispute about the fairness of a dismissal or a
dispute about an unfair labour practice, the dismissed employee or
the employee alleging the unfair labour practice may refer the
dispute in writing within to-
(i) a council, if the parties to the dispute fall within the
registered scope of that council; or
(ii) the Commission, if no council has jurisdiction.
(b) A referral in terms of paragraph (a) must be made within –
(i) 30 days of the date of a dismissal or, if it is a later date,
within 30 days of the employer making a final decision to dismiss or
uphold the dismissal;
(ii) 90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.
(2) If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after the
relevant time limit in subsection (1) has expired.
(2A) Subject to subsections (1) and (2), an employee whose contract
of employment is terminated by notice, may refer the dispute to the
council or the Commission once the employee has received that
notice.
(3) The employee must satisfy the council or the Commission that a
copy of the referral has been served on the employer.
(4) The council or the Commission must attempt to resolve the
dispute through conciliation.
(5) If a council or a commissioner has certified that the dispute
remains unresolved, or if 30 days have expired since the council or
the Commission received the referral and the dispute remains
unresolved-
(a) the council or the Commission must arbitrate the dispute at the
request of the employee if-
(i) the employee has alleged that the reason for dismissal related
to the employee's conduct or capacity, unless paragraph (b)(iii)
applies;
(ii) the employee has alleged that the reason for dismissal is that
the employer made continued employment intolerable or the employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms of section 197 or
197A, unless the employee alleges that the contract of employment
was terminated for a reason contemplated in section 187;
(iii) the employee does not know the reason for dismissal; or
(iv) the dispute concerns an unfair labour practice; or
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal is-
(i) automatically unfair;
(ii) based on the employer's operational requirements;
(iii) the employee's participation in a strike that does not comply
with the provisions of Chapter IV; or
(iv) because the employee refused to join, was refused membership of
or was expelled from a trade union party to a closed shop agreement.
(5A) Despite any other provision in the Act, the council or
Commission must commence the arbitration immediately after
certifying that the dispute remains unresolved if the dispute
concerns –
(a) the dismissal of an employee for any reason relating to
probation;
(b) any unfair labour practice relating to probation;
(c) any other dispute contemplated in subsection (5)(a) in respect
of which no party has objected to the matter being dealt with in
terms of this subsection.
(6) Despite subsection (5)(a) or (5A), the director must refer the
dispute to the Labour Court, if the director decides, on application
by any party to the dispute, that to be appropriate after
considering-
(a) the reason for dismissal;
(b) whether there are questions of law raised by the dispute;
(c) the complexity of the dispute;
(d) whether there are conflicting arbitration awards that need to be
resolved;
(e) the public interest.
(7) When considering whether the dispute should be referred to the
Labour Court, the director must give the parties to the dispute and
the commissioner who attempted to conciliate the dispute, an
opportunity to make representations.
(8) The director must notify the parties of the decision and refer
the dispute-
(a) to the Commission for arbitration; or
(b) to the Labour Court for adjudication.
(9) The director's decision is final and binding.
(10) No person may apply to any court of law to review the
director's decision until the dispute has been arbitrated or
adjudicated, as the case may be.
(11)
(a) The referral, in terms of subsection (5)(b), of a dispute to the
Labour Court for adjudication must be made within 90 days after the
council or (as the case may be) the commissioner has certified that
the dispute remains unresolved.
(b) However, the Labour Court may condone non-observance of that
timeframe on good cause shown.
(12) If an employee is dismissed by reason of the employer’s
operational requirements following a consultation procedure in terms
of section 189 that applied to that employee only, the employee may
elect to refer the dispute either to arbitration or to the Labour
Court.
(13)
(a) An employee may refer a dispute concerning an alleged unfair
labour practice to the Labour Court for adjudication if the employee
has alleged that the employee has been subjected to an occupational
detriment by the employer in contravention of section 3 of the
Protected Disclosures Act, 2000, for having made a protected
disclosure defined in that Act.
(b) A referral in terms of paragraph (a) is deemed to be made in
terms of subsection (5)(b).
52. See flow diagrams Nos. 10, 11, 12 and 13 in Schedule 4.
192. Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer
must prove that the dismissal is fair.
193. Remedies for unfair dismissal and unfair labour practice
(1) If the Labour Court or an arbitrator appointed in terms of this
Act finds that a dismissal is unfair, the Court or the arbitrator
may-
(a) order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work
in which the employee was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate
or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.
(3) If a dismissal is automatically unfair or, if a dismissal based
on the employer's operational requirements is found to be unfair,
the Labour Court in addition may make any other order that it
considers appropriate in the circumstances.53
(4) An arbitrator appointed in terms of this Act may determine any
unfair labour practice dispute referred to the arbitrator, on terms
that the arbitrator deems reasonable, which may include ordering
reinstatement, re-employment or compensation.
53. The Court, for example, in the case of a dismissal that
constitutes an act of discrimination, may wish to issue an interdict
obliging the employer to stop the discriminatory practice in
addition to one of the other remedies it may grant.
194. Limits on compensation
(1) The compensation awarded to an employee whose dismissal is found
to be unfair either because the employer did not prove that the
reason for dismissal was a fair reason relating to the employee’s
conduct or capacity or the employer’s operational requirements or
the employer did not follow a fair procedure, or both, must be just
and equitable in all the circumstances, but may not be more than the
equivalent of 12 months’ remuneration calculated at the employee’s
rate of remuneration on the date of dismissal.
(2) [Deleted]
(3) The compensation awarded to an employee whose dismissal is
automatically unfair must be just and equitable in all the
circumstances, but not more than the equivalent of 24 months'
remuneration calculated at the employee's rate of remuneration on
the date of dismissal.
(4) The compensation awarded to an employee in respect of an unfair
labour practice must be just and equitable in all the circumstances,
but not more than the equivalent of 12 months’ remuneration.
195. Compensation is in addition to any other amount
An order or award of compensation made in terms of this Chapter is
in addition to, and not a substitute for, any other amount to which
the employee is entitled in terms of any law, collective agreement
or contract of employment.
196. Severance pay
(1) An employer must pay an employee who dismissed for reasons based
on the employer's operational requirements severance pay equal to at
least one week's remuneration for each completed year of continuous
service with that employer, unless the employer has been exempted
from the provisions of this subsection.
(2) The Minister, after consulting NEDLAC and the Public Service
Co-ordinating Bargaining Council, may vary the amount of severance
pay in terms of subsection (1) by notice in the Government Gazette.
(3) An employee who unreasonably refuses to accept the employer's
offer of alternative employment with that employer or any other
employer is not entitled to severance pay in terms of subsection
(1).
(4) The payment of severance pay in compliance with this section
does not affect an employee's right to any other amount payable
according to law.
(5) An employer or a category of employers may apply to the Minister
for exemption from the provisions of subsection (1) as if the
application is one in terms of the Basic Conditions of Employment
Act and the Minister may grant an exemption as if it were an
exemption granted in terms of that Act.
(6) If there is a dispute only about the entitlement to severance
pay in terms of this section, the employee may refer the dispute in
writing to-
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has jurisdiction
(7) The employee who refers the dispute to the council or the
Commission must satisfy it that a copy of the referral has been
served on all the other parties to the dispute.
(8) The council or the Commission must attempt to resolve the
dispute through conciliation.
(9) If the dispute remains unresolved, the employee may refer it to
arbitration.
(10) If the Labour Court is adjudicating a dispute about a dismissal
based on the employer's operational requirements, the Court may
inquire into and determine the amount of any severance pay to which
the dismissed employee may be entitled and the Court may make an
order directing the employer to pay that amount.
197. Transfer of contract of employment
(1) In this section and in section 197A –
(a) ‘business’ includes the whole or a part of any business, trade,
undertaking or service; and
(b) ‘transfer’ means the transfer of a business by one employer
(‘the old employer’) to another employer (‘the new employer’) as a
going concern.
(2) If a transfer of a business takes place, unless otherwise agreed
in terms of subsection (6) –
(a) the new employer is automatically substituted in the place of
the old employer in respect of all contracts of employment in
existence immediately before the date of transfer;
(b) all the rights and obligations between the old employer and an
employee at the time of the transfer continue in force as if they
had been rights and obligations between the new employer and the
employee;
(c) anything done before the transfer by or in relation to the old
employer, including the dismissal of an employee or the commission
of an unfair labour practice or act of unfair discrimination, is
considered to have been done by or in relation to the new employer;
and
(d) the transfer does not interrupt an employee’s continuity of
employment, and an employee’s contract of employment continues with
the new employer as if with the old employer.
(3)
(a) The new employer complies with subsection (2) if that employer
employs transferred employees on terms and conditions that are on
the whole not less favourable to the employees than those on which
they were employed by the old employer.
(b) Paragraph (a) does not apply to employees if any of their
conditions of employment are determined by a collective agreement.
(4) Subsection (2) does not prevent an employee from being
transferred to a pension, provident, retirement or similar fund
other than the fund to which the employee belonged prior to the
transfer, if the criteria in section 14(1)(c) of the Pension Funds
Act, 1956 (Act No. 24 of 1956), are satisfied53a.
(5)
(a) For the purposes of this subsection, the collective agreements
and arbitration awards referred to in paragraph (b) are agreements
and awards that bound the old employer in respect of the employees
to be transferred, immediately before the date of transfer.
(b) Unless otherwise agreed in terms of subsection (6), the new
employer is bound by –
(i) any arbitration award made in terms of this Act, the common law
or any other law;
(ii) any collective agreement binding in terms of section 23; and
(iii) any collective agreement binding in terms of section 32,
unless a commissioner acting in terms of section 62 decides
otherwise.
(6)
(a) An agreement contemplated in subsection (2) must be in writing
and concluded between –
(i) either the old employer, the new employer, or the old and new
employers acting jointly, on the one hand; and
(ii) the appropriate person or body referred to in section 189(1),
on the other.
(b) In any negotiations to conclude an agreement contemplated by
paragraph (a), the employer or employers contemplated in
subparagraph (i), all relevant information that will allow it to
engage effectively in the negotiations.
(c) Section 16(4) to (14) applies, read with the changes required by
the context, to the disclosure of information in terms of paragraph
(b).
(7) The old employer must –
(a) agree with the new employer to a valuation as at the date of
transfer of –
(i) the leave pay accrued to the transferred employees of the old
employer;
(ii) the severance pay that would have been payable to the
transferred employees of the old employer in the event of a
dismissal by reason of the employer’s operational requirements; and
(iii) any other payments that have accrued to the transferred
employees but have not been paid to employees of the old employer.
(b) conclude a written agreement that specifies –
(i) which employer is liable for paying any amount referred to in
paragraph (a), and in the case of the apportionment of liability
between them, the terms of the apportionment; and
(ii) what provision has been made for any payment contemplated in
paragraph (a) if any employee becomes entitled to receive a payment;
(c) disclose the terms of the agreement contemplated in paragraph
(b) to each employee who after the transfer becomes employed by the
new employer; and
(d) take any other measure that may be reasonable in the
circumstances to ensure that adequate provision is made for any
obligation on the new employer that may arise in terms of paragraph
(a).
(8) For a period of 12 months after the date of the transfer, the
old employer is jointly and severally liable with the new employer
to any employee who becomes entitled to receive a payment
contemplated in subsection (7)(a) as a result of the employee’s
dismissal for a reason relating to the employer’s operational
requirements or the employer’s liquidation or sequestration, unless
the old employer is able to show that it has complied with the
provisions of this section.
(9) The old and new employer are jointly and severally liable in
respect of any claim concerning any term or condition of employment
that arose prior to the transfer.
(10) This section does not affect the liability of any person to be
prosecuted for, convicted of and sentenced for, any offence.
53a. Section 14(1)(c) of the Pensions Funds Act requires the
registrar to be satisfied that any scheme to amalgamate or transfer
funds is reasonable and equitable, and accords full recognition to
the rights and reasonable benefit expectations of the persons
concerned in terms of the fund rules, and to additional benefits
which have become established practice.
197A Transfer of contract of employment in circumstances of
insolvency
(1) This section applies to the transfer of a business –
(a) if the old employer is insolvent; or
(b) if a scheme of arrangement or compromise is being entered into
to avoid winding up sequestration for reasons of insolvency.
(2) Despite the Insolvency Act, 1936 (Act No. 24 of 1936), if a
transfer of a business takes place in the circumstances contemplated
in subsection (1), unless otherwise agreed in terms of section
197(6) –
(a) the new employer is automatically substituted in the place of
the old employer in all contracts of employment in existence
immediately before the old employer’s provisional winding up or
sequestration;
(b) all the rights and obligations between the old employer and each
employee at the time of the transfer remain rights and obligations
between the old employer and each employee;
(c) anything done before the transfer by the old employer in respect
of each employee is considered to have been done by the old
employer;
(d) the transfer does not interrupt the employee’s continuity of
employment and the employee’s contract of employment continues with
the new employer as if with the old employer.
(3) Section 197(3), (4), (5) and (10) applies to a transfer in terms
of this section any reference to an agreement in that section must
be read as a reference to an agreement contemplated in section
197(6).
(4) Section 197(5) applies to a collective agreement or arbitration
binding on the employer immediately before the employer’s
provisional winding up or sequestration.
(5) Section 197(7), (8) and (9) does not apply to a transfer in
accordance with this section.
197B Disclosure of information concerning insolvency
(1) An employer that is facing financial difficulties that may
reasonably result in the winding up or sequestration of the employer
must advise a consulting party contemplated in section 189(1).
(2)
(a) An employer that applies to be wound up or sequestrated, whether
in terms of the Insolvency Act, 1936 or any other law, must at the
time of making application, provide a consulting party contemplated
in section 189(1) with a copy of the application.
(b) An employer that receives an application for its winding up or
sequestration must supply a copy of the application to any
consulting party contemplated in section 189(1), within two days of
receipt, or if the proceedings are urgent, within 12 hours.
CHAPTER IX
GENERAL PROVISIONS
198. Temporary Employment Services
(1) In this section, "temporary employment service" means any person
who, for reward, procures for or provides to a client other persons-
(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment service.
(2) For the purposes of this Act, a person whose services have been
procured for or provided to a client by a temporary employment
service is the employee of that temporary employment service, and
the temporary employment service is that person's employer.
(3) Despite subsections (1) and (2), a person who is an independent
contractor is not an employee of a temporary employment service, nor
is the temporary employment service the employer of that person.
(4) The temporary employment service and the client are jointly and
severally liable if the temporary employment service, in respect of
any of its employees, contravenes-
(a) a collective agreement concluded in a bargaining council that
regulates terms and conditions of employment;
(b) a binding arbitration award that regulates terms and conditions
of employment;
(c) the Basic Conditions o Employment Act; or
(d) a determination made in terms of the Wage Act.
(5) Two or more bargaining councils may agree to bind the following
persons, if they fall within the combined registered scope of those
bargaining councils, to a collective agreement concluded in any one
of them-
(a) temporary employment service;
(b) a person employed by a temporary employment service; and
(c) a temporary employment service client.
(6) An agreement concluded in terms of subsection (5) is binding
only if the collective agreement has been extended to non-parties
within the registered scope of the bargaining council.
(7) Two or more bargaining councils may agree to bind the following
persons, who fall within their combined registered scope, to a
collective agreement-
(a) temporary employment service;
(b) a person employed by a temporary employment service; and
(c) a temporary employment service's client.
(8) An agreement concluded in terms of subsection (7) is binding
only if-
(a) each of the contracting bargaining councils has requested the
Minister to extend the agreement to non-parties falling within its
registered scope;
(b) the Minister is satisfied that the terms of the agreement are
not substantially more onerous than those prevailing in the
corresponding collective agreements concluded in the bargaining
councils; and
(c) the Minister, by notice in the Government Gazette, has extended
the agreement as requested by all the bargaining councils that are
parties to the agreement.
199. Contracts of employment may not disregard or waive collective
agreements or arbitration awards
(1) A contract of employment, whether concluded before or after the
coming into operation of any applicable collective agreement or
arbitration award, may not-
(a) permit an employee to be paid remuneration that is less than
that prescribed by that collective agreement or arbitration award;
(b) permit an employee to be treated in a manner, or to be granted
any benefit, that is less favourable than that prescribed by that
collective agreement or arbitration award; or
(c) waive the application of any provision of that collective
agreement or arbitration award.
(2) A provision in any contract that purports to permit or grant any
payment, treatment, benefit, waiver or exclusion prohibited by
subsection (1) is invalid.
200. Representation of employees or employers
(1) A registered trade union or registered employers' organisation
may act in any one or more of the following capacities in any
dispute to which any of its members is a party-
(a) in its own interest;
(b) on behalf of any of its members;
(c) in the interest of any of its members.
(2) A registered trade union or a registered employers' organisation
is entitled to be a party to any proceedings in terms of this Act if
one or more of its members is a party to those proceedings.
200A. Presumption as to who is employee
(1) Until the contrary is proved, a person, who works for or renders
services to any other person, is presumed, regardless of the form of
the contract, to be an employee, if any one or more of the following
factors are present:
(a) the manner in which the person works is subject to the control
or direction of another person;
(b) the person’s hours of work are subject to the control or
direction of another person;
(c) in the case of a person who works for an organisation, the
person forms part of that organisation;
(d) the person has worked for that other person for an average of at
least 40 hours per month over the last three months;
(e) the person is economically dependent on the other person for
whom he or she works or renders services;
(f) the person is provided with tools of trade or work equipment by
the other person; or
(g) the person only works for or renders services to one person.
(2) Subsection (1) does not apply to any person who earns in excess
of the amount determined by the Minister in terms of section 6(3) of
the Basic Conditions of Employment Act.
(3) If a proposed or existing work arrangement involves persons who
earn amounts equal to or below the amounts determined by the
Minister in terms of section 6(3) of the Basic Conditions of
Employment Act, any of the contracting parties may approach the
Commission for an advisory award on whether the persons involved in
the arrangement are employees.
(4) NEDLAC must prepare and issue a Code of Good Practice that sets
out guidelines for determining whether persons, including those who
earn in excess of the amount determined in subsection (2) are
employees.
201. Confidentiality
(1) A person commits an offence by disclosing any information
relating to the financial or business affairs of any other person or
any business, trade or undertaking if the information was acquired
by the first-mentioned person in the performance of any function or
exercise of any power in terms of this Act, in any capacity, by or
on behalf of-
(a) a council;
(b) any independent body established by a collective agreement or
determination to grant exemptions from the provisions of the
collective agreement or determination;
(c) the registrar;
(d) the Commission; and
(e) an accredited agency.
(2) Subsection (1) does not apply if the information was disclosed
to enable a person to perform a function or exercise a power in
terms of this Act.
(3)
(a) A person convicted of an offence in terms of this section may be
sentenced to a fine not exceeding R10 000.
(b) The Minister, in consultation with the Minister of Justice, may
from time to time by notice in the Government Gazette, amend the
maximum amount of the fine referred to in paragraph (a).
202. Service of documents
(1) If a registered trade union or a registered employers'
organisation acts on behalf of any of its members in a dispute,
service on that trade union or employers' organisation of any
document directed to those members in connection with that dispute,
will be sufficient service on those members for the purposes of this
Act.
(2) Service on the Office of the State Attorney of any legal process
directed to the State in its capacity as an employer is service on
the State for the purposes of this Act.
203. Codes of good practice
(1) NEDLAC may-
(a) prepare and issue codes of good practice; and
(b) change or replace any code of good practice.
(2) Any code of good practice, or any change to or replacement of a
code of good practice, must be published in the Government Gazette.
(3) Any person interpreting or applying this Act must take into
account any relevant code of good practice.
(4) A Code of Good Practice issued in terms of this section may
provide that the code must be taken into account in applying or
interpreting any employment law.
204. Collective agreement, arbitration award or wage determination
to be kept by employer
Unless a collective agreement, arbitration award or determination
made in terms of the Basic Conditions of Employment Act provides
otherwise, every employer on whom the collective agreement,
arbitration award, or determination is binding must-
(a) keep a copy of that collective agreement, arbitration award or
determination available in the workplace at all times;
(b) make that copy available for inspection by any employee; and
(c) give a copy of that collective agreement, arbitration award or
determination-
(i) to an employee who has paid the prescribed fee; and
(ii) free of charge, on request, to an employee who is a trade union
representative or a member of a workplace forum.
205. Records to be kept by employer
(1) Every employer must keep the records that an employer is
required to keep in compliance with any applicable-
(a) collective agreement;
(b) arbitration award;
(c) determination made in terms of the Wage Act.
(2) An employer who is required to keep records in terms of
subsection (1) must-
(a) retain those records in their original form or a reproduced form
for a period of three years from the date of the event or end of the
period to which they relate; and
(b) submit those records in their original form or a reproduced form
in response to a demand made at any reasonable time, to any agent of
a bargaining council, commissioner or any person whose functions in
terms of this Act include the resolution of disputes.
(3)
(a) An employer must keep a record of the prescribed details of any
strike, lock-out or protest action involving its employees.
(b) An employer must submit those records in the prescribed manner
to the registrar.
206. Effect of certain defects and irregularities
(1) Despite any provision in this Act or any other law, a defect
does not invalidate-
(a) the constitution or the registration of any registered trade
union, registered employers' organisation or council;
(b) any collective agreement or arbitration award that would
otherwise be binding in terms of this Act;
(c) any act of a council; or
(d) any act of the director or a commissioner.
(2) A defect referred to in subsection (1) means-
(a) a defect in, or omission from, the constitution of any
registered trade union, registered employers' organisation or
council;
(b) a vacancy in the membership of any council; or
(c) any irregularity in the appointment or election of-
(i) a representative to a council;
(ii) an alternate to any representative to a council;
(iii) a chairperson or any other person presiding over any meeting
of a council or a committee of a council; or
(iv) the director or a commissioner.
207. Ministers empowered to add and change to Schedules
(1) The Minister, after consulting NEDLAC, by notice in the
Government Gazette, may change, replace or add to Schedules 2 and 4
to this Act and the Schedule envisaged in subsection (3).
(2) [Deleted]
(3) The Minister, after consulting NEDLAC, by notice in the
Government Gazette, may add to this Act a further Schedule
containing a model constitution for a statutory council.
(4) The Minister for the Public Service and Administration, after
consulting the Public Service Co-ordinating Bargaining Council, by
notice in the Government Gazette, may add to this Act a further
schedule regulating the establishment and the constitutions of
workplace forums in the public service.
(5) The Minister may add to, change or replace any page header or
footnote.
208. Regulations
The Minister, after consulting NEDLAC and when appropriate, the
Commission, may make regulations not inconsistent with this Act
relating to-
(a) any matter that in terms of this Act may or must be prescribed;
and
(b) any matter that the Minister considers necessary or expedient to
prescribe or have governed by regulation in order to achieve the
primary objects of this Act.
208A. Delegations
(1) The Minister, in writing, may delegate to the Director-General
or any other officer of the Department of Labour any power, function
or duty conferred or imposed upon the Minister in terms of this Act,
except the powers, functions and duties contemplated in section 32
(but excluding subsection (6)), and sections 44, 207 and 208.
(2) A delegation in terms of subsection (1) does not limit or
restrict the competence of the Minister to exercise or perform any
power, function or duty that has been delegated.
(3) The Minister may make a delegation subject to any conditions or
restrictions that are deemed fit.
(4) The Minister may at any time –
(a) withdraw a delegation made in terms of subsection (1); and
(b) withdraw or amend any decision made by a person in exercising a
power or performing a function or duty delegated in terms of
subsection (1).
209. This Act binds the State
This Act binds the State.
210. Application of Act when in conflict with other laws
If any conflict, relating to the matters dealt with in this Act,
arises between this Act and the provisions of any other law save the
Constitution or any act expressly amending this Act, the provisions
of this Act will prevail.
211. Amendment of laws
Each of the laws referred to in items I and 2 of Schedule 5 is
hereby amended to the extent specified in those items.
212. Repeal of laws, and transitional arrangements
(1) Each of the laws referred to in the first two columns of
Schedule 6 is hereby repealed to the extent specified opposite that
law in the third column of that Schedule.
(2) The repeal of those laws does not affect any transitional
arrangements made in Schedule 7.
(3) The transitional arrangements in Schedule 7 must be read and
applied as substantive provisions of this Act.
213. Definitions.
In this Act, unless the context otherwise indicates –
"area" includes any number of areas, whether or not contiguous;
"auditor" means any person who is registered to practise in the
Republic as a public accountant and auditor;
"bargaining council" means a bargaining council referred to in
section 27 and includes, in relation to the public service, the
bargaining councils referred to in section 35;
"Basic Conditions of Employment Act" means the Basic Conditions of
Employment Act, 1997 (Act No.75 of 1997);
"code of good practice" means a code of practice issued by NEDLAC in
terms of section 203(1) of this Act;
"collective agreement" means a written agreement concerning terms
and conditions of employment or any other matter of mutual interest
concluded by one or more registered trade unions, on the one hand
and, on the other hand-
(a) one or more employers;
(b) one or more registered employers' organisations; or
(c) one or more employers and one or more registered employers'
organisations; " council" includes a bargaining council and a
statutory council;
"director" means the director of the Commission appointed in terms
of section II 8(1) and includes any acting director appointed in
terms of section 119; "dismissal" means dismissal as defined in
section 186;
"dispute" includes an alleged dispute;
"employee "54 means –
(a) any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled to
receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an employer, and "employed" and
"employment" have meanings corresponding to that of " employee";
54. "Employee" is given a different and specific meaning in section
78 in Chapter V.
"employers' organisation" means any number of employers associated
together for the purpose, whether by itself or with other purposes,
of regulating relations between employers and employees or trade
unions;
“employment law” includes this Act, any other act the administration
of which has been assigned to the Minister, and nay of the following
acts:
(a) the Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
(b) the Skills Development Act, 1998 (Act No. 97 of 1998);
(c) the Employment Equity Act, 1998 (Act No. 55 of 1998);
(d) the Occupational Health and Safety Act, 1993 (Act No. 85 of
1993); and
(e) the Compensation for Occupational Injuries and Diseases Act,
1993 (Act No. 130 of 1993);
"essential service" means –
(a) a service the interruption of which endangers the life, personal
safety or health of the whole or any part of the population;
(b) the Parliamentary service;
(c) the South African Police Services;
"issue in dispute", in relation to a strike or lock-out, means the
demand, the grievance, or the dispute that forms the subject matter
of the strike or lock-out;
"legal practitioner" means any person admitted to practise as an
advocate or an attorney in the Republic;
"lock out" means the exclusion by an employer of employees from the
employer's workplace, for the purpose of compelling the employees to
accept a demand in respect of any matter of mutual interest between
employer and employee, whether or not the employer breaches those
employees' contracts of employment in the course of or for the
purpose of that exclusion;
"Minister" means the Minister of Labour;
"NEDLAC" means the National Economic Development and Labour Council
established by section 2 of the National Economic, Development and
Labour Council Act, 1994 (Act No. 35 of 1994);
"office-bearer" means a person who holds office in a trade union,
employers' organisation, federation of trade unions, federation of
employers' organisations or council and who is not an official;
"official", in relation to a trade union, employers' organisation,
federation of trade unions or federation of employers' organisations
means a person employed as the secretary, assistant secretary or
organiser of a trade union, employers' organisation or federation,
or in any other prescribed capacity, whether or not that person is
employed in a full-time capacity. And, in relation to a council
means a person employed by a council as secretary or in any other
prescribed capacity, whether or not that person is employed in a
full-time capacity;
"operational requirements" means requirements based on the economic,
technological, structural or similar needs of an employer;
"prescribed" means prescribed from time to time by regulation in
terms of section 208;
"protest action" means the partial or complete concerted refusal to
work, or the retardation or obstruction of work, for the purpose of
promoting or defending the socio-economic interests of workers, but
not for a purpose referred to in the definition of strike;
"public service" means the national departments, provincial
administrations, provincial departments and organisational
components contemplated in section 7(2) of the Public Service Act,
1994 (promulgated by Proclamation No. 103 of 1994), but excluding-
(a) the members of the South African National Defence Force;
(b) the National Intelligence Agency; and
(c) the South African Secret Service.
"registered scope" means-
(a) in the case of the Public Service Co-ordinating Bargaining
Council, the public service as a whole, subject to section 36;
(b) in the case of bargaining councils established for sectors in
the public service, the sector designated by the Public Service
Co-ordinating Bargaining Council in terms of section 37(1);
(c) in the case of any other council, the sector and area in respect
of which it is registered in terms of this Act;
"registrar" means the registrar of labour relations appointed in
terms of section 108 and includes-
(a) any deputy registrar appointed in terms of that section when
acting on the direction or under a general or special delegation of
the registrar; and
(b) any acting registrar appointed in terms of that section;
"remuneration" means any payment in money or in kind, or both in
money and in kind, made or owing to any person in return for that
person working for any other person, including the State, and
"remunerate" has a corresponding meaning;
"Republic"-
(a) when used to refer to the State as a constitutional entity,
means the Republic of South Africa as defined in section I of the
Constitution; and
(b) when used in the territorial sense, means the national territory
of the Republic as defined in section I of the Constitution;
"sector" means, subject to section 37, an industry or a service;
"serve " means to send by registered post, telegram, telex, telefax
or to deliver by hand;
"statutory council" means a council established in terms of Part E
of Chapter 111;
"strike" means the partial or complete concerted refusal to work, or
the retardation or obstruction of work, by persons who are or have
been employed by the same employer or by different employers, for
the purpose of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between employer and
employee, and every reference to "work" in this definition includes
overtime work, whether it is voluntary or compulsory;
"this Act" includes the section numbers, the Schedules, except
Schedules 4 and 8, and any regulations made in terms of section 208,
but does not include the page headers, the headings or footnotes;
"trade union" means an association of employees whose principal
purpose is to regulate relations between employees and employers,
including any employers' organisations;
"trade union representative" means a member of a trade union who is
elected to represent employees in a workplace-,
"Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957);
"working hours" means those hours during which an employee is
obliged to work;
"workplace"-
(a) in relation to the public service –
(i) for the purposes of collective bargaining and dispute
resolution, the registered scope of the Public Service Co-ordinating
Bargaining Council or a bargaining council in a sector in the public
service, as the case may be; or
(ii) for any other purpose, a national department, provincial
administration, provincial department or organisational component
contemplated in section 7(2) of the Public Service Act, 1994
(promulgated by Proclamation No. 103 of 1994), or any other part of
the public service that the Minister for Public Service and
Administration, after consultation with the Public Service
Co-ordinating Bargaining Council, demarcates as a workplace.;
(c) in all other instances means the place or places where the
employees of an employer work. If an employer carries on or 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; and
"workplace forum" means a workplace forum established in terms of
Chapter V.
214. Short title and commencement
(1) This Act is called the Labour Relations Act, 1995.
(2) This Act will come into operation on a date to be determined by
the President by proclamation in the Government Gazette, except in
the case of any provision in relation to which some other
arrangement regarding commencement is made elsewhere in this Act.
SCHEDULE I
ESTABLISHMENT OF BARGAINING COUNCILS FOR PUBLIC SERVICE
1. Definitions for this Schedules
In this Schedule, unless the context otherwise indicates
"Education Labour Relations Act" means the Education Labour
Relations Act, 1993 (Act No. 146 of 1993);
"Education Labour Relations Council" means the council established
by section 6(1) of the Education Labour Relations Act;
"National Negotiating Forum" means the National Negotiating Forum
established for the South African Police Service by the South
African Police Service Labour Relations Regulations, 1995;
"Public Service Bargaining Council" means the council referred to in
section 5(l) of the Public Service Labour Relations Act;
"Public Service Labour Relations Act" means the Public Service
Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of
1994).
2. Establishment of Public Service Co-ordinating Bargaining Council
(1) As soon as practicable after the commencement of this Act, the
Commission, by notice in the Government Gazette, must invite the
employee and employer representatives in the Education Labour
Relations Council, the National Negotiating Forum and the central
chamber of the Public Service Bargaining Council to attend a
meeting, with a view to those representatives agreeing on a
constitution for the Public Service Co-ordinating Bargaining
Council.
(2) The Commission must appoint a commissioner to chair the meeting
and facilitate the conclusion of an agreement on a constitution that
meets the requirements of section 30, read with the changes required
by the context.
(3) The parties to the Education Labour Relations Council, the
National Negotiating Forum and the central chamber of the Public
Service Bargaining Council will be the founding parties to the
Public Service Co-ordinating Bargaining Council.
(4) If an agreement is concluded and the registrar is satisfied that
the constitution meets the requirements of section 30, the registrar
must register the Public Service Co-ordinating Bargaining Council by
entering its name in the register of councils.
(5) If no agreement is concluded on a constitution, the registrar
must-
(a) determine the constitution for the Public Service Co-ordinating
Bargaining Council;
(b) register the Public Service Co-ordinating Bargaining Council by
entering its name in the register of councils; and
(c) certify the constitution as the constitution of the Public
Service Co-ordinating Bargaining Council.
(6) After registering the Public Service Co-ordinating Bargaining
Council, the registrar must-
(a) issue a certificate of registration that must specify the
registered scope of the Public Service Co-ordinating Bargaining
Council; and
(b) send the certificate and a certified copy of the constitution to
the Public Service Co-ordinating Bargaining Council.
3. Establishment of bargaining councils in sectors
(1) The departmental and provincial chambers of the Public Service
Bargaining Council are deemed to be bargaining councils established
in terms of section 37(3)(a) of this Act, subject to any designation
in terms of section 37(l) of this Act.
(2) The Education Labour Relations Council is deemed to be a
bargaining council established in terms of section 37(3)(b) of this
Act.
(3) The National Negotiating Forum is deemed to be a bargaining
council established for a sector designated in terms of section
37(2).
(4) If the President designates a sector in terms of section 37(2),
the President must inform the Commission and instruct it to convene
a meeting of the representatives of the registered trade unions with
members employed in the sector.
(5) The Commission must publish a notice in the Government Gazette
inviting registered trade unions with members employed in the sector
to attend the meeting.
(6) The Commission must appoint a commissioner to chair the meeting
and facilitate the conclusion of an agreement on-
(a) the registered trade unions to be parties to the bargaining
council; and
(b) a constitution that meets the requirements of section 30, read
with the changes required by the context.
(7) If agreement is concluded, the registrar must-
(a) admit the registered trade unions as parties to the bargaining
council; and
(b) if satisfied that the constitution meets the requirements of
section 30, register the bargaining council by entering its name in
the register of councils.
(8) If no agreement is concluded on-
(a) the registered trade unions to be admitted, the Commission must
decide which trade unions should be admitted;
(b) a constitution, the registrar, in accordance with the decisions
made by the Commission in paragraph (a), must determine a
constitution that meets the requirements of section 30, read with
the changes required by the context.
(9) The registrar must register the bargaining council for the
sector by entering its name in the register of councils.
(10) After registering the bargaining council, the registrar must-
(a) issue a certificate of registration that must specify the
registered scope of the bargaining council; and
(b) send the certificate and a certified copy of the constitution to
the bargaining council.
SCHEDULE 2
GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM
1. Introduction
(1) This Schedule contains guidelines for the constitution of a
workplace, forum. It Is intended to guide representative trade
unions that wish to establish a workplace forum, employers and
commissioners.
(2) This Act places the highest value on the establishment of
workplace forums by agreement between a representative trade union
and an employer. The role of the commissioner is to facilitate an
agreement establishing the structure and functions of a workplace
forum. If agreement is not possible, either in whole or in part, the
commissioner must refer to this Schedule, using its guidelines in a
manner that best suits the particular workplace involved.
(3) For convenience, the guidelines follow the sequence of the
paragraphs in section 82 of this Act.
2. Number of seats in workplace forums (section 82(1)(a))
The formula to determine the number of seats in the workplace forum
should reflect the size, nature, occupational structure and physical
location of the workplace. A guideline may be-
(a) in a workplace in which 100 to 200 employees are employed, five
members;
(b) in a workplace in which 201 to 600 employees are employed, eight
members;
(c) in a workplace in which 601 to 1 000 employees are employed, IO
members;
(d) in a workplace in which more than 1 000 employees are employed,
10 members for the first 1 000 employees, plus an additional member
for every additional 500 employees, up to a maximum of 20 members.
3. Distribution of seats to reflect occupational structure (section
82(1)(b))
The formula to determine the distribution of seats in the workplace
forum must reflect the I occupational structure of the workplace.
Example:
There are 300 employees in a workplace. The occupational structure
is as follows: 200 employees are manual employees; 50 are
administrative and clerical employees; and 50 are supervisory,
managerial and technical employees. The six seats may be distributed
as follows4 seats for members to be elected from candidates
nominated from among the manual employees
I seat for members to be elected from candidates nominated from
among the administrative and clerical employees
I seat for members to be elected from candidates nominated from
among the supervisory, managerial and technical employees.
4. Elections (section 82(1)(c), (d), (g), (h), (i) and (j))
(1) The constitution must include provisions concerning the
appointment of an election officer.
Example:
(a) Every election or by-election in relation to a workplace forum
must be conducted by an election officer appointed by agreement
between the representative trade union and the employer.
(b) If the trade union and the employer cannot agree, the trade
union may apply to the Commission to appoint an election officer.
(c) The Commission must appoint an election officer to conduct a
by-election only if it is satisfied that the workplace forum cannot
function adequately without a by-election.
(2) The constitution must set out what the election officer should
do and the procedure for an election.
Example:
(a) Thirty days before each election of members of the workplace
forum, the election officer must-
(i) prepare a list of all employees in the workplace; and
(ii) call for nominations for members of the workplace, forum.
(b) Any employee may be nominated as a candidate for election as a
member of the workplace forum by-
(i) any registered trade union with members employed in the work-
place;
(ii) a petition signed by not less than 20 per cent of the employees
in the workplace or 100 employees, whichever number of employees is
the smaller.
(c) Any employee who is a member or has previously served as a
member of a workplace forum is eligible for re-election.
(d) Fourteen days before each election of members of the workplace
forum, the election officer must-
(i) confirm that the nominated candidates qualify for election;
(ii) publish a list of all qualified candidates who have been
properly nominated; and
(iii) prepare a ballot for the election, listing the nominated
candidates in alphabetical order by surname.
(e) Voting must be by secret ballot.
Every employee is entitled to vote in the election of the workplace
forum during working hours at the employer's premises.
(f) Every employee in the workplace is entitled to cast a number of
votes equal to the number of members to be elected to the workplace
forum.
(g) Every employee may cast one or more of those votes in favour of
any candidate.
5. Terms of office (section 82(1)(k), (l) and (m))
(1) The constitution must provide that the members of a workplace
forum remain in office until the first meeting of the newly elected
workplace forum.
(2) The constitution must include provisions allowing the members to
resign as well as provisions for the removal of members from office.
Example:
(a) A member of a workplace forum may resign by giving written
notice to the chairperson.
(b) A member of a workplace forum must vacate that office-
(i) when the member's resignation takes effect;
(ii) if the member is promoted to senior managerial status;
(iii) if the member is transferred from the workplace;
(iv) if the member's employment is terminated;
(v) as a result of an award of a commissioner; or
(vi) if the representative trade union that nominated a member
removes the member.
(c) The representative trade union, the employer, or the workplace
forum may apply to the Commission to have a member of the workplace
forum removed from office on the grounds of gross dereliction of the
duties of office.
(d) Twenty percent of the employees in the workplace may submit a
signed petition to the Commission applying for the removal from
office of a member of the workplace forum on the grounds of gross
dereliction of the duties of office.
(e) An application to remove a member of a workplace forum from
office must be decided by arbitration under the auspices of the
Commission.
A by-election to fill any vacancy in the workplace forum must be
conducted by an election officer.
6. Meetings of workplace forum (section 82(1)(n))
The constitution must include provisions governing meetings of the
workplace forum.
Example:
(a) The first meeting of a newly elected workplace forum must be
convened by the election officer as soon as practicable after the
election.
(b) At that meeting the members of the workplace forum must elect
from among their number a chairperson and a deputy chairperson.
(c) The workplace forum must meet whenever necessary, but at least
once a month.
(d) A quorum of the workplace forum must be a majority of the
members of the workplace forum holding office at any time.
(e) A decision of the majority of the members of the workplace forum
present at the meeting must be the decision of the workplace forum.
The meetings between members of the workplace forum and the
employees should be at least four times a year.
Example 1:
In a workplace that is a single place, the meetings with the
employees should be with all the members of the workplace forum.
Example 2:
In a workplace that is geographically dispersed, the meetings with
the employees need not be with all the members of the workplace
forum, but with one or more members of the workplace forum.
7. Time off for members of workplace forum (section 82(1)(p))
The constitution must include provisions governing time off for
members to perform their functions.
Example:
(a) A member of a workplace forum is entitled to take reasonable
time off during working hours with pay for the purpose of
(i) performing the functions and duties of a member; and
(ii) undergoing training relevant to the performance of those
functions and duties.
(b) The right to time off is subject to conditions that are
reasonable, so as to prevent the undue disruption of work.
(c) The costs associated with the training must be paid by the
employer, if those costs are reasonable, having regard to the size
and capabilities of the employer.
8. Facilities to be provided to workplace forum (section 82(1)(r))
The constitution must require the employer to provide adequate
facilities to the workplace forum to perform its functions.
Example:
(a) The employer must provide, at its cost-
(i) fees, facilities and materials that are necessary for the
conduct of elections and by-elections of the workplace forum; and
(ii) administrative and secretarial facilities that are appropriate
to enable the members of the workplace forum to perform their
functions and duties.
(b) These facilities must include, but are not limited to, a room in
which the workplace forum may meet and access to a telephone.
(c) The costs incurred by the employer in complying with the
provisions of paragraphs (a) and (b) must be reasonable, having
regard to the size and capabilities of the employer.
9. Experts (section 82(1)(t))
The constitution may provide for the use of experts.
Example:
(a) A workplace forum may ask experts to assist it in the
performance of any of its functions.
(b) An expert must ensure that there is no conflict of interest
between the assistance given to one workplace forum and another.
(c) An expert may attend any meeting of the workplace forum and, at
its request, address any meetings of the workplace forum including a
meeting with the employer or the employees.
(d) An expert is entitled to any information to which the workplace
forum is entitled and may inspect and copy any document.
10. Establishment of coordinating and subsidiary workplace forums
(section 82(2)(b))
(1) Where an employer carries on or conducts two or more operations
that are independent of each other by reason of their size, function
or organisation, the constitution may provide for the establishment
of a coordinating workplace forum with jurisdiction over those
matters mentioned in sections 84 and 86 that affect the employees
generally and for the establishment of a subsidiary workplace forum
in each of the workplaces with jurisdiction over those matters that
affect only the employees in that workplace.
(2) Where the employer has a workplace that is geographically
dispersed and there are matters that are of local interest rather
than general interest, the constitution may establish a coordinating
workplace forum with general jurisdiction and subsidiary workplace
forums with local interest jurisdiction.
Example:
A bank with a head office may have many branches dispersed around
the country.
If the branches are not regarded as separate workplaces, the bank
may have one workplace forum for all its employees or the
constitution may allow for the establishment of a coordinating
workplace forum at head office level and in certain or all of the
branches allow the establishment of subsidiary workplace forums that
will deal with matters that affect only the employees in those
branches.
SCHEDULE 3
COMMISSION FOR CONCILIATION, MEDIATION & AMP; ARBITRATION
1. Remuneration and allowances of members of governing body
The Minister, after consulting the Minister of Finance, must
determine the remuneration and allowances and any other terms and
conditions of appointment of members of the governing body.
2. Resignation and removal from office of member of governing body
(1) A member of the governing body may resign by giving notice to
the governing body.
(2) The Minister, acting on the advice of NEDLAC, may remove a
member of the governing body from office for
(a) serious misconduct;
(b) incapacity; or
(c) being absent from three consecutive meetings of the governing
body without good cause or prior permission from the chairperson.
3. Vacancies in governing body
(1) A vacancy in the governing body exists whenever
(a) a member's term of office ends;
(b) a member's resignation takes effect;
(c) a member is removed from office; or
(d) a member dies.
(2) The Minister must fill a vacancy in the governing body as soon
as is practicable.
In the meantime, the Commission's proceedings and decisions continue
to be valid.
(3) If a vacancy-
(a) is owing to the end of a member's term of office, the Minister
may reappoint the member, or appoint another person nominated by
NEDLAC in accordance with section 116(2) and (3);
(b) is owing to any other cause, the Minister must appoint another
person nominated by NEDLAC in accordance with section 116(2) and (3)
to replace the member and serve the unexpired portion of the
replaced member's term of office.
4. Proceedings of governing body
(1) The governing body must determine procedures for its meetings.
(2) A quorum for a meeting of the governing body is three members of
the governing body. The quorum must include-
(a) one member who was nominated by those voting members of NEDLAC
who represent organised business;
(b) one member who was nominated by those voting members of NEDLAC
who represent organised labour; and
(c) one member who was nominated by those voting members of NEDLAC
who represent the State.
(3) Despite subitem (2), a meeting of the governing body may be held
in the absence of any member representing organised business or
organised labour or the State, if those members have agreed to the
meeting proceeding in the absence of that member and to the issues
which may be dealt with in the absence of that member.
(4) If the chairperson is absent from a meeting of the governing
body, the members present must elect one of themselves to preside at
that meeting, and at that meeting that member may exercise or
perform any function of the chairperson.
(5) A defect or error in the appointment of a member of the
Commission does not affect the validity of the Commission's
proceedings or decisions.
5. Director of Commission
(1) The director may resign by giving written notice to the
governing body.
(2) The governing body may remove the director from office for-
(a) serious misconduct;
(b) incapacity;
(c) a material violation of the Commission's code of conduct; or
(d) being absent from three consecutive meetings of the governing
body without good cause or prior permission from the chairperson.
(3) A vacancy in the office of director exists whenever-
(a) the director reaches the age of 65;
(b) the director's resignation takes effect;
(c) the governing body removes the director from office; or
(d) the director dies.
(4) The governing body must appoint a director in accordance with
the provisions of section II 8 as soon as practicable after the
office of the director becomes vacant.
6. Bank account.
The governing body must open and maintain an account in the name of
the Commission with a bank registered in the Republic, or with
another registered financial institution approved by the Minister of
Finance and, subject to item 7, must
(a) deposit to that account any money that the Commission receives;
and
(b) make all payments on behalf of the Commission from that account.
7. Investment of surplus money
The governing body may resolve to invest any money that the
Commission does not immediately require to meet current expenditure
or contingencies
(a) on call or short-term deposit with any bank that meets the
requirements stated in item 6;
(b) if the Minister, with the concurrence of the Minister of
Finance, gives written approval of the duration and other terms of
the investment, in an investment account with the Corporation for
Public Deposits.
8. Accounting and auditing
The Commission must, to the standards of generally accepted
accounting practice, principles and procedures
(a) keep books and records of its income, expenditure, assets and
liabilities;
(b) as soon as practicable after the end of each financial year,
prepare financial statements, including at least a statement of
income and expenditure for the previous financial year and a balance
sheet showing its assets, liabilities and financial position as at
the end of the previous financial year-, and
(c) each year, arrange for the Auditor-General to audit its books
and records of account and its financial statements.
9. Annual report
(1) As soon as practicable after the end of each financial year, the
Commission must provide the Minister with a report concerning the
activities and the financial position of the Commission during the
previous financial year.
(2) The Minister must table the Commission's annual report in
Parliament within 14 days of receiving it from the Commission, but
if Parliament is not in session at that time, the Minister must
table the report within 14 days of the beginning of the next session
of Parliament.
SCHEDULE 4
DISPUTE RESOLUTION: FLOW DIAGRAMS
This Schedule contains flow diagrams that provide guidelines to the
procedures for the resolution of some of the more important disputes
that may arise under this Act. This Schedule is not part of this
Act. It does not have the force of law. The flow diagrams are
intended only to provide assistance to those parties who may become
involved in a dispute.
The flow diagrams do not indicate the rights that parties may have
to seek urgent interim relief, nor do they indicate the right of
review or appeal that parties have to the Labour Court or the Labour
Appeal Court in certain cases. This Act sets out the circumstances
in which these rights are available.
Awards and determinations by arbitrators are enforceable ultimately
by the Labour Court.
FLOW DIAGRAMS I TO 14 [Currently unavailable]
SCHEDULE 5
AMENDMENT OF LAWS
1. Amendment of section 1 of Basic Conditions of Employment Act
Section 1 of the Basic Conditions of Employment Act is hereby
amended by the substitution for subsection (3) of the following
subsection –
"(3) The Mines and Works Act, 1956 (Act No. 27 of 1956), the Wage
Act, 1957 (Act No. 5 of 1957), the Manpower Training Act, 1981 (Act
No. 56 of 1981) and the Labour Relations Act, 1995, as well as any
matter regulated under any of them in respect of an employee, shall
not be affected by this Act, but this Act shall apply in respect of
any such employee in so far as a provision thereof provides for any
matter which is not regulated by or under any of the said Acts in
respect of such employee.".
2. Amendment of section 35 of Occupational Health and Safety Act,
1993
Section 35 of the Occupational Health and Safety Act, 1993 (Act No.
85 of 1993), is hereby amended-
(a) by the substitution for the words "Industrial court", wherever
they occur in subsection (3), of the words "Labour Court"; and
(b) by the substitution for subsection (4) of the following
subsection-
"(4) Any person who wishes to appeal in terms of subsection (3),
shall within 60 days after the chief inspector's decision was given,
lodge the appeal with the registrar of the Labour Court in
accordance with the Labour Relations Act, 1995, and the rules of the
Labour Court. ".
3. Amendment of section 2 of Pension Funds Act, 1956
Section 2 of the Pension Funds Act, 1956 (Act No. 24 of 1956), is
hereby amended by the substitution for subsection (1) of the
following subsection:
(1) The provisions of this Act shall not apply in relation to any
pension fund which has been established or continued in terms of a
collective agreement concluded in a council in terms of the Labour
Relations Act 1995 (Act No. 66 of 1995), before the Labour Relations
Amendment Act, 1998, has come into operation, nor in relation to a
pension fund so established or continued and which, in terms of a
collective agreement concluded in that council after the coming into
operation of the labour Relations Amendment Act, 1998, is continued
or further continued (as the case may be). However, such a pension
fund shall from time to time furnish the Registrar with such
statistical information as may be requested by the Minister.
4. Amendment of section 2 of Medical Schemes Act, 1967
Section 2(1) of the Medical Schemes Act, 1967 (Act No. 72 of 1967),
is hereby amended by the substitution for paragraph (g) of the
following paragraph:
(f) shall, subject to the provisions of subsection (2A) apply with
reference to -
(i) a particular medical scheme established or continued in terms of
a collective agreement concluded in a council in terms of the Labour
Relations Act, 1995 (Act No. 66 of 1995), before the Labour
Relations Amendment Act, 1998, has come into operation;
(ii) a particular medical scheme which was established or continued
in the circumstances mentioned in subparagraph (i) and which, in
terms of a collective agreement so concluded in that council after
the coming into operation of the Labour Relations Amendment Act,
1998, is continued or further continued (as the case may be), only
if the Minister, at the request of the Minister of Labour and by
notice in the Gazette, has declared the said provisions to be
applicable with reference to such a particular medical scheme;
5. Amendment of section 1 of Insurance Act, 1943
Section 1(1) of the Insurance Act, 1943 (Act No. 27 of 1943), is
hereby amended by the substitution for paragraph (d) of the
definition of ‘insurance business’ of the following paragraph:
‘(d) any transaction under the Labour Relations Act, 1995 (Act No.
66 of 1995);’
6. Amendment of section 2 of Friendly Societies Act, 1956
Section 2(1) of the Friendly Societies Act, 1956 (Act No. 25 of
1956), is hereby amended by the substitution for paragraph (g) of
the following paragraph:
‘(g) the relief or maintenance of members, or any group of members,
when unemployed or in distressed circumstances, otherwise than in
consequence of the existence of a strike or lockout as defined in
section 213 of the Labour Relations Act, 1995 (Act No. 66 of 1995);’
7. Amendment of section 3 of Friendly Societies Act, 1956
Section 3(1) of the Friendly Societies Act, 1956, is hereby amended
by the substitution for paragraph (a) of the following paragraph:
‘(a) which has been established or continued in terms of a
collective agreement concluded in a council in terms of the Labour
Relations Act, 1995. However, such a friendly society shall from
time to time furnish the registrar with such statistical information
as may be requested by the Minister;’
SCHEDULE 6
LAWS REPEALED BY SECTION 212
Number and year of law Short title Extent of repeal
Act No.28 of 1956 Labour Relations Act, 1956 The whole
Act No.41 of 1959 Industrial Conciliation Amendment Act, 1959 The
whole
Act No.18 of 1961 Industrial Conciliation Amendment Act, 1961 The
whole
Act No.43 of 1966 Industrial Conciliation Amendment Act, 1966 The
whole
Act No.61 of 1966 Industrial Conciliation Further Amendment Act,
1966 The whole
Act No.104 of 1967 Industrial Conciliation Amendment Act, 1967 The
whole
Act No.21 of 1970 Industrial Conciliation Amendment Act, 1970 The
whole
Act No.94 of 1979 Industrial Conciliation Amendment Act, 1979 The
whole
Act No.95 of 1980 Industrial Conciliation Amendment Act, 1980 The
whole
Act No.57 of 1981 Labour Relations Amendment Act, 1981 The whole
Act No.51 of 1982 Labour Relations Amendment Act, 1982 The whole
Act No. 2 of 1983 Labour Relations Amendment Act, 1983 The whole
Act No.81 of 1984 Labour Relations Amendment Act, 1984 The whole
Act No.83 of 1988 Labour Relations Amendment Act, 1988 The whole
Act No. 9 of 1991 Labour Relations Amendment Act, 1991 The whole
Act No.129 of 1993 General Law Third Amendment Act, 1993 Section 9
only
Act No.146 of 1993 Education Labour Relations Act, 1993 The whole
Act No.147 of 1993 Agricultural Labour Act, 1993 Chapter I only
Act No.50 of 1994 Agricultural Labour Amendment Act, 1994 Section I
only
Proclamation No.105 Public Service Labour Relations Act, 1994 The
whole of 1994
Proclamation No.128 Education Labour Relations Act, Amendment The
whole except of 1994
Proclamation, 1994 section 6
Proclamation No.134 Sections 1 and 2 only of 1994
South African Police Service Labour Relations Regulations, The whole
1995
SCHEDULE 7
TRANSITIONAL ARRANGEMENTS
Part A – Definitions for this Schedule
Definitions for this Schedule
In this Schedule, unless the context otherwise indicates –
"Agricultural Labour Act" means the Agricultural Labour Act, 1993
(Act No. 147 of 1993);
"Education Labour Relations Act" means the Education Labour
Relations Act, 1993 (Act No. 146 of 1993);
"Education Labour Relations Council" means the council established
by section 6(1) of the Education Labour Relations Act;
"Labour Relations Act" means the Labour Relations Act, 1956 (Act No.
28 of 1956);
"labour relations laws" means the Labour Relations Act, the
Education Labour Relations Act, Chapter I of the Agricultural Labour
Act and the Public Service Labour Relations Act;
"National Negotiating Forum" means the National Negotiating Forum
established for the South African Police Service by the South
African Police Service Labour Relations Regulations, 1995;
"pending" means pending immediately before this Act comes into
operation;
"public service" does not include the education sector;
"Public Service Bargaining Council" means the bargaining council
referred to in section 5(1) of the Public Service Labour Relations
Act;
"Public Service Labour Relations Act" means the Public Service
Labour Relations Act, 1994 (promulgated by Proclamation No. 105 of
1994);
"registrar" means the registrar of labour relations designated in
terms of section 108; and
"trade union" includes an employee organisation.
Part B – Unfair labour practices
Part C - Provisions Concerning Existing Trade Unions, Employers'
Organisations, Industrial Councils And Conciliation Boards
5. Existing registered trade unions and employers' organisations
(1) A trade union or employers' organisation registered or deemed to
be registered in terms of the labour relations laws immediately
before the commencement of this Act will be deemed to be a
registered trade union or registered employers' organisation under
this Act and continues to be a body corporate.
(2) As soon as practicable after the commencement of this Act, the
registrar must enter-
(a) the name of the trade union in the register of trade unions;
(b) the name of the employers' organisation in the register of
employers' organisations.
(3) A trade union or employers' organisation whose name has been
entered in the appropriate register must be issued with a new
certificate of registration.
(4) If any provision of the constitution of the trade union or
employers' organisation does not comply with the requirements of
section 95, the registrar may direct that trade union or employers'
organisation, in writing, to rectify its constitution and submit it
to the registrar within a period specified in the direction, which
period may not be shorter than three months.
(5) If a trade union or employers' organisation falls to comply with
a direction issued to it in terms of subitem (4), the registrar must
notify the trade union or employers' organisation that cancellation
of its registration is being considered because of the failure, and
give the trade union or employers' organisation an opportunity to
show cause why its registration should not be cancelled within 30
days of the notice.
(6) If, when the 30-day period expires, the relevant trade union or
employers' organisation has not shown cause why its registration
should not be cancelled, the registrar must cancel the registration
of that trade union or employers' organisation by removing its name
from the appropriate register or take other lesser steps that are
appropriate and not inconsistent with this Act.
(7) The registrar must notify the relevant trade union or employers'
organisation whether the registration of the trade union or
employers' organisation has been cancelled.
(8) Cancellation in terms of subitem (6) takes effect-
(a) if the trade union or the employers' organisation has failed,
within the time contemplated in section 111 (3), to appeal to the
Labour Court against the cancellation, when that period expires; or
(b) if the trade union or the employers' organisation has lodged an
appeal, when the decision of the registrar has been confirmed by the
Labour Court.
6. Pending applications by trade unions or employers' organisations
for registration, variation of scope, alteration of constitution or
name
(1) Any pending application in terms of the labour relations laws
for the registration, variation of scope of registration or
alteration of the constitution or name of a trade union or an
employers' organisation must be dealt with by the registrar as if
the application had been made in terms of this Act.
(2) The registrar appointed in terms of the Public Service Labour
Relations Act and the secretary of the Education Labour Relations
Council appointed in terms of the Education Labour Relations Act
must forward any pending application referred to in subitem (1) to
the registrar.
(3) In any pending appeal in terms of section 16 of the Labour
Relations Act or in terms of section 11 of the Education Labour
Relations Act or in terms of section 11 of the Public Service Labour
Relations Act, the Minister or the registrar of the industrial court
or the registrar of the High Court, as the case may be, must refer
the matter back to the registrar who must deal with the application
as if it were an application made in terms of this Act.
(4) When dealing with any application referred to in subitem (1) or
(2), the registrar-
(a) may condone any technical non-compliance with the provisions of
this Act; and
(b) may require the applicant to amend its application within 60
days in order to comply with the provisions of this Act.
7. Industrial councils
(1) An industrial council registered or deemed to be registered in
terms of the Labour Relations Act immediately before the
commencement of this Act will be deemed to be a bargaining council
under this Act and continues to be a body corporate.
(2) As soon as practicable after the commencement of this Act, the
registrar must enter the name of the bargaining council in the
register of councils.
(3) A bargaining council whose name has been entered in the register
of councils must be issued with a certificate of registration.
(4) If any provision of the constitution of a bargaining council
does not comply with the requirements of section 30, the registrar
may direct the bargaining council, in writing, to rectify its
constitution and submit it to the registrar within a period
specified in the direction, which period may not be shorter than
three months.
(5) If a bargaining council fails to comply with a direction issued
to it in terms of subitem (4), the registrar must notify the
bargaining council that cancellation of its registration is being
considered because of the failure, and give the bargaining council
an opportunity to show cause why its registration should not be
cancelled within 30 days of the notice.
(6) If, when the 30-day period expires, the bargaining council has
not shown cause why its registration should not be cancelled, the
registrar must cancel the registration of that bargaining council by
removing its name from the register of councils or take other lesser
steps that are appropriate and not inconsistent with this Act.
(7) The registrar must notify the bargaining council whether the
registration of the bargaining council has been cancelled.
(8) Cancellation in terms of subitem (6) takes effect-
(a) if the bargaining council has failed, within the time
contemplated in section 111(3), to appeal to the Labour Court
against the cancellation, when that period expires; or
(b) if the bargaining council has lodged an appeal, when the
decision of the registrar has been confirmed by the Labour Court.
8. Pending applications by industrial councils for registration and
variation of scope
(1) Any pending application for the registration or the variation of
the scope of registration of an industrial council in terms of the
Labour Relations Act must be dealt with as if it were an application
made in terms of this Act.
(2) In any pending appeal in terms of section 16 of the Labour
Relations Act against the refusal to register or vary the scope an
industrial council, the Minister or the registrar of the Supreme
[High] Court, as the case may be, must refer the matter to the
registrar of labour relations who must consider the application anew
as if it were an application for registration made in terms of this
Act.
(3) When dealing with the application referred to in subitem (1) or
(2), the registrar may-
(a) require the applicant to amend its application within 60 days in
order to comply with the provisions of this Act; and
(b) condone technical non-compliance with the provisions of this
Act.
8A. Pending enquiries by industrial registrar
Any pending inquiry conducted by the industrial registrar under
section 12(3) of the Labour Relations Act must, after the
commencement of this Act, be continued and dealt with further by the
same person in terms of the Labour Relations Act as if it had not
been repealed.
9. Pending applications by industrial councils for alteration of
constitution or name
The provisions in item 6 apply, read with the changes required by
the context, to any pending application for the alteration of the
constitution or the name of an industrial council in terms of the
Labour Relations Act.
10. Pending applications for admission of parties to industrial
councils
(1) Any pending application for admission of a party to an
industrial council in terms of section 21 A of the Labour Relations
Act must be dealt with by the industrial council as if it were an
application made in terms of this Act.
(2) Any pending appeal before the industrial court against a
decision of an industrial council in terms of section 21 A of the
Labour Relations Act must be with by council in the industrial court
as if the application had been made for admission as a party to a
bargaining council in terms of this Act.
(3) An appeal against a decision of an industrial council as
contemplated in section 21 A of the Labour Relations Act may,
despite the repeal of that Act, be instituted after the commencement
of this Act, and must be heard by the Labour Court and dealt with as
if the application for admission had been made in terms of this Act.
11. Pending applications to wind up and cancel registration of trade
unions, employers' organisations and industrial councils
Any pending application to wind up or to cancel the registration of
a trade union, employers' organisation or industrial council
registered in terms of any labour relations law must be dealt with
by the registrar as if the labour relations laws had not been
repealed.
12. Existing agreements and awards of industrial councils and
conciliation boards
(1)
(a) Any agreement promulgated in terms of section 48, any award
binding in terms of sections 49 and 50, and any order made in terms
of section 51A, of the Labour Relations Act and in force immediately
before the commencement of this Act, remains in force and
enforceable, subject to paragraphs (b) and (c) of this subitem, and
to subitem (5B), for a period of 18 months after the commencement of
this Act or until the expiry of that agreement, award or order,
whichever is the shorter period, in all respects, as if the Labour
Relations Act had not been repealed.
(b) On the request of any Council deemed by item 7(1) to be a
bargaining council, an agreement referred to in paragraph (a) that
had been concluded in that council –
i. if it expires before the end of the 18-month period referred to
in paragraph (a) may be extended or declared effective in accordance
with the provisions of subsection (4)(a) of section 48 of the Labour
Relations Act, for a period ending before or on the expiry of that
18-month period, which provisions, as well as any other provisions
of the Labour Relations Act relating to the industrial council
agreements extended or declared effective in terms of that
subsection, will apply in all respects, read with the changes
required by the context, in relation to any agreement extended or
declared effective on the authority of this subparagraph as if those
various provisions had not been repealed. However, the Minister may
not on the authority of this subparagraph declare an agreement to be
effective if it expires after 31 March 1997;
ii. may be cancelled, in whole or in part, in accordance with the
provisions of subsection (5) of section 48 of the Labour Relations
Act, which provisions, as well as any other provisions of the Labour
Relations Act relating to industrial council agreements wholly or
partly cancelled in terms of that subsection, will apply in all
respects, read with the changes required by the context, in relation
to any agreement wholly or partly cancelled on the authority of this
subparagraph as if those various provisions had not been repealed.
(c) An agreement referred to in paragraph (a) that had been
concluded by parties to a conciliation board –
i. if it expires before the end of the 18-month period referred to
in paragraph (a), may, at the request of the parties that were
represented on that conciliation board at the time of the conclusion
of that agreement, be extended in accordance with, and in the manner
provided for in, paragraph (b)(i) which will apply, read with the
changes required by the context, in relation to the extension of
agreements of that nature;
ii. may, at the request of those parties, be cancelled, in whole or
in part, in accordance with paragraph (b)(ii), which will apply,
read with the changes required by the context, in relation to the
cancellation of agreements of that nature.
(1A)
(a) An agreement referred to in subitem (1) that had been concluded
in a council deemed by item 7(1) to be a bargaining council, may be
amended or amplified by a further agreement concluded in that
bargaining council and promulgated in accordance with the provisions
of subsections (1) and (2) of section 48 of the Labour Relations
Act, which provisions will apply, in all respects, read with the
changes required by the context, for the purposes of this paragraph
as if they had not been repealed.
(b) Subitems (1)(b), (3) and (8)(a) will apply to any further
agreement concluded and promulgated on the authority of paragraph
(a) of this subitem, in all respects, as if it were an agreement
referred to in subitem (1)(a).
(2) An agreement promulgated in terms of section 12 of the Education
Labour Relations Act and in force immediately before the
commencement of this Act remains in force for a period of 18 months
after the commencement of this Act or until the expiry of that
agreement, whichever is the shorter period, as if the provisions of
that Act had not been repealed.
(3) Despite the provisions of subitem (1), an agreement referred to
in section 24(l)(x) of the Labour Relations Act that is in force
immediately before the commencement of this Act will be deemed to be
a closed shop agreement concluded in compliance with section 26 of
this Act except that-
(a) the requirements in section 26(3)(d) and section 98(2)(b)(ii)
become applicable at the commencement of the next financial year of
the trade union party to the agreement; and
(b) the commencement date of the closed shop agreement shall be
deemed to be the commencement date of this Act.
(4) Any pending request for the promulgation of an agreement in
terms of section 48 of the Labour Relations Act must be dealt with
as if the Labour Relations Act had not been repealed.
(5) Any request made before the expiry of six months after the
commencement of this Act for the promulgation of an agreement
entered into before the commencement of this Act must be dealt with
as if the Labour Relations Act had not been repealed.
(5A) Any exemption from an agreement or award, or from an order,
contemplated in subitem (1), that was in force immediately before
the commencement of this Act, will remain in force for a period of
18 months after the commencement of this Act or until the period for
which the exemption has been granted, has expired, whichever is the
shorter period, as if the Labour Relations Act had not been
repealed.
(5B) Any one or more of or all the provisions of an order referred
to in subitem (1)(a) may be cancelled, suspended or amended by the
Minister in accordance with the provisions of section 51A(4)(a) if
the Labour Relations Act, which provisions will apply for the
purposes of this subitem as if they had not been repealed.
(6) Any pending application for an exemption from all or any of the
provisions of any agreement or award remaining in force in terms of
subitem (1), or for an exemption from any provision of an order
remaining in force in terms of that subitem, must –
(a) in the case if that agreement or award, be dealt with in terms
of the provisions of section 51 and, whenever applicable, any other
relevant provisions, of the Labour Relations Act, in all respects,
read with the changes required by the context, as if the provisions
in question had not been repealed;
(b) in the case of that order, be dealt with in terms of the
provisions of section 51A and whenever applicable, any other
relevant provisions of the Labour Relations Act, as if the
provisions in question had not been repealed.
(7) An exclusion granted in terms of section 51(12) of the Labour
Relations Act will remain in force until it is withdrawn by the
Minister.
(8) After the commencement of this Act and despite the repeal of the
Labour Relations Act –
(a) any person or class of persons bound by an agreement or award
remaining in force in terms of subitem (1) may apply, in accordance
with the provisions of section 51 of the Labour Relations Act, for
an exemption from all or any of the provisions of that agreement or
award (as the case may be). Any application so made must be dealt
with in terms of the provisions of section 51 and, whenever
applicable, any other relevant provisions of the Labour Relations
Act, in all respects, as if the provisions in question had not been
repealed;
(b) any person, bound by an order remaining in force in terms of
subitem (1), may apply, in accordance with the provisions of section
51A of the Labour Relations Act, for an exemption from any provision
of that order. Any application so made must be dealt with in terms
of the provisions of section 51A and, whenever applicable, any other
relevant provisions of the Labour Relations Act, in all respects, as
if the provisions in question had not been repealed.
12A. Designated agents
(1) Any person appointed under section 62 of the Labour Relations
Act as a designated agent of an industrial council deemed by item
7(1) to be a bargaining council, who holds that office immediately
before the commencement of this Act, will be deemed to be a
designated agent appointed for the bargaining council under section
33 of this Act.
(2) The certificate of appointment that had been issued in terms of
section 62(2) of the Labour Relations Act to that designated agent,
will be deemed to have been issued in terms of section 33(2) of this
Act.
13. Existing agreements including recognition agreements
(1) For the purposes of this section, an agreement-
(a) includes a recognition agreement;
(b) excludes an agreement promulgated in terms of section 48 of the
Labour Relations Act;
(c) means an agreement about terms and conditions of employment or
any other matter of mutual interest entered into between one or more
registered trade unions, on the one hand, and on the other hand-
(i) one or more employers;
(ii) one or more registered employers' organisations; or
(iii) one or more employers and one or more registered employers'
organisations.
(2) Any agreement that was in force immediately before the
commencement of this Act is deemed to be a collective agreement
concluded in terms of this Act.
(3) Any registered trade union that is party to an agreement
referred to in subitems (1) and (2) in terms of which that trade
union was recognised for the purposes of collective bargaining is
entitled to the organisational rights conferred by sections I I to
16 of Chapter III and in respect of employees that it represents in
terms of the agreement, for so long as the trade union remains
recognised in terms of the agreement as the collective bargaining
agent of those employees.
(4) If the parties to an agreement referred to in subsection (1) or
(2) have not provided for a procedure to resolve any dispute about
the interpretation or application of the agreement as contemplated
in section 24(l), the parties to the agreement must attempt to agree
a procedure as soon as practicable after the commencement of this
Act.
(5) An existing non-statutory agency shop or closed shop agreement
is not binding unless the agreement complies with the provisions of
this item. Sections 25 and 26 of this Act become effective 180 days
after the commencement of this item.
Part D-Matters Concerning Public Service
14. Public Service Bargaining Council
(1) The Public Service Bargaining Council will continue to exist,
subject to item 20.
(2) The departmental and provincial chambers of the Public Service
Bargaining Council will continue to exist, subject to item 20.
(3) Within 30 days after the commencement of this Act, the chambers
of the Public Service Bargaining Council must furnish the registrar
with copies of their constitutions signed by their authorised
representatives.
(4) The constitutions of the chambers of the Public Service
Bargaining Council, are deemed to be in compliance with section 30.
However, where any provision of the constitution of a chamber does
not comply with the requirements of section 30, the registrar may
direct the chamber to rectify its constitution and re-submit the
rectified constitution within the period specified in the direction,
which period may not be shorter than three months.
(5) If a chamber fails to comply with a direction issued to it in
terms of subitem (5), the registrar must-
(a) determine the amendments to the constitution in order to meet
the requirements of section 30; and
(b) send a certified copy of the constitution to the chamber.
(6) A chamber of the Public Service Bargaining Council must deal
with any pending application for admission of a party to it in terms
of section 10 of the Public Service Labour Relations Act as if the
application had been made in terms of this Act.
(7) Any pending appeal before the industrial court or an arbitrator
against a decision of the Public Service Bargaining Council in terms
of section 10 of the Public Service Labour Relations Act must,
despite the repeal of any of the labour relations laws, be dealt
with by the industrial court or arbitrator as if the application had
been made in terms of this Act.
(8) Despite the repeal of the Public Service Labour Relations Act,
an appeal in terms of section 10 of that Act against a decision of a
chamber of the Public Service Bargaining Council may be instituted
after the commencement of this Act and must be heard by the Labour
Court and dealt with as if the application had been made in terms of
this Act.
15. Collective agreements in the public service
The following provisions, read with the changes required by the
context, of the Public Service Labour Relations Act, despite the
repeal of that Act, will have the effect and status of a collective
agreement binding on the State, the parties to the chambers of the
Public Service Bargaining Council and all employees in the public
service-
(a) section I for the purposes of this item unless the context
otherwise indicates;
(b) section 4(10);
(c) section 5(2), (3), (4)(a) and (5);
(d) section 7;
(e) section 8, except that the reference to section 5(l) should be a
reference to item 14(l);
(f) section 9(3);
(g) section 10(4) and (5);
(h) section 12;
(i) section 13, except that the reference to agreements should be a
reference to collective agreements including the collective
agreement contemplated in this item;
(j) sections 14, 15 and 16(2);
(k) section 17, except that the following subsection must be
substituted for subsection (4)(b)- "If the application of a trade
union for recognition is refused, the trade union, within 90 days of
the notice of the refusal, may refer the dispute to arbitration.";
and
(l) section 18, except that-
(i) the following subsection must be substituted for sub- section
(10)(a)- "An employee who or the employee organisation which in
terms of subsection (1) has declared a dispute, requested that a
conciliation board be established and submitted the completed
prescribed form, may refer the dispute to arbitration or to the
Labour Court in terms of the provisions of this Act and, in respect
of a dispute not contemplated by this Act, to any other court if-
(i) a meeting of a conciliation board is not convened as
contemplated in subsection (3);
(ii) the head of department concerned falls to request the
appointment of a chairperson in terms of subsection (5);
(iii) where applicable, the Commission fails to appoint a
chairperson of the conciliation board in terms of subsection (5);
(iv) the parties involved in the conciliation board have failed to
agree to extend the period of office of the conciliation board in
terms of subsection (7) until a settlement is reached;
(v) the conciliation board does not succeed in settling the dispute
within the period contemplated in subsection (7); or
(vi) the parties to the dispute agree that they will not be able to
settle the dispute and submit written proof thereof to the
Commission or relevant court."; and
(ii) any reference to the Department of Labour should be a reference
to Commission.
16. Education Labour Relations Council
(1) The Education Labour Relations Council will continue to exist,
subject to item 20.
(2) The registered scope of the Education Labour Relations Council
is the State and those employees in respect of which the Educators'
Employment Act, 1994 (Proclamation No. 138 of 1994), applies.
(3) Within 30 days after the commencement of this Act, the Education
Labour Relations Council must furnish the registrar with a copy of
its constitution signed by its authorised representatives, and with
the other information or documentation.
(4) The constitution agreed on between the parties to the Education
Labour Relations Council is deemed to be in compliance with this
Act: However, where any provision of the constitution does not
comply with the requirements of section 30, the registrar may direct
the Council to rectify its constitution and re-submit the rectified
constitution within the period specified in the direction, which
period may not be shorter than three months.
(5) If the Education Labour Relations Council fails to comply with a
direction issued to It in terms of subitem (5), the registrar must-
(a) determine the amendments to the constitution in order to meet
the requirements of section 30; and
(b) send a certified copy of the constitution to the Council.
(6) The Education Labour Relations Council must deal with any
pending application for admission to it in terms of the Education
Labour Relations Act as if the application had been made in terms of
this Act.
(7) Any pending appeal before the industrial court or an arbitrator
against a decision of the Education Labour Relations Council must,
despite the repeal of any of the labour relations laws, be dealt
with by the industrial court or arbitrator as if the application had
been made in terms of this Act.
(8) Despite the repeal of the Education Labour Relations Act, any
appeal against a decision of the Education Labour Relations Council
may be instituted after the commencement of this Act and must be
heard by the Labour Court and dealt with as if the application had
been made in terms of this Act.
17. Education sector collective agreements
The following provisions, read with the changes required by the
context, of the Education Labour Relations Act, despite the repeal
of that Act, will have the effect and status of a collective
agreement binding on the State, the parties to the Education Labour
Relations Council and all employees within registered scope-
(a) section 6(2) and (3);
(b) section 8(3), (4) and (5)(a);
(c) section 10(3) and (4);
(d) section 12(1) to (4), except that the disputes referred to in
subsections (2) and (4) may be referred to arbitration only; and
(e) section 13 and section 14(2).
18. Negotiating Forums in South African Police Service
(1) The National Negotiating Forum will continue to exist subject to
item 20.
(2) The registered scope of the National Negotiating Forum is the
State and those employees in respect of whom the South African
Police Service Rationalisation Proclamation, 1995 and the Act
contemplated in section 214 of the Constitution applies.
(3) Within fourteen days of the commencement of this Act, or signing
of its constitution by its authorised representatives, whichever is
the later, the National Negotiating Forum must furnish the registrar
with a copy of its constitution signed by its authorised
representatives, and with the other information or documentation.
(4) The constitution agreed to by the National Negotiating Forum is
deemed to be in compliance with this Act. However where any
provision of the constitution does not comply with the requirements
of section 30, the registrar may direct the National Negotiating
Forum to rectify its constitution and re-submit the rectified
constitution within fourteen days.
(5) The National Commissioner of the South African Police Service
must deal with any pending application for registration and
recognition in terms of the South made' African Police Service
Labour Regulations as if the application had been in terms of this
Act
19. Collective agreement in South African Police Service
The provisions of the South African Police Service Labour Relations
Regulations, read with the changes required by the context, despite
the repeal of those regulations, will have the effect and status of
a collective agreement binding on the State, the parties to the
National Negotiating Forum and all the employees within its
registered scope.
20. Consequences for public service bargaining institutions when
Public Service Co-ordinating Bargaining Council is established
When the Public Service Co-ordinating Bargaining Council is
established in terms of item 2 of Schedule I-
(a) the Public Service Bargaining Council and its chamber at central
level will cease to exist; and
(b) the following chambers of the former Public Service Bargaining
Council will continue to exist as juristic persons, despite
paragraph (a), namely-
(i) the chamber for each department, which will be deemed to be a
bargaining council that has been established under section 37(3)(a)
of this Act for that department;
(ii) the chamber for each provincial administration, which will be
deemed to be a bargaining council that has been established under
section 37(3)(a) for that provincial administration; and
(c) the Education Labour Relations Council will be deemed to be a
bargaining council that has been established in terms of section
37(3)(b) of this Act for the education sector;
(d) the National Negotiating Forum will be deemed to be a bargaining
council that has been established in terms of section 37(3)(b) of
this Act for the South African Police Service.
Part E-Disputes And Courts
21. Disputes arising before commencement of this Act
(1) Any dispute contemplated in the labour relations laws that arose
before the commencement of this Act must be dealt with as if those
laws had not been repealed.
(2) Despite subsection (1), a strike or lock-out that commences
after this Act comes into operation will be dealt with in terms of
this Act. This rule applies even if the dispute giving rise to the
strike or lock-out arose before this Act comes into operation.
(3) For the purposes of a strike or lock-out referred to in subitem
(2), compliance with section 65(l)(d) of the Labour Relations Act,
section 19(l)(b) of the Public Service Labour Relations Act and
section 15(l)(b) of the Education Labour Relations Act will be
deemed to be compliance with section 64(l)(a) of this Act.
21A. Dispute resolution by councils before their accreditation
(1) Despite the provisions of section 52, a council may attempt to
resolve through conciliation –
(a) any dispute that may be referred to it in terms of this Act
before 1 December 1996; and
(b) if the council has applied for accreditation in terms of section
127 of this Act before 1 December 1996, also any dispute so referred
to it after 1 December 1996 but before the governing body of the
Commission has made a decision on that application in terms of
section 127(5) of this Act.
(2) For the purposes of subitem (1), any person appointed by a
council to perform on its behalf the dispute resolution function
referred to in that subitem will be competent to exercise any of the
powers conferred on a commissioner by section 142 of this Act,
except the powers contemplated in subsection (1)(c) and (d) of that
section. In applying that section for the purposes of this subitem,
that section must be read with the changes required by the context,
and any reference in that section to the director must be read as a
reference to the secretary of the council.
(3) A council must refer to the Commission, for arbitration, any
dispute that –
(a) was referred to the council in terms of this Act on the
authority of subitem (1); and
(b) remains unresolved after the council has attempted to resolve it
through conciliation; and
(c) is by this Act required to be resolved through arbitration.
22. Courts
(1) In any pending dispute in respect of which the industrial court
or the agricultural labour court had jurisdiction and in respect of
which proceedings had not been instituted before the commencement of
this Act, proceedings must be instituted in the industrial court or
agricultural labour court (as the case may be) and dealt with as if
the labour relations laws had not been repealed. The industrial
court or the agricultural labour court may perform or exercise any
of the functions and powers that it had in terms of the labour
relations laws when it determines the dispute.
(2) Any dispute in respect of which proceedings were pending in the
industrial court or the agricultural labour court must be proceeded
with as if the labour relations laws had not been repealed.
(2A) In relation to any proceedings which, in terms of this
Schedule, are brought or continued before the industrial court, the
rules which, immediately before the commencement of this Act, were
in force under the provisions of paragraphs (c ) or (d) of section
17(22) of the Labour Relations Act will apply as if those provisions
had not been repealed, subject to subitem (2B).
(2B) The Minister, after consultation with the president of the
industrial court, may make rules in accordance with the provisions
of paragraph (c ) of section 17(22) of the Labour Relations Act and,
in accordance with the provisions of paragraph (d) of that section,
may repeal or alter any rule so made, as well as any of the rules
contemplated in subitem (2A), as if those provisions had not been
repealed and the Minister where the Board contemplated in those
provisions.
(3) Any pending appeal before the Labour Appeal Court established by
section 17A of the Labour Relations Act must be dealt with by the
Labour Appeal Court as if the labour relations laws had not been
repealed.
(4) Any pending appeal from a decision of that Labour Appeal Court
or any appeal to the Appellate Division from a decision of the
Labour Appeal Court in terms of section 17C and section 64 of the
Labour Relations Act must be dealt with as if the labour relations
laws had not been repealed.
(5) Any appeal from a decision of the industrial court or the
agricultural labour court in terms of subitem (1) or (2), must be
made to the Labour Appeal Court established by section 167 of this
Act, and that Labour Appeal Court must deal with the appeal as if
the labour relations laws had not been repealed.
(6) Despite the provisions of any other law, but subject to the
Constitution, no appeal will lie against any judgement or order
given or made by the Labour Appeal Court established by this Act in
determining any appeal brought in terms of subitem (5).
22A. Minister may authorise Commission to perform industrial court’s
functions
(1) The Minister, after consulting the Commission, may authorise the
Commission, by notice in the Government Gazette, to perform the
industrial court’s functions in terms of item 22(1) –
(a) in respect of the Republic as a whole or any province specified
in the notice; and
(b) with effect from a date so specifies.
(2) The authorisation of the Commission in terms of subitem (1) –
(a) does not affect the competence of the industrial court in terms
of item 22(1) to decide and finalise all pending matters that are
partly heard by it as at the date when the authorisation takes
effect, nor does it relieve that court of its functions, duties and
responsibility with regard to those matters;
(b) does not empower the Commission to perform any of the industrial
court’s functions with regard to the matters mentioned in paragraph
(a); and
(c) has the effect of substituting the Commission for the industrial
court in so far as all other pending matters are concerned.
(3) In the application of this item –
(a) the provisions of item 22(1) will apply to the Commission in all
respects as if it were the industrial court; and
(b) the rules governing the proceedings at the industrial court in
terms of item 22(2A) and (2B) will apply to the proceeding at all
pending matters to be decided by the Commission by virtue of its
authorisation in terms of this item.
Part F-Pension Matters
23. Continuation of existing pension rights of staff members of
Commission upon assuming employment
(1) Any staff member of the Commission who, immediately before
assuming employment with the Commission, is a member of the
Government Service Pension Fund, the Temporary Employees Pension
Fund or any other pension fund or scheme administered by the
Department of Finance (hereinafter referred to as an officer or
employee), may upon assuming that employment-
(a) choose to remain a member of that pension fund, and from the
date of exercising the choice, the officer or employee, despite the
provisions of any other law, will be deemed to be a dormant member
of the relevant pension fund within the contemplation of section
15(l)(a) of the General Pensions Act, 1979 (Act No. 29 of 1979);
(b) request to become a member of the Associated Institutions
Pension Fund established under the Associated Institutions Pension
Fund Act, 1963 (Act No. 41 of 1963), as if the Commission had been
declared an associated institution under section 4 of that Act; or
(c) request to become a member of any other pension fund registered
under the Pension Funds Act, 1956 (Act No. 24 of 1956).
(2) In the case where an officer or employee becomes a member of a
fund after making a request in terms of subitem (1)(b) or (c)-
(a) the pension fund of which the officer or employee was a member
("the former fund") must transfer to the pension fund of which the
officer or employee becomes a member of ("the new fund") an amount
equal to the funding level of the former fund multiplied by its
actuarial liability in respect of that officer or employee at the
date the officer or employee assumes office with the Commission,
increased by the amount of interest calculated on that amount at the
prime rate of interest from the date when employment with the
Commission commenced up to the date of transfer of the amount;
(b) membership of the officer or employee of the former fund will
lapse from the date when employment with the Commission commenced,
and from that date the officer or employee will cease to have any
further claim against the former fund except as provided in
paragraph (a); and
(c) the former fund must transfer any claim it may have against the
officer or employee, to the new fund.
(3) In the case where an officer or employee becomes a member of a
new fund after a request in terms of subitem (1)(c) the State must
pay the new fund an amount equal to the difference between the
actuarial liability of the former fund in respect of the officer or
employee as on the date of the commencement of employment with the
Commission, and the amount transferred in terms of subitem (2)(c) to
the new fund, increased by the amount of interest thereon calculated
at the prime rate from the date of commencement of employment up to
the date of the transfer of the amount.
(4) Subitems (2) and (3) will apply, read with the changes required
by the context, in respect of any officer or employee who, by reason
of having made a choice in terms of subitem (1)(a), has become a
dormant member and thereafter requests that the pension benefits
that had accrued, be transferred in terms of section 15A(1) of the
General Pensions Act, 1979, to another pension fund referred to in
that Act or a pension fund registered in terms of the Pension Funds
Act, 1956.
(5) If, after an officer or employee has become a member of any
other pension fund, by reason of having made a choice in terms of
subitem (1)(c), a lump sum benefit has become payable by that
pension fund by reason of the death, or the withdrawal or
resignation from the pension fund, or retirement, of the officer or
employee, or the winding-up of the pension fund, then, for the
purposes of paragraph (e) of the definition of "gross income" in
section I of the Income Tax Act, 1962 (Act No. 58 of 1962), the
pension fund will be deemed, in relation to such officer or
employee, to be a fund referred to in paragraph (a) of the
definition of "pension fund" in section I of that Act.
(6) For the purposes of this item-
"actuarial liability" of a pension fund in respect of a particular
member or a group of members of the fund, means the actuarial
liability that is determined by an actuary who the Minister has
nominated for that purpose;
"funding level", in relation to a pension fund, means the market
value of the assets of the fund stated as a percentage of the total
actuarial liability of the fund, after those assets and liabilities
have been reduced by the amount of the liabilities of the fund in
respect of all its pensioners, as determined at the time of the most
recent actuarial valuation of the fund or any review thereof carried
out under direction of the responsible Minister; and
"prime rate of interest" means the average prime rate of interest of
the three largest banks in the Republic.
Part G – Essential Services
24. Essential ser vices in the public service
(1) An essential service contemplated in section 20(1) of the Public
Service Labour Relations Act will be deemed to have been designated
an essential service in terms of this Act for a period ending on a
date 10 months after the commencement of this Act or on the date of
the publication of the notice of designation mentioned in subitem
(2), in the Government Gazette, whichever date occurs first
(2) The essential services committee must, in the case of the
services contemplated in section 20(1) of the Public Service Labour
Relations Act, as soon as possible after the commencement of this
Act, make a new designation, under section 71 of this Act, of
services that are essential services. Such a designation will be
effective from the date of the publication of the notice of
designation in the Government Gazette in terms of section 71(8) of
this Act.
25. Essential services provided for in Labour Relations Act
(1) The services, in which employers referred to in paragraphs (a)
and (b) of section 46(1) of the Labour Relations Act, and employees
referred to in paragraphs (e) and (f) of that section, are engaged,
as well as any service contemplated in paragraphs (a) or (b) of
section 46 (7) of that Act in which the employers and employees to
whom a notice in terms of the latter section applied immediately
before the commencement of this Act, are engaged, will be deemed to
have been designated essential services in terms of this Act for a
period ending on a date 10 months after the commencement of this Act
or on the date of the publication of the notice of designation
mentioned in subitem (2), in the Government Gazette, whichever date
occurs first
(2) The essential services committee must, in the case of the
services contemplated in subitem (1), as soon as possible after the
commencement of this Act, make a new designation, under section 71
of this Act, of services that are essential services. Such a
designation will be effective from the date of the publication of
the notice of the des |
Member
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